New Delhi: For 24 years since they were married in 1998, S* has endured physical and mental abuse from her husband, who has beaten, punched and kicked, tried to strangle and stab and threatened to throw acid on her.
For all these years, S, a 43-year-old Delhi domestic worker and mother of two, lived with her injuries and her fear. We heard her story in April, 2023 when she was referred to us by a worker from a government creche or anganwadi.
With our help, S filed an application for protection under section 12 of the Protection of Women from Domestic Violence Act 2005 in the Saket district court in south Delhi. In July 2023, a magistrate issued a “protection order”, restraining her husband from abusing her in all manners prohibited under the Domestic Violence Act 2005: physical, verbal, economic and sexual.
S’s moment of respite and relief lasted less than 24 hours. She was deeply mired in a legal maze that frustrates most domestic violence survivors despite the 18-year-old law meant to protect them.
The day after the court order, S spotted her husband stalking her on her way to work. Over the days that followed, he caught up with her at the house to which she had moved to in May 2023 and continued to beat, kick or otherwise attack her with sticks, belts and steel utensils, often in the presence of their children.
S and her two children, an 18-year-old son and five-year-old daughter, moved home three times in six months to escape her husband, but he tracked her down each time, and the abuse continued. In the latest instance, he followed her everywhere, abused her, and accused her of being a prostitute.
S went back to court, requesting enforcement of the magistrate’s order—a common occurance, in our experience, faced by women in immediate danger who try to access the existing mechanisms provided under the domestic violence law for their safety and wellbeing.
Mired In Legal Quicksand
S is the primary breadwinner for her family. Her husband has a substance-abuse problem, drinks and smokes weed and refuses to take care of the family.
The abuse has left S with severe injuries, including cuts and bruises on her hands, neck and chest, and mental trauma. He beat her so severely once that the hospital she went to issued a “medico-legal certificate”, a certification that she had been attacked and injured. Such certificates are used to prove assaults.
The court assigned S with a “protection officer”, a woman, as most protection officers are. They are not police officers but officers of the court for purposes of the law, usually with a law or postgraduate degrees in social work.
When S contacted the protection officer and told how her husband had disregarded the protection order, the protection officer asked her to complain to the the local police station.
When she went to the police station, S realised, the police did not know what a protection order was, were not sure if enforcing it was their responsibility, or, if it was, how to do so.
“I thought that the court order would keep me safe, but I was scared for my life and the police were discouraging me,” said S. “I had to go into hiding at my employer’s place for sometime.”
The police asked S to ask the court for specific directions to the police officers concerned. S complained to the police about 10 times over two months.
We sought the court’s “urgent intervention” at least three times since July 2023 before the magistrate warned the police, who reluctantly registered a first information report (FIR) against her husband at the end of August 2023.
But the FIR was under peripheral sections of the Indian Penal Code, 1860, such as criminal intimidation, which is a non-cognisable (meaning the police cannot act without a magistrate’s order) and bailable offense, punishable with a fine and/or imprisonment for a term which may extend to two years.
The police did not take into account cognisable and non-bailable offences relevant to S’s case, such as cruelty to married women, which would ensure that S’s husband would have to execute a bail bond, a legal assurance that he would not harass, stalk or attack her and would be arrested if he did.
Since the case filed provided for none of this, S and her children remained unsafe. Nothing had changed when this story was published.
Legal Protection, But Without Clarity
The domestic violence act offers legal protection under civil law to women seeking protection from abuse within their households, when they do not wish to file a criminal case, often due to societal and other factors, but it is also legally vague about precisely whom they can approach.
The ambiguity in the domestic violence act has led to widespread ignorance and violations of the law.
Section 18 of the domestic violence law says a court can issue protection orders to ensure the safety and security of survivors. These orders usually prohibit husbands, in-laws, or any members of the shared household from violence against the survivor.
The state government is meant to appoint a protection officer to assist survivors, including with registration of complaints, medical examination and finding her a shelter home.
