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Indira's Ire

By Indira Jaisingh And Malini Ghose

Times Of India
04 July, 2003

She is arguably India’s best known practising woman lawyer. But Indira Jaisingh is also a passionate advocate of women’s issues. A founding member of Lawyers’ Collective, she was actively involved in lobbying the government on the Domestic Violence Bill. With Parliament failing to take up the Bill in its last sitting, Ms Jaisingh lays bare its shortcomings to Malini Ghose:

Why do we need a new law on domestic violence? Aren’t the existing laws adequate?

This isn’t a new law but the only comprehensive law on domestic violence. As of today, there are certain criminal laws that address domestic violence against the wife but none that address violence against sisters, daughters, mothers and mothers- in-law. The existing criminal law does not address a woman’s needs for residence or maintenance, for instance. The proposed law allows women in domestic relations with the aggressor to seek a whole range of civil remedies under a single-window clearance system. Sending the husband to jail might not be the solution that a woman facing domestic violence needs.

Where did the impetus to formulate a law on domestic violence come from? How long has the process taken?

The impetus came from increasing domestic violence against women and the absence of effective civil remedies to deal with it. The process has taken over 10 years. In 1992, the Lawyers’ Collective, inspired by laws in other countries on the issue, drafted and circulated a model law on domestic violence. In 1994, a committee set up by the National Commission for Women came up with a draft proposal. Four years later, the Lawyers’ Collective, in consultation with various women’s groups, proposed an alternative Bill in accordance with the UN Framework for Model Legislation on Domestic Violence. Under pressure from women’s groups, the Central government introduced a Bill on domestic violence in the Lok Sabha in 2001. This was re-presented in Parliament on March 8, 2002 and referred to a standing committee.

Is this Bill supported by women’s groups?

No, because the Bill ignores many of the demands of women’s groups, as enunciated in the alternative Bill.

What are the points of disagreement?

There are many — ranging from the definition of domestic violence to the fact that the aggressor has been granted a right to self defence under the proposed law. Then there are questions about the reliefs allowed to aggrieved women and the fact that they can be sent for mandatory joint counselling along with the aggressor. All these and many other provisions have dangerous implications for women.

What was the response of women’s groups?

They protested in different ways and were ultimately successful in getting the Bill referred to the parliamentary standing committee attached to the ministry of human resource development. This committee, after countrywide consultation, submitted its re-commendations to the Rajya Sabha in December 2002. These recommendations accept most of the demands of the women’s groups except the definition of domestic violence.

What is the problem with the definition?

Basically, it fails to define domestic violence and leaves it to the judges to decide. It gives too little to the aggrieved and leaves too much to the judges. While the definition does include both physical and mental violence, it includes under domestic violence only acts that amount to “habitual” assault and those that make the life of a woman “miserable”. The usage of such words as “miserable” also renders the law very subjective.

Anyone who’s argued cases on behalf of women in abusive situations will know how difficult it’s to convince the judges about the existence of violence in all its manifestations. Judges tend to think that their role is to “preserve the marriage” by condoning violence and asking the woman to “forgive and forget”. But condoning violence can in fact lead to further violence and, in some cases, even death.

Much has been said about the so-called misuse of Section 498A IPC, which deals with mental cruelty. Will this increase under the new law?

Any and every law is capable of being misused and that in itself is no argument for not enacting a law. As far as Section 498A is concerned, there is no data on its misuse. While it’s true that many of the cases under this provision are later withdrawn by women, that’s not because they were misusing it in the first place. They are often coerced to withdraw the cases.

We should be more concerned with protecting women from being beaten and killed in their homes rather than with how we can protect men from any alleged misuse of the law. Moreover, this is a civil law that does not involve imprisonment of the aggressor. It merely restrains men from committing acts of violence.

Are you hopeful that the Bill will be passed?

Most governments in this country verba-lise their commitment to women’s issues. India also happens to be a signatory to many international covenants. All this, along with the committee’s report, makes one hope that this Bill might see the light of day. But it’s up to the government to live up to the expectations of half its citizenry. We also hope the government will consider the definition of domestic violence as provided in the UN framework I mentioned earlier.