Changing Contours of Fiscal Policy and Budgets to Address Violence against Women

Recent years have witnessed important changes in planning and budgetary processes in the country. The constitution of NITI Aayog in place of the Planning Commission, restructuring of the Union Budget following the Union Government’s acceptance of the 14th Finance Commission recommendations and measures undertaken for rationalisation of Centrally Sponsored Schemes have marked gender implications. They also have a bearing on public financing of government programmes in a range of sectors, including those meant to address violence against women. The analysis of schemes to address violence against women by state governments in Madhya Pradesh and Jharkhand presented in the chapter, reflects low priority towards the issue in the state budgets, indicating that the importance accorded to gender violence in policy discourse is yet to translate into budgetary priorities. The author concludes that budgetary dimensions of the state’s response to the issue require attention if we are to ensure a comprehensive response mechanism for women facing domestic violence.

Towards Uniformity of Rights

The chapter locates the PWDVA in the context of India’s multiple, religion-specific personal laws. It underlies three factors that allow PWDVA to establish common standards governing family life, despite un-common or separate family laws. First, the religion-neutral framing of the PWDVA and the judges’ understanding of domestic violence as a universal phenomenon cutting across religion. Second, though the DV Act concerns violence, it is designed essentially to protect the economic interests of women, which enables the Act to enter the domain of family law. And third, judges’ understanding that women face the same economic difficulties when their marriages break down, irrespective of religion. Focusing on the issue of maintenance, the chapter demonstrates, that the PWDVA because of the above three factors, allows judges to focus on their sameness rather than difference, and create common standards on maintenance irrespective of religion of the parties.

Marital Rape As Domestic Violence

Available data indicate that marital rape impacts the health and safety of women in much the same way as rape by a stranger. This chapter argues in favour of recognizing marital rape as a crime in India, by rebutting the forcefully held misconceptions that continue to be put forth as justifications for exempting marital rape as a criminal offence. The institution of marriage as a sanction for sex completely disregards the consent of the wife. This has the effect of condoning acts in the nature of domestic violence and must be recognized as a form of gender discrimination that negates the dignity, personal autonomy, and bodily integrity of married women. Analysis of existing legal provisions on spousal sexual violence under the PWDVA have been analysed to assess the scope of legal remedies available for marital rape.

Of ‘Keeps’ and ‘Concubines’

The Supreme Court in its decision in Velusamy v. Patchaiammal limited the scope of ‘relationship in the nature of marriage’ under the PWDVA and interpreted it as co-terminus with ‘common-law marriage’. By doing so, the Court left women in vulnerable intimate relationships without a remedy in law. The author argues that by transposing a non-statutory category (‘common-law marriage’) into the PWDVA, Velusamy watered down the promise of zero tolerance to violence within intimate domestic relationships. Using examples from the evolution of cohabitees’ rights in English law, the author argues that the Indian Constitution, in its framing of equality and right to life and personal dignity already provides the language and framework for protection to be extended to women in every stable cohabiting relationship. This is particularly significant in the Indian context where second wives and women in de facto marriages have little legal protection, even in situations of domestic violence.

Analysing Orders Granted under the PWDVA, 2005

This chapter describes the trends and patterns of usage of the PWDVA and examines judicial approaches towards adjudication under the Act. This chapter is based on an empirical analysis of approximately 7,000 Magistrate Court orders from 14 states between 2012 and 2013. The objective behind the analysis is to assess the implementation of the PWDVA in a manner true to its objectives. The analysis includes pattern of usage, profile of users, nature of DV, reliefs sought and granted, reasons for refusal to grant relief such as protection orders, compensation, residence orders, custody of children, maintenance orders. Judicial attitudes and adjudicatory practices indicate that courts tend to locate their maintenance decisions on a male ‘moral duty’ to maintain the wife or mother, rather than on her entitlement to economic support for the services she performs and that the judicial process mostly lacks the multi-agency approach envisaged under the PWDVA.

‘But … Where Will I Live?’

The chapter deals with women’s unequal rights to housing and draws on the related concepts of security of tenure and ownership rights, to explores the interlink between housing rights and domestic violence to show that protection of right to housing enhances and positively impacts women’s negotiating capacity in dealing with domestic violence. Locating domestic violence within the right to housing under international law the author demonstrates that domestic violence in the absence of security of tenure in the form of ownership or tenancy rights for women is a major cause of forced eviction and homelessness. The PWDVA provides security of tenure through Right to Reside and Residence Orders, in some situations barring the violent household member from remaining on the premises. Analysis of jurisprudence under ‘right to reside’ unmasks the complex nature of the Indian household and the nuances in the way the right has been interpreted and enforced by courts.

Some Thoughts on Domestic Violence

By placing violence within structural relationships that form a part, and support patriarchal hierarchies within the family, the author demonstrates how violence against women is central to maintaining men’s power and privilege over the women at home. Historically, socially and culturally there has been a complete normalization of the violence men have inflicted upon women within the household. Husbands, fathers, brothers all use violence when their self-assumed authority appears to be challenged, while women do not speak about the violence, often, because it is associated with some wrongdoing on their part. Change began only when women began to question such violence. The chapter traces the progress in jurisprudence on domestic violence over the years, reflecting on the deep-rooted patriarchal attitude persistent in courts, and current approaches to addressing domestic violence in an environment where backlash continues to prejudice women’s fight against domestic violence.

Unscrambling the Images

The chapter presents the underlying idea behind this volume and serves as an introduction to domestic violence and the law in India. Tracing the history of laws addressing domestic violence both as a crime and a civil wrong, the author explains how the collection of essays in this volume evaluate some of the essential concepts that shaped the framing of the PWDVA and its treatment in the hands of judges. Providing insights into the challenges faced in drafting and enforcement of the PWDVA, such as inclusion of women in ‘relationships in the nature of marriage’ and unique provisions such as the ‘right to residence’, the author discusses the extent to which PWDVA has succeeded in fulfilling its purpose and areas of enforcement that remain a challenge even after a decade.

Nature of Services Available to Women Survivors

The chapter traces the evolution of responses to domestic violence and other forms of violence against women in India and examines the existing evidence on services available for survivors, with special focus on One Stop Crisis Centres (OSCC) in terms of their location, objectives, and impact. The Chapter presents a comprehensive review of the existing One Stop Centers operational under the Ministry of Women and Child Development Scheme created under the Nirbhaya Fund. The authors evaluate the comprehensive response mechanism developed under the PWDVA and argue for an evidence based approach in setting up processes and mechanisms for responses for survivors of domestic violence.

Mapping Legislative Changes

The Protection of Women from Domestic Violence Act, 2005, (PWDVA) is a special civil law aimed at effective protection of the rights of women guaranteed under the Constitution who are victims of violence of any kind occurring within the family. 26 October 2016 marked the tenth anniversary of the enforcement of the PWDVA. The chapter examines the trajectory of legal developments that culminated in the enactment of the PWDVA as well as the gaps in the legal regime that the enactment of this law sought to overcome. Tracing the history of the women’s rights movement and its engagement with equality and violence against women, the author details the sustained campaign, spanning nearly a decade, by the Indian women’s movement, the drafting of the PWDVA by Lawyers Collective in consultation with the women’s movement and the challenges in its enactment.