The Enemy at Home: An Appraisal of Legal Recourses for Combating Domestic Violence

- Saeed Ahsan Khalid

Domesticviolence

Published On - June 11, 2015 [Vol. 2, Jan - Jun, 2015]

The history of mankind is a history of repeated injuries and usurpations on the part of man toward woman, having in direct object the establishment of an absolute tyranny over her.

-Women’s Rights Convention Manifesto, Seneca Falls, 1848[1].

Domestic Violence is the manifestation and materialization of historic unequal power relation between sexes. The incidents of domestic violence are rampant in the society where women are persecuted by intimate associates like husbands and in-laws or other family members. It is the most unrecognized form of violence against women in Bangladesh since most often it goes unreported and treated as personal. It’s a very pervasive and acute social malady in every cluster of the society whether rich or poor, literate or illiterate, developed or underdeveloped and the victims of domestic violence come across all socio-economic and cultural backgrounds irrespective of religious, linguistic, ethnic or any other orientation. Bangladesh has plethora of laws conducive to the rights of women but these existing legal recourses often fail to address the issues like domestic violence because of multi-facet legal complications and drawbacks. The incidents of domestic violence are most commonly expressed in terms of ‘family affairs’ or ‘personal matters’ and are left unreported and unaddressed by the existing laws. The saddest part of the existing legal instruments that deal with the violence against women is that women have to wait to be brutally murdered, tortured or injured certified by a registered doctor to get justice, without which complaints are not taken into cognizance.

Bangladesh has many laws aimed at protecting women against violence, yet research indicates violence persists, particularly domestic violence, rape and acid attacks, along with sexual harassment in schools, universities, the workplace and public places. A recent baseline survey on human rights situation of Bangladesh conducted by National Human Rights Commission, reveals that the domestic violence figured strongly in the ten most commonly identified problems facing women in Bangladesh where domestic violence in the form of beating by husband or family members constitutes 62.6%, physical abuse 43.3%, economic violence 14.9% and mental violence or cruelty 16.5% respectively among the most common forms of violence against women. Survey respondents clearly identified domestic violence as the most common form of violence.[2]

In recent years, the media has covered a number of incidents of intimate partner or domestic violence, which is a common occurrence in Bangladesh. The incidents highlighted involved extreme brutality with eyes being gouged out, faces disfigured and hands cut off with machetes.[3] According to Janet E. Jackson, the former deputy representative of the United Nations population Fund (UNFPA) to Bangladesh, Bangladesh ranks fourth among the world’s nations with respect to violence against women. According to him sixty-five percent of Bangladeshi males think it s justifiable to beat up their wives, 38 percent have no clear idea what constitutes physical violence and 40 percent support keeping women socially dormant.[4]

Current Legal Frameworks to Protect Women in Bangladesh: A Critical Overview

Recognizing violence against women as a violation of Human Rights is a significant turning-point in the struggle to end violence against women globally. The international law apparatus can be used as a functioning tool offering ways of enforcement of Women’s Human Rights in multiple ways.[5] There are numerous international human rights commitments ratified by Bangladesh by which it is obliged to respect, protect and fulfill in relations to violence against women particularly domestic violence against women. The Universal Declaration of Human Rights, 1948 followed by the ICESCR and ICCPR in the first instance provides the initial basis for equal rights to men and women. Next to these, the Convention on Elimination of All Forms of Discrimination against Women (CEDAW) 1979, the Declaration on the Elimination of Violence against Women (DEVAW) 1993, The Vienna Declaration and Program of Action, 1993 etc have been viewed as major international steps with pledges to universalize the concern about violence against women.

The significant rise in violence against women in Bangladesh brought about the enactment of several increasingly severe laws in an attempt to show initiative to protect the victims which include the Penal Code of 1860, the Women and Children Repression Prevention Act, 2000 (Nari O Shishu Nirjatan Daman Ain, 2000), the Acid Control Act 2000, the Acid Crime Prevention Act, 2002 and the most recent Domestic Violence (Protection and Prevention) Act, 2010.

However, despite these legal measures to stop violence against women, several sources, including the Bangladesh Government in its report to CEDAW, maintain that there is a need for improved law enforcement and implementation. Country Reports on Human Rights Practices for 2002 mentions that while the Government of Bangladesh had enacted several laws, the enforcement of these laws was weak, especially in rural areas and the Government seldom prosecuted those cases that were filed.[6]

The legal framework appears ineffective in combating patriarchal practices and dominance because of exceptions, loopholes and corruption. The problem with the Women and Children Repression Prevention Act, 2000 was that it was a very severe and harsh law providing for 11 death penalties and the judges are hesitant to issue these sentences because in some cases there are provisions for mandatory death penalties (death caused through dowry for example). As a result, many perpetrators get off Scott free, because it is either the death penalty or they have to be found not guilty. The Repression Prevention Act only recognizes domestic violence when it is related to dowry demands as per sections 11(a), (b), and (c) of the Act. But violence is not always related to dowry, it often happens for the simplest reasons, for example, the wife serves cold food on the table, or forgets to do a chore or the man takes out his other frustrations on his wife or children.[7] Unless the dowry is related no remedy is attracted under this Act for violence and as a result a very small percentage of people are convicted under this Act. Furthermore, the Women and Children Repression Prevention Act does not deal with mental and economic abuse or torture of female members of the family by the male members, husband or in-laws.

Gender inequality is deeply embedded in the structure of the patriarchal society of Bangladesh. Male dominance and female subordination are the basic tenets of our social structure. All Bangladeshi social institutions permit, even encourage, the demonstration of the unequal power relation between the sexes and try to perpetuate the interests of patriarchy.[8] Once a woman files a complaint against her husband for abuse, she has a long way to go before her life can be normal again; she loses her home, her family, her security and status in a society.[9] Most often the victim is blamed, tagged as ‘defiant’ and ostracized by the rest of the community. So it has always been a double jeopardy for a woman to complain against his husband or in-laws for any sort of abuse.

The general trend of unwillingness to address the issue of domestic violence effectively is because domestic violence is a far more deep-rooted and sensitive issue for Bangladeshi society than violence by the police or violence in public spaces, since it raises the question of the abuse of the patriarchal power structure within the family.[10] Domestic violence is unique in its nature in comparison to other crimes, in the sense that in a burglary or theft, the perpetrator is usually a stranger but in cases of domestic violence the perpetrator is a person or people the victim knows and love, who later on turn on them. The aggrieved person and the respondent are family members living together under the same shade before making the complaint and even after the dispute is resolved. It is very hard to hand over the perpetrator to the police, for various emotional and social considerations. So the cases go unreported and unaddressed leaving the lives of the victim in misery.

Domestic Violence (Protection & Prevention) Act, 2010: The Light at the End of the Tunnel

Recently Domestic Violence (Protection & Prevention) Act, 2010 has been enacted by the National Parliament of Bangladesh and it came into force in December of the same year which has met the long cherished demand of the women movement and is applauded as a yardstick in the protection of women against the domestic violence. The Domestic Violence Act has put a milestone in the history of women’s movement in the country as it a unique legislation which exclusively deals with the offence of domestic violence, a mostly unrevealed yet severe form of violence. This law is deemed to be reformative, protective or even preventive rather than punitive. This is not a very hard law and the offences are cognizable, compoundable and bailable. We have series of legislations contemplating to protect the women and children and the provisions of this Act shall be in addition to, and not in derogation of the provisions of any other law, for the time being in force. The law is a combination of both the criminal and civil in nature where all the protection orders to be made under the law of civil nature and defiance of such order will be treated as criminal offence for which punishment has been suggested in the law.[11]

The Domestic Violence Act, 2010 provides an elaborate and exhaustive definition of the term ‘domestic violence’ as ‘abuse in physical, psychological, economical and sexual nature by any person against any woman or child member of the family with whom that person has a family relationship, irrespective of the physical location where that act takes place.[12] This broad definition of domestic violence accommodated the four dimensions of domestic violence as follows:

  1. Physical abuse: that is any act or conduct which is of such a nature as to cause bodily pain, harm, or danger to life, limb, or health or impair the health or development of the victim and includes assault, criminal intimidation and criminal force;
  2. Psychological abuse: that includes but is not limited to:-
    • verbal abuse including insults, ridicule, humiliation, insults or threats of any nature;
    • Harassment; or
    • (iii)controlling behaviour, such as restrictions on mobility, communication or self-expression;
  3. Sexual abuse: that is, any conduct of a sexual nature that abuses, humiliates, degrades or otherwise violates the dignity of the victim;
  4. Economic abuse: that includes but is not limited to:-

(i) deprivation of all or any economic or financial resources or property to which the victim is entitled under any law or custom whether payable under any law or custom or an order of a court or any other competent authority;

(ii) not allow to use the articles of daily necessities to the victim;

(iii) deprivation or prohibiting the victim from applying legal rights to her stridhan or dower or alimony or any consideration for marriage or any property owned by the victim;

(iv) transferring without consent of the victim or prohibiting the victim from applying legal rights to any assets whether movable or immovable owned by her;

(v) deprivation or prohibiting the victim from applying legal rights to continued access to resources or facilities which the victim is entitled to use or enjoy by virtue of the family relationship.[13]

Sections 4, 5, 6, 7, 8 and 9 of the Domestic Violence Act, 2010 specified the duties of Police Office, Enforcement Officer, Service Provider, Shelter Home and Medical Facilities. Section 10 provides the aggrieved person the right to reside in a shared household. The Court may, after giving the parties an opportunity of being heard, satisfied that domestic violence has taken place or is likely to take place, issue a protection order in favour of the victim and issue order restraining the respondent from committing certain acts including the committing of any act of domestic violence or aiding or abetting in the commission of the same.[14] One of the distinguishing features of the Domestic Violence Act, 2010 is the power of the Court to issue ‘Residence Order’ by which the women’s right to residence is duly recognized.[15] The Court is also empowered to pass a decree of compensation after ascertaining victim’s injury or damage or loss as a result of domestic violence. It particularly includes the cost of medical treatment for such injury, temporary and permanent effect of such injury, the loss of earnings-present or prospective arising there from, the amount and value of the movable or immovable property taken or transferred or destroyed or damaged and even the reasonable expenses already incurred by or on behalf of the victim in securing protection from violence.[16] This Act also provided for the safe custody of the children of the victim.[17] The Domestic Violence Act, 2010 criminalized the breach of protection order passed by the Court by making it as punishable offence. The first contravention of the protection order is punishable with an imprisonment for six months or fine up to taka ten thousand or engaging in a service benefitting to the community for a period and for any subsequent contravention the offender will be penalized with an imprisonment up to twenty four months and fine up to taka one lac or both or engaging in a service benefitting to the community for a period.[18] The filing of a false complaint is also made punishable with a conviction up to one year or fine up to taka fifty thousand or both.[19]

The Statutory Loopholes and Social Challenges: The Way Forward

We have good number of laws for the wellbeing of women but the challenges are enormous in drawing a sharp line among the existing laws and the Domestic Violence Act and finding out operational linkages among various laws of the land to address violence against women.[20] Even though there are legal recourses available for abused women, NGO run programmes and safe houses, these are insufficient considering the large population of victims they have to cater to.[21]

Section 8 of the Domestic Violence Act provided for the shelter support to the victims. But shelter support has some philosophical limitations and do not conform with the principles of Rights Based Approach because under traditional shelter services provided by both NGOs and the Government agencies, survivors remain confined, their right to mobility and living a free life are destroyed keeping the perpetrators free, which also contradicts with the Section-3 (b) (c) of the Domestic Violence Act.[22] The traditional ‘Shelter Home’ concept is a barrier for social integration as the victim is remained confined for a certain period being segregated from the mainstream society.

The recognition of the ‘Right to Residence’ of the victim under Section 15 of the Domestic Violence Act, 2010 has made this law a unique one. But this right can only be enforced through efficient and effective intervention in creating a ‘Social Safety Net’ for the Community by the Community that includes supports like counseling and legal aid as protective measures. As far as the community intervention is concerned- the efficiency of the community based legal institutions should be enhanced and public confidence into the Local Justice System should be restored. There should be capacity building mechanisms for the stake holders to sensitize the community policing, legal practitioners, protection officers and court officials. Available services through the Victims Support Centers and the One Stop Crisis Center should be extended up to Upazilla level and the quality of services rendered by these institutions should be ensured conforming the minimum standard of care and the universal human rights standards.[23] The establishment of a distinct Domestic Violence Court can be one of the best results in the country for successful prosecutions.[24]

The marital rape by husband is still permitted under Bangladeshi law except the wife is below the age of 14. That means if a wife who is above the stipulated age suffers injuries from the coercive marital relations without her consent, there is nothing one can do. The Domestic Violence Act, 2010 is less about punishment and more about suppressing domestic violence and preventing it and the marital rape is still in the grey areas.

The One Stop Crisis Centers (OCC) were established in Bangladesh to address the legal, physical and psychological needs of women who are victims of domestic violence, burn and sexual assault. The idea behind OCC is to provide all required services for a woman victim of violence in one place. The OCC provides health care, police assistance, DNA test, social services, legal assistance, psychological counseling and shelter service etc. Two OCCs have been established in Dhaka and Rajshahi Medical College Hospitals, during the pilot phase of the project. Four new OCCs in Chittagong, Sylhet, Barisal and Khulna Medical college Hospitals were established in the 1st phase of the project. The OCC provides the following services:

  • Health Care
  • Police Assistance
  • Social Services
  • Legal Assistance
  • Psychological Counseling
  • Shelter Service
  • Medical legal examination with DNA Test

But the OCCs are suffering from limited human resources, lack of trained