Law Analysis
Domestic Violence Act 2010: Reading between lines
I feel déjà vu while preparing this write up in the sense that back in 2005 I dedicated bit of our love, passion and labour to draft a statue on domestic violence at Ain o Salish Kendra (ASK).It is also heartening to see that Domestic Violence (Prevention and Protection) Act (Act LIV of 2010) that was set in motion on October 5, 2010 appears to be almost reflective of our humble efforts at ASK. A set of rules was also framed in May 2013. In this brief article an attempt has been made to examine the statute and make recommendations to make the law more functional.
Uniqueness of the Act 2010: The present Act provides for exhaustive provisions in dealing with issues relating to domestic violence of which salient features are given below.
a) Domestic Violence defined: The Act has provided a holistic approach in defining domestic violence that covers physical, psychological, sexual and economical aspects of the menace. The Act also elaborates an explanatory lists which fall within the ambit of domestic violence [Section 3].
b) Initiation of proceeding: An aggrieved person or enforcing officer, service officer or any other person (for example, a human rights activist) acting on his behalf may institute a petition in a prescribed form. Upon receiving such petition the Court concerned shall fix a date for hearing on the issue [Article 11].
c) Forum: The disposal and trial proceeding of domestic violence would be held in the Court of Judicial Magistrate or in the Court of Metropolitan Magistrate in metropolitan area [Section 21]. The appellate authority of this proceeding is Chief Judicial Magistrate or the Chief Metropolitan Magistrate as the case may be. The limitation of preferring an appeal is 30 days from the date of order [Section 28].
d) Enforcement officer: Upazila women affairs officer is the enforcement officer under the scheme of the statute [Section 2(14)]. The duty of Enforcement officer includes among others submitting a report, informing the police station, praying for protection order, keeping the lists of voluntary organisations, sending the victim to the safe custody, hospital and doing such other duties under the direction of the court [Section 6]. Departmental action may be warranted against an enforcement officer if he is found negligent or unwilling in discharging his duties under this Act [Section 34].
e) Right to stay: Upon a petition the Court may pass an order directing the opposite party not to obstruct the stay right of the victim in the house [Section 15(1). The Act unequivocally states that a victim shall have the right to stay in the joint house because of having his relation there [Section 10].
f) Safe custody: The court may also order for safe custody of the victim under the supervision of the enforcing officer in an appropriate situation [Section 15(2)].
g) Protection order: Upon perusing the petition along with the submitted papers the court may issue 7 (seven) days' show cause notice to the opposite party as to why protection order shall not be passed. Even, in appropriate cases the court may pass ad interim protection order without hearing the opposite party [Section 13].
h) Compensation: In case of domestic violence, the court may award compensation order directing the opposite party to pay the same to the aggrieved person. In awarding such compensation the court shall consider the nature and extent of the violence, cost of medical treatment, immediate and long term effects of violence, effects on current and future income of the victim, living style of the victim [Section 16]. It may be pointed out that the concerned Magistrate shall have the unlimited pecuniary power in awarding compensation in appropriate cases [Section 21(2)].
i) Safe custody of children: At any stage of the proceeding the Court may order for safe custody of the children of the aggrieved person to her or any other person acting on her behalf [Section 17].
j) Trial procedure: The Code of Criminal Procedure (V of 1898) is followed in the investigation, trial and proceeding. Summary trial procedure will be followed in disposal of the petition proceeding [Section 22]. With the consent of the parties or in the opinion of the Court the trial proceeding may be held in camera [Section 23].
k) Investigation: The Court may order for on- site investigation of the accusation and for this purpose time limit may be specified [Section 24].
l) Execution of order: The Court may execute its order by the process sever, enforcement officer and the police officer. The executing officer is to execute the court's order within 3 (three) days [Section 25].
m) Legal aid: Enforcement officer is duty bound to take proper steps for arranging legal aid for the victim within the purview of Legal Aid Act (Act VI of 2000) [Section 6]. The copy of orders of the Court will be provided to the parties and all other concerned free of costs [Section 18].
n) Compoundable offence: The offence under this Act is cognisable, bailable and compoundable [Section 29].
o) Punishment for false prosecution: The Act also provides for upto 2 (two) years imprisonment or fine upto 50000/= (fifty thousand) or both for false prosecution [Section 33].
p) Community engagement for delinquency: Failing to comply with the protection order or any other order of the court in this proceeding is an offence punishable with up to six months imprisonment or fine of Taka 10000/= (ten thousand) or both. In case of repeated delinquency higher punishment is awarded. However, the Court may direct the delinquent to engage in community activities for particular period in lieu of such sentence [Sections 30 & 31].
There is not a single case pending on domestic violence in the Court of Chief Judicial Magistrate at Kishoregonj. However, it does not mean that no such penal occurrence took place here. It appears that incidents of such issues go unreported to the law enforcing agency. Perhaps fear of further retaliation, high legal costs, illiteracy, mind set to take it as fate, patriarchy, lack of awareness, economic dependence and many other social barriers are responsible for not setting the law in motion even the offence is committed.
Despite our commitment to equal protection for male and female in our constitution and international human rights treaties like CEDAW, CRC, violence against women is still quite high in our society where domestic violence is widely prevalent in our everyday lives. Being vulnerable in a patriarchal society like ours women face myriad types of violence. Though present statute offers a holistic approach in dealing with the issue, law alone cannot guarantee the dignity and honour to women nor can punishment to the tormentors solely. What is basically needed is a change of mindset. To conclude, given the dimensions of the offence, relief offered in the statute, court atmosphere of the Magistracy and expertise of the family court in addressing almost similar issues, Judge of the Family Court would have the appropriate forum to deal with the issue of domestic violence.
The writer is Joint District and Sessions Judge.
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