Day 14: Domestic violence and access to justice: Regional perspectives

On the 14th day of the 2022 Prajnya 16 Days Campaign Against Gender violence, we organised the "Domestic violence and access to justice: regional perspectives" panel discussion. South Asian states have passed laws on domestic violence but survivors still struggle to access justice. This panel brought together the experiences of Bangladesh, Pakistan, Sri Lanka and India. Watch a saved copy of the recording here.

Panelists: Sara Hossein, Bangladesh Legal Aid and Services Trust; Saba Shaikh, Dastak, Pakistan; Ermiza Tegal, lawyer, Sri Lanka; Shazia Choudhry, Oxford University and Philippa Williams, Queen Mary University of London. The session was facilitated by Suneeta Dhar.

This panel is part of the project Surviving Violence: Everyday resilience and gender justice in rural-urban India funded by the British Academy Heritage Dignity and Violence Programme HDV190009. Research partners: Queen Mary University of London, Chaitanya-The Policy Consultancy, Indian Institute of Technology Bombay, Institute of Development Studies Kolkata, Nari Samata Manch and University of Oxford.

"It almost seems like the COVID  pandemic underscored the structural nature of gender inequalities within and across countries, and it essentially brought to light the invisible, unrecognised pandemic of gender-based violence, domestic violence and intimate partner violence. I hate the word shadow-pandemic; I think that domestic violence is not a shadow pandemic. That it was given visibility during this time by the UN and other agencies speaks of how little attention this issue has got over time", Dr. Suneeta Dhar said, as she opened the session.

Shazia Choudhry, Oxford University and Philippa Williams, Queen Mary University of London:

• "PWDVA (2005) encompasses the broader definition of violence; it is not just about physical violence, but also about emotional, psychological, financial and sexual violence as well."
• "There were also problematic attitudes in terms of lawyers, unfortunately. Survivors' opinions about lawyers were actually mixed. In a few cases, survivors found their lawyers to be helpful, didn't charge them high fees and followed up their cases. Survivors who accessed their lawyers through NGOs had fairly positive feedback about their lawyers."
• "There are huge barriers to accessing formal justice. And, as a result, women, therefore, are more likely to turn to the informal mechanisms that actually exist. And, the most commonly accessible and prominent body was the panchayat."

Sara Hossein, Bangladesh Legal Aid and Services Trust

• "I think some of the crucial points about our (Bangladesh's) framework is that although we have this strong, constitutional mandate for equality, we, of course, know that, there lives, alongside, a lot of very contradictory, continuing, persistent discrimination in terms of the legislation, and that we have a legislative framework which inhabits three different centuries."
• "One of the really challenging limits of our legislation, in addition to the exclusions already mentioned about people with disabilities and sexual minorities is the exclusion of divorced women from the ambit of the protection of the domestic violence law."
• "While there is an increased awareness of domestic violence as a wrong, for which remedies are available, there is very little awareness of what those remedies are and very little awareness of where you can go to access services for remedies and protection."

Saba Shaikh, Dastak, Pakistan:

• "Mostly, women in Pakistan resolve issues by going to the locals or elders in the community. If, for example, that doesn't work out, then they will reach out to relatives or friends within the community who can possibly link them to other possible options."
• "Women's rights of freedom and choice and movement are severely restricted in the name of modesty or protection and they consider to epitomize honour and therefore any sort of measure that they take for their rights seems like they are bringing dishonour to the family."
• "Oftentimes there are judicial pronouncements which reflect the negative bias; we have had a lot of cases and judgements where you see the judges are using their own sort of subjective morality instead of really looking at the law."

Ermiza Tegal, lawyer, Sri Lanka

• "During the COVID pandemic, for example, and the lockdown restrictions, we only noticed that advisory services was what was possible. And then, all of the actual services required, even to come out of the house, to come out of your environment of abuse or environmental violence was not possible for women."
• "Sri Lanka also needs to be considered in its socio-political context of violence and impunity so there's a long history of violence, even today, with the Prevention of Terrorism Act being used against protestors in Sri Lanka."
• "Laws are really imperfect tools because they are products of our socio-political systems and we recognise this when we work with it. The Domestic Violence Act sits amongst laws that are very unfair on people, and they don't recognise the experiences of women, like cyber violence, care work is not recognised, abortion is an issue that still needs to be addressed, marital rape is explicitly recognised."