Rule 15 of the Protection of Women from Domestic Violence Rules 2006 says a survivor can request help from the protection officer, court, or the police, but rule 15(8) requires that a breach of a protection order be immediately reported to the local police, who must deal with it as a cognisable offense.
So, the domestic violence law is unclear about which authority survivors can approach when a protection order is violated.
The first responders, the police, often dodge their responsibilities due to this vagueness, a significant lacunae in a law that requires a clear demarcation of roles, duties and powers of each of these authorities when a protection order is violated.
Survivors who go to the police when a protection order is violated, in many cases, are asked to instead approach a court for orders, even when protection orders have been already passed in favour of the survivor and a cognisable offence has been made out.
This leaves the survivor with effectively no remedy.
Where a protection-order violation has occurred outside the jurisdiction of the local police station where the survivor lives, the police authorities often refuse to even file a complaint, making the survivor run from one police station to another.
‘He Will Love You Some Days, Hate You Other Days’
The domestic violence law requires the police to register, like any cognisable offence, an FIR against the alleged abuser, if a survivor directly reports a breach of the protection order.
A constitution bench of the Supreme Court in a 2014 case called Lalita Kumari vs Govt. of U.P said the police had to register an FIR under section 154 of the Code of Criminal Procedure 1973, if the information given by the complainant fit the description of a cognisable offence.
The Supreme Court said that a preliminary inquiry may be conducted for ‘matrimonial disputes’ to hear the complainant and gauge if a cognisable offence has been committed. The scope of the inquiry does not extend to checking the veracity of the complainant’s statements.
Survivors should not be burdened with approaching the court when protection orders are violated because these cases often require swift and decisive action from the police, given the threat of serious violence.
In S’s case, there was a serious risk to her life. In such cases, only the police can provide a prompt and competent intervention.
When S tried to file a complaint at the police station after her husband attacked her, despite the protection order, while she was on her way to work, they told her it was a “small” dispute between a “husband and wife”.
S quoted the police officer as saying that “fights are normal between a husband and a wife, it is fine. He will love you some days and hate you on other days, forget everything and make up with your husband”. The officer, S said, told her that the police station was not the appropriate forum, especially since her case is already pending before the Court.
Risks To Life & Limb, While Protected By The Law
Even if survivors’ complaints are registered, investigating officers tend to use informal methods to enforce the protection order rather than filing an FIR.
Over two months, Z*, a 35-year-old homemaker from an underprivileged background, filed four written and four verbal complaints to the police against her husband for violating a protection order.
Yet, the investigating officer told Z that they could, at best, threaten her husband and that they did not have the power to file an FIR or take other punitive measures.
So, even after reporting to the protection officer, police and magistrate, survivors are left without any effective or immediate remedies, even as abusive spouses or family threaten or harm them. In some cases their lives are at risk, all the while protected, in theory, by the law.
Women from marginalised families or circumstances face additional vulnerabilities, which make it even more difficult to access the protections afforded by the domestic violence law.
Giving More Teeth To Protection Orders
Many survivors continue to share households or stay in the same vicinity as their abuser because they have no other options or support. Abusers often use their economic and social dominance to continue intimidation, especially to coerce them into revoking any legal remedy they may be pursuing.
Survivors like S and Z, both domestic workers, daily wage earners and homemakers, find it even more difficult to approach a court or the police. They lose faith in the legal process, since it is not just cumbersome, but seemingly ineffective in ensuring their right to live peacefully and safely.
Survivors are often left with no option but to accept abuse as a way of life.
It is clear the union government needs to clarify and streamline the procedure that has to be followed by survivors when a protection order is violated. Even a clarifying court judgement should help.
Protection orders also need more teeth. That can be done by making clear the powers of the concerned police station house officer to protect survivors of domestic violence and register FIRs, also making it explicit to police officers that violation of protection orders is a cognisable non-bailable offence.
(Aparimita Pratap and Priyanka Prasanth are lawyers working at the Migration and Asylum Project as Catalyst for Change Fellows in their Support for Survivors of Sexual and Gender Based Violence Programme.)
* Names changed for anonymity
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