Law Opinion
Domestic violence legislation
What model should be followed?
Md Al Amin Sagar
Domestic violence on women is best described as use of physical or sexual or emotional or verbal or economic abuse perpetrated by their close male or female relatives e.g. husband, son, father-in-law, male partner, daughter, mother-in-law, sister-in-law etc.
Need for special domestic violence legislation
Although 50 percent of total population of Bangladesh is women, domestic violence on them committed by family members or inmate male partners is still considered here as private matter and there is no special law relating to this offence. The mooting point is why special domestic violence preventive legislation is demanded for Bangladesh in spite of having various laws relating to violence against women? Article 2 of UN Declaration on Elimination of Violence Against Women, 1993 divides violence against women into three categories, e.g. physical, sexual and psychological violence occurring-
i. in family by family members, in non-spousal relationship by inmate male partner and violence related to exploitation,
ii. within general community by strangers and
iii. anywhere perpetrated or condoned by State.
Almost all of civil and criminal laws of Bangladesh deal with violence against women committed within general community by strangers with few exceptions e.g. dissolution of marriage, dowry related violence, dower, maintenance, guardianship and custody. Present laws are ignorant about issues of sexual abuse e.g. marital rape, verbal or psychological or economic abuse caused by domestic violence and also fail to provide adequate remedy. High probability of non-conviction of accused under existing laws lowers rate of filing cases comparing total incidents of domestic violence. In physical abuse, existing laws only protect victim of domestic violence, when grievous hurt is inflicted on her. Jatin Chandra Sil v The State 43 DLR (AD) 223 is a glaring example of this where habitual wife abuser accused husband was not content by striking his wife with branch of tree but also reckless enough to kick her in tender part of her body and she bled to death. Whole legal mechanism e.g. judges, lawyers, police, doctors, concerned authorities along with common people are very confused and reluctant to consider it as severe offence for lack of special legislation.
Legal aspects of enacting
There are two aspects of enacting special domestic violence legislation e.g. constitutional and international.
Constitutional aspect: Proclamation of Independence, 1971 and preamble of Bangladesh Constitution ensure equality, fundamental human rights, freedom and justice for all citizens. Article 10 provides for taking steps to ensure participation of women in all spheres of national life. Article 11 ensures respect for dignity and worth of human person and Article 19 guarantees equality of opportunity for all citizens. Article 8 provides that fundamental principles of state policy shall be applied in making laws, which is implied constitutional direction to enact domestic violence legislation.
Article 27 guarantees equality before law and equal protection of law for all citizens. Article 28 (1) prohibits to discriminate any citizen on ground only of sex. Article 28 (2) ensures equal rights of women with men in all spheres of State and public life. Article 31 guarantees right to enjoy protection of law, to be treated in accordance with law and prohibition in taking detrimental action to life, liberty, body, reputation or property of any person. Article 32 ensures protection of right to life and personal liberty except in accordance with law. Article 35 (5) says no person shall be subject to torture or to cruel, inhuman or degrading punishment or treatment. Article 26 (2) provides that State has to enact law in conformity with fundamental rights otherwise it would become void. State can make special provisions or laws in favour of women or children under Article 28 (4).
International aspect: There are three doctrines which involve State responsibility to combat domestic violence under international human rights law.
i. Due diligence:
Article 4 (c) of UN Declaration on Elimination of Violence Against Women, 1993 provides States should exercise due diligence to prevent, investigate, and in accordance with national legislation, punish acts of violence against women, whether those acts are perpetrated by State or private persons.
ii. Equal protection of law:
Article 2 of Convention on Elimination of All Forms of Discrimination Against Women, 1979 (CEDAW) obliges State parties to take the following steps to prevent discrimination against women and ensure equal protection of law for them: (a) legislative measures to prohibit all discrimination, (b) establishing legal protection of women's rights on equal basis of men and ensuring it through competent national tribunals and other public institutions, (c) to refrain from engaging in act or practice of discrimination, (d) to take measures including legislation to modify or ablish existing laws, regulations, customs and practices constituting discrimination.
iii. Domestic violence as torture: Article 1 of Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 1984 considers domestic violence as torture. Article 5 of Universal Declaration of Human Rights, 1946 (UDHR) and Article 7 of International Covenant on Civil and Political Rights, 1966 (ICCPR) provides that nobody shall be subjected to torture or cruel, inhuman or degrading treatment or punishment.
Suggested models
Following two models may be considered while enacting domestic violence legislation for Bangladesh.
UN model: UN Commission on Human Rights issued a framework for model legislation on domestic violence by a resolution on 2 February 1996 which is purported to serve as drafting to legislatures and organisations committed to lobbying their legislatures for comprehensive legislation on domestic violence.
Laws of other countries: About 53 countries of world have enacted domestic violence legislation. In India, there is Protection of Women from Domestic Violence Act, 2005 and in South Africa there are Domestic Violence Act, 1998 and National Instruction on Domestic Violence, 1999. In USA major laws are Violence Against Women Act (VAWA), 1994 and Family Violence Prevention and Services Act, 1984. In UK civil and criminal remedies for victims are available in Part IV of Family Law Act, 1996, Protection from Harassment Act, 1997, Housing Act, 1996, Children Act, 1989, Adoption and Children Act, 2002 and Domestic Violence, Crime and Victims Act, 2004.
Certain recommendations
The following provisions may be incorporated while drafting domestic violence legislation:
1. Separate family courts to deal family matters exclusively by special judges having civil and criminal jurisdiction.
2. Community police to enquire and investigate family matters having power to enter any place, rescue suspected victim and arrest accused without warrant.
3. Introduction of marriage counsellor, welfare expert, shelter homes and rehabilitation programme e.g. health service worker.
4. Conviction of accused under sole testimony of victim and DNA evidence.
5. Emergency protection order containing date scheduled for first hearing of complaint within seven days of filing it.
6. Disposal of case within 90 days of first hearing and provision of camera proceedings.
7. Injunction order to prohibit accused from further committing or aiding or abetting domestic violence against victim or dependants or her relatives.
8. Residence order requiring removal of accused or his relatives from shared household or alternative separate accommodation for victim and prohibiting alienation of the same.
9. Monetary relief for loss of earnings, medical expenses, damage of property and maintenance for victim and her children even when proceeding continues.
10. Temporary custody order of children during proceedings and compensation order for mental torture to victim.
Concluding remarks
The sooner the legislative initiative is taken to enact domestic violence legislation, the better. I would like to conclude quoting Maud Buquicchio, Deputy Secretary General of Council of Europe, “When love hurts, human rights have failed and when love flourishes, human rights will triumph."
The author is a 4th year, LLB student in Dhaka University.