About the Speakers:

1. Sara Hossain is a Senior Advocate at the Supreme Court of Bangladesh, practicing in the areas of constitutional, corporate and family law. She is a partner at the law firm of Dr. Kamal Hossain

and Associates, and also serves pro bono as the Honorary Executive Director of the Bangladesh Legal Aid and Services Trust (BLAST). She is currently a Professor of Practice at SOAS, University of London. She is a Bencher of the Middle Temple. Sara was educated at Wadham College, Oxford (1988), and called to the Bar from Middle Temple (1989), then enrolled in the High Court Division of the Supreme Court of Bangladesh (1992) and the Appellate Division of the Supreme Court (2008). She has been involved in landmark cases and campaigns on gender equality (‘fatwa’ violence discriminatory rape laws,sexual harassment), prohibition of corporal punishment in schools, protection against torture and freedom of expression. Sara has received awards for her work from the Lawyers’ Committee for Human Rights, the US State Department (Women of Courage), ‘Ananya’ magazine (Top Ten), and was selected as a World Economic Forum Fellow and an Asia 21 Fellow.

2. Saba Shaikh is trained as a lawyer and also holds a degree in public policy. She works as a human rights advocate with over 14 years of experience in implementing and improving response strategies for those facing abuse, gender based violence or denial of their fundamental rights through provision of legal aid, training and community awareness. She is currently the Executive Director of Dastak Charitable Trust, an access to justice center for women and children that, among other programs, runs the only private shelter in the country for women and girls at extreme risk of violence. Saba has executed projects for a range of international organizations including Oxfam, Open Society Foundations, DFID, KIOS Foundation, and USAID among others. Saba is an Atlantic Council Emerging Leaders of Pakistan (ELP) Fellow 2012, Asia Society (India Pakistan Young Leaders Initiative) Fellow 2013 and US State IVLP Fellow 2019.

3. Suneeta Dhar is a Gender and Development Specialist with over four decades of experience on advancing women’s human rights. She has worked with community based civil society organizations as well as with international organizations. She is an external member of a few Internal Committees on Sexual Harassment of government and civil society organizations. Suneeta holds a Master’s degree in Social Work from the Tata Institute of Social Sciences, Mumbai, and has been a recipient of the Fulbright and Advocacy Institute Fellowships for Development Practitioners. She has co-authored research studies, training manuals, and papers on women’s safety, gender and SDGs, transformative governance and women’s rights. Suneeta was recognized by Apolitical’s 100 Most Influential People in Gender Policy in 2021.

4. Philippa Williams is research and teaching intersects political, economic and development geography, with a focus on everyday political life in India and its transnational community. More specifically, she interested in questions concerning how the state is experienced, how citizenship is articulated and how marginality, particularly in the context of violence/nonviolence is lived and increasingly how digital technology is mediating everyday political life in India. In the UK research she has also explored the lived implications of the Indian emigration state and the UK government’s hostile immigration policy for recent South Asian migrants.She is Primary Investigator on two live projects:1) Social media and everyday life in India with Lipika Kamra examines how WhatsApp is shaping everyday political life from the family to political party and the nation. The initial phase of this research was funded by WhatsApp. We are now embarking on a second phase focused on lived experiences of digital privacy in India.

5. Shazia Choudhry is Professor of Law and the Jeffrey Hackney Tutorial Fellow in Law at Wadham. She is also an Academic Bencher and Associate Academic Fellow at the Inner Temple.Her research is focused on gender, human rights and violence against women and seeks to examine various dimensions of these areas from an interdisciplinary and feminist perspective. In doing so she employs doctrinal, theoretical and empirical methods. Her scholarship sits at the interface of criminal law, human rights law and family law.She has published three books. 

6. Ermiza Tegal has a Masters in Law from the School of Oriental and African Studies (SOAS) in London. She has 15 years of litigating in public law, fundamental rights, land, labour and family law. She has served as a legal expert on State advisory committees on law reform. Her recent advocacy and research work involves law reform relating to family law, domestic violence, protection for victims of torture, counter terrorism and human rights, gender based violence and a people’s land policy. She is a founder member of Muslim Personal Law Reform Action Group advocating muslim family law reforms. She is also currently a visiting fellow with the Harvard Law School Program on Law and Society in the Muslim World and a member of the Feminist Collective on Economic Justice in Sri Lanka.

Day 16 -- Outlawing gender violence

For the last day, Prajnya organized a symposium, Outlawing Gender Violence, for legal professionals and students. Sexual Harassment, Sexual Assault and Violence and Domestic Violence were some of the key issues that were discussed.

The morning started off with a session on Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) and gender violence. Ms. Geeta Ramaseshan gave a background about the international agreement adopted in 1979 by the UN General Assembly. Countries that are part of the convention have committed to submit national reports on measures they have taken to comply with their treaty obligations. NGOs and women organizations send shadow reports to CEDAW on the ground realities. 

The second session focused on Indian laws relating to gender violence. The panel was composed of Ms. Vidya Chetan, Ms. K. Santhakumari and Ms. Sheila Jayaprakash. Ms. K. Santhakumari gave a history behind the crafting of the law on rape and sexual assault.  She touched on each type of assault and spoke about the drawbacks and deficiencies in the law especially in regards to marital rape. Ms. Sheila Jayaprakash talked about workplace sexual harassment. She touched upon the history that led to the Vishaka guidelines and talked about how companies should craft their sexual harassment policies. Ms. Vidya Chetan spoke about the Domestic Violence Act. 

After the presentation, participants broke out into three different groups where they got to sit with one of the lawyers and hear their expertise. The questions were varied and touched on a gamut of issues --- with regards to sexual abuse of children, what are the remedies available to victims? Can third-parties report incidents of sexual abuse of minors?; if a victim were to conceive because of a rape, what happens?; Are there women in supreme court?; What is the difference between corporate social responsibility (CSR) and sexual harassment policies?; If a man is wrongfully implicated as a perpetrator, what happens?

The third session focused on gender violence laws around the world. Ms. NV Sreejaya talked about the laws in the United Kingdom especially in regards to domestic violence and whether or not they have succeeded. Mr. Daniel Lee from the U.S. Consulate gave an overview of the American law. He touched briefly on domestic violence, workplace sexual harassment, hate crimes and same-sex marriages. Mr. Philipp Oliver Gross from the EU Delegation to India spoke about the European Union (EU) and violence against women. He said the EU Agency for Fundamental Rights was working on a survey across all 27 member states to measure the frequency and severity of violence against women in EU and the first survey results will be presented in 2013. 

A big thank you to the all presenters who shared their expertise and valuable time.

What laws govern domestic violence in India?

For the last day, Prajnya organized a symposium, Outlawing Gender Violence, for legal professionals and students. Sexual Harassment, Sexual Assault and Violence and Domestic Violence were some of the key issues that were discussed.

What Laws govern Domestic Violence in International Law?

The Convention on the Elimination of Discrimination against Women, or the CEDAW, deals with Domestic Violence. Article 2 speaks of comprehensive state obligation to eliminate discrimination against women, while Article 5 speaks of the elimination of prejudices and practices, based on the stereotyped roles of women and men, and Article 16 elaborates on the elimination of discrimination against women in marriage and family relations: equality of women and men, same rights and responsibilities.

What Laws govern Domestic Violence in India?

In India, the Protection of Women from Domestic Violence Act, 2005, primarily governs Domestic Violence. In addition, and Section 498-A of the Indian Penal Code, 1860, which speaks of cruelty, is also relied on.

What does the Protection of Women from Domestic Violence Act, 2005 say?   

The Act covers women who are or have been in a relationship with the abuser where both parties have lived together in a shared household and are related by consanguinity, marriage or a relationship in the nature of marriage, or adoption. It also includes relationships with family members living together as a joint family. Women who are sisters, widows, mothers, single women, living with the abuser are entitled to legal protection under the Act. It affirms a woman’s right to secure housing, and asserts the woman’s right to reside in the matrimonial or shared household. The Court is empowered to pass protection orders that prevent the abuser from aiding or committing an act of domestic violence. Domestic Violence is punishable with imprisonment for a term that may extend to one year with a fine, or both.

What does Section 498-A of the Indian Penal Code, 1860 say?   

Section 498-A deals with four kinds of cruelty by a husband or his family towards a married woman: conduct that is likely to drive a woman to suicide, conduct which is likely to cause grave injury to the life, limb or health of the woman, harassment with the purpose of forcing the woman or her relatives to give some property, or harassment because the woman or her relatives is unable to yield to demands for more money or does not give some property. The punishment is imprisonment for a term up to three years and a fine.