A study exposes crude insensitivity of the state towards implementing the law
By Nikhat,
So far as spousal violence in Gujarat is concerned, the figure is very disturbing; around 28% ever married women have experienced sexual or physical violence and 34% of such women have sustained serious injuries. The extent of reportability of cases of spousal violence is even more frustrating, only 30% (i.e. 1 in every 3) of such women has sought help to end the violence and 58% of such women have neither sought help nor told anyone about the spousal violence [1].
Further, Gujarat ranks 6th in the reported numbers of incidents of cruelty under section 498A of IPC and constitutes 65% of the total incidents of crime against women, which equivalents 8% of the all India statistics [2].
Wherever is domestic violence there exists a culture of silence and impunity, which is reflected in the low reporting of incidents of domestic violence in India generally and in Gujarat particularly. Therefore, implementation of the Protection of Women from Domestic Violence Act 2005 (PWDA) in its true letter and spirit becomes very important in the interest of justice and equity. Keeping this as its main objective, Centre for Social Justice has done a research to review the status of implementation of PWDVA in Gujarat. The research has covered 15 districts and 157 cases under its span.
This report has revealed certain important and startling facts, which certainly indicates towards the non willingness of the government to meet the ends of this progressive law.
As against the institutional arrangement mandated under the law, there has not been a single Service Provider [3] registered in Gujarat, similarly, the Health Services [4] for the purpose of this law has not been notified so far. Shelters homes [5] are notified by the State Department of Women and Child but ten districts out of total 26 districts have not a single shelter home[6].
The law requires every government to appoint Protection Officers (PO) [7], who are very important for the proper implementation of the law as he/she is the starting point of the DV cases, and also has to perform different duties at different stage of the investigation, trial and execution. Till date no independent, separate and full time PO has been appointed but instead, additional charge has been given to already over burdened District Social Defense Officers in 25 districts [8] and Zonal Dowry Prohibition Officers in four Municipal Areas of Ahmedabad, Surat, Rajkot and Vadodara [9]. Interesting to note that such officers are already handling Child Labour (Prohibition and Regulation) Act, Child Marriage Restraint Act, Persons with Disabilities Act, Dowry Prohibition Act and all social welfare schemes related to SC/ST, persons with disabilities, widows, senior citizens etc. and the Zonal Dowry Prohibition Officer has to handle entire zone i.e. 7-8 districts. Precisely, the PO has been assigned more than 40 different functions [10]. The result is very obvious that s/he has hardly any time for the aggrieved woman to receive her complaint, for service of notice, investigation, preparation and filing of Domestic Incident Report (DIR) to the Court, preparation of safety plan, attendance in trial and execution of the Court’s orders. The law very specifically envisages appointment of women POs [11]; so far Gujarat has only five women POs.
One of the key functions of the Protection Officer under this Act is to prepare a DIR and forward its copy to the concerned Judicial Magistrate (I-Class). It has great significance for the trial and passing of a just and proper final relief including interim order and even ex parte order, when needed. This provision is limited in a sense that it does not provide any time limit for its filing. According to the above study, the POs have not prepared and submitted DIR in 70% cases. In cases where it is filed in the Court, the POs took a lot of time in its filing, in only 5% cases it is filed within one week, in 24 % cases within 30 days, in 38% cases within 60 days, in 10% cases within 90 days and in 24 % cases it is filed after 90 days. In some of the cases it took more than nine months in filing DIR to the Court.
Similarly, the study found great delays in Service of Notice to the respondents by POs. The law requires service of notice within two days [12] but out of fifty two cases reviewed, in only 2.2 % cases it is served within the stipulated time. Likewise, in 9% cases within 7 days, 38% cases within 30 days, in 20% cases within 60 days and 34% cases notice is served after 60 days. There are some cases, in which, POs took more than nine months for the same and even worse in 14% cases notice has not been served. To its extreme, in almost 10 % cases, POs have not forwarded the complaint to the Judicial Magistrate (I-Class).
Since the Protection Officers are already handling too many charges, the same earlier office infrastructure is being used for office purpose under this Act, no separate office and staff such as clerk, counselors and messengers have been given to them by the Government, as specially provided under the Act [13]. The aggrieved women have to go through (if not hostile, then) the uncomfortable environment of the office in order to avail the protection of this law. The women have to tell her story in the open office in presence of all kind and category of people including male staff and outsiders. Noteworthy, a PO has given only ten thousand rupees towards the expenditure to be made under this law for the entire year.
The level of sensitivity and knowledge of POs, Judges and Police is always a concern. The State Department of Women and Child has organized only one orientation workshop on PWDVA for the POs only, Police and Judges have given no orientation and training on this law.
Till the time the case reaches the trial stage, the proceedings have already been delayed causing frustration and helplessness in the aggrieved women. The scene at the trial is also not very sensitive and welcoming. The Judges do not have copies of the Act; in many cases lawyers have provided copy of the bare Act. Delays in trials are as usual, the prescribed time limit of 60 days[14] for its completion, has hardly been taken care of. Out of 157 reviewed cases, only 8% cases are disposed off and rest is pending in the court. Out of the pending cases, 94% cases are pending from more than 60 days, 25% cases from 6 months, 36.3% from 12 months, 19% from 18 months, 2.5% cases from 24 months and 2% cases from 30 months. According to the study, only one case (0.7%) from Dangs has been disposed off within 60 days and on other hand many cases are pending in court from more than 800 days.
Precisely, delays in cases under PWDVA creep in from the very beginning of the case. At every stage of proceeding, particularly from lodging of complaints, to enquiry, DIR, service of notice, trial and to execution, the lack of sensitivity and knowledge makes the dream of domestic violence free homes a pipeline dream.
To set and sustain the wheel of gender justice in motion, full time and independent POs at district and block levels should be appointed and provided with necessary office assistance; service providers, shelter homes and health facilities in sufficient numbers should be registered and notified accordingly; all stakeholders especially police, judges and protection officer should be given periodic sensitization and training; considerable efforts should be made to spread awareness around the PWDVA and effective intra and inter departmental co-ordination between departments like women and child, health and family welfare, social justice, and law and justice including legal services authority at all level should be effectively made by issuing circulars, protocols and working guidelines for the conduct of functions under the Act.
It’s still not too late but even now the state will not break its long sleep, the history will term Gujarat, a state which failed PWDVA.
Reference-
1. National Family Health Survey III (NHFS III- 2005-06)
2. 2007 Crime Reporter, National Crime Record Bureau
3. Section 2(r) and Section 10 (1) of PWDVA 2005 r/w Rule 11(1) of the PWDV Rules 2006
4. Sections 2(j) and 7 of the PWDVA
5. Sections 2(t) and 6 of the PWDVA
6. State Notification GS-2-2007-MHY-102007-1605-A
7. Section 8 of PWDVA r/w Rule 3(1) of PWDV Rules 2006
8. State Notification GS-1-2007-MHY-102006-2671-A
9. State Notification GS-3-2007-DVA-102007-1885-A
10. Section 9 of PWDVA r/w Rules 8, 9 and 10 of PWDV Rules
11. Section 8(2) of the PWDVA
12. Section 13(1) of PWDVA r/w Rule 12(2)(a) PWDV Rules 2006
13. Rule 3(4) of PWDV Rules 2006-
14. Section 12 (5) of PWDVA