The Protection of Women from Domestic Violence Act, 2005 (PWDVA) kindled the hopes of millions of Indian women who are subjected to domestic violence. It was enacted to protect all women, across the religious divide, from violence within the family. And yet for multitudes of women the law has remained a paper tiger.  Even the fortunate few, who secure positive orders, are unable to enforce them.  So the question remains – how to make this innovative law work for those who are in acute need of its protective mantle.

An interesting aspect of this Act is that though it is a civil law, it has criminal consequences. What does this really mean?

At the initial stage, when an aggrieved woman approaches the magistrate for reliefs such as a protection order, an injunction securing her right to reside in the matrimonial home, maintenance, custody of children etc. it is treated as a civil application. However, while granting these reliefs, it also contains a subtle warning to the husband / male relatives to restrain from further acts of violence.

If an interim or final order is violated,  section 31 of the Act provides for criminal action such as imprisonment up to one year or rupees twenty thousand fine, or both. At this stage it becomes a cognizable and non-bailable offence.  Rule 15 (4) allows the victim to approach a police officer directly if she so chooses. The Act mandates that the officer shall register an FIR under S. 31 and also add any other relevant sections as applicable and proceed in accordance with law. This section is very seldom used by the aggrieved woman.

When Anisa approached Majlis after facing severe domestic violence from her abusive and alcoholic husband and was forced out of her matrimonial home along with her 15 year old daughter, we filed for reliefs under the PWDVA. The courts granted maintenance and  residence orders permitting her  to reside in the matrimonial home.

Defying this order, her husband rented out the flat to a tenant and restrained Anisa’s entry into the matrimonial home. Each time she attempted to enter the premises, the husband and the tenants throttled her efforts.  Her efforts to enter the home with the help of the local mahila mandal were also not successful and Anisa was loosing hope.

At this point Majlis decided to use the innovative S. 31 of the Act and approach the police for violation of the order. It was shocking that after almost 12 years of passing of the Act, the local police were clueless about the procedure of filing an FIR under S. 31 of the PWDVA. They had never done it before. It was a major struggle, approaching senior officers, and repeatedly explaining to them the legal provision. Finally they relented and an FIR under S. 31 was lodged.

This turned out to be the turning point in her case. The stringent provision of S. 31 with the mandate for arrest ensured that in the next two days the tenants vacated the flat and Anisa and her daughter were given peaceful possession.

Though Anisa had a positive order under PWDVA,  it was not worth the paper it was printed on, until we used the provisions under S. 31 to enforce the order. Not many women use this provision when respondents refuse to abide by the order of the magistrate. But it is the seriousness of criminal consequences that the Act provides by way of S. 31 which gives it the teeth it needs.

Majlis believes that the only way to make the system work is to engage with it and ensure that women’s rights are protected on the ground. This learning experience will ensure that more women are protected from domestic violence and that orders of magistrates do not remain paper tigers.   

Zeenat was shown a rosy picture of marriage. A well settled loving husband, an understanding family… she thought she had it all. After completing her B.Com choose to get married rather than pursue a career. Taking care of a family and home was after all a full time task. The wedding was a big affair. Zeenat was presented with a Mehr of 10 Tolas of gold and some valuables.
 
But soon after marriage reality struck and the rosy picture began to melt away. Differences arose and harassment from his family began. Zeenat and her husband were asked to live separately. It was then that Zeenat saw the true picture of her husband. She soon realised that her husband was not ‘well settled’ infact he did not earn enough to maintain their needs. There were times when there was no electricity or water as the bills were not cleared. Not able to make ends meet he blamed Zeenat for his condition and accused her of breaking up his family. When Zeenat told him she too could work and contribute he refused and started suspecting her intentions. He then put restrictions on her, even refusing to let her speak to her mother. Her life was filled with drudgery, despair and loneliness. When Zeenat could not take it anymore she left and came to live with her mother.
 
Sneha a local NGO whom Zeenat had approached, referred her to Majlis. Zeenat’s immediate question was that her husband had called her to bank to open their joint locker claiming he would give her the gold that her mother gave her but not her Mehr. We advised her against going. We feared that once the joint locker was open her husband may take away the entire gold and she would never be able to trace it again. We advised her it was best we get her belongings and Mehr from court as both were legally and rightfully hers.
 
We filed her case under the Protection of Women under Domestic Violence Act, 2005, through a Protection Officer. We argued for interim maintenance and return of her belongings and Mehr. The husband claimed he was not earning and hence could not pay maintenance. We produced bills of his treatment at Jaslok hospital and pointed out to the court – if a man can afford an expensive hospital for his own treatment he could definitely pay maintenance to his wife. Zeenat was granted interim maintenance. The Court also passed an order for the release of Zeenat’s belongings and her Mehr. The Protection Officer was ordered to help Zeenat regarding the same. Zeenat was relieved that her rights had finally been protected.
 
But her relef was shortlived. Her husband appealed against the maintenance order in Session court. Simultaneously he filed a case in family court under “restitution of conjugal rights’ asking her to come back. In the Sessions Court we placed all facts before the judge and explained that Zeenat did not want to go back to her violent husband and wanted a Khula. The Judge was supportive of her decision and convinced the husband to settle the matter. Her husband finally agreed and Zeenat not only got her Mehr but also a lumpsum settlement amount of Rs. 2,75,000/-. We simultaneously approached the local Kazi where her Khula was granted. The entire case took a year to end.
 
“It is so much more than I expected. I wanted to get out of a bad marriage but everyone said I would have to give up my right to Mehr. Majlis helped me secure my dignity and my rights” says a relieved Zeenat. “It is a common misconception that Muslim women cannot ask for divorce. Or that if she asks for divorce she wil have to give up her right to Mehr. Since marriage is a contract the Quran has ensured that the scales are even. A wife  cannot be made to feel indebted to the husband forever. We have to protect her rights.” reiterates her lawyer at Majlis. Today Zeenat has started working and is negotiating her own life. 

This article is a part of the ‘Umeed:Stories of Hope’ published by Majlis Legal Centre.

Republished with permission from Majlis Legal Centre.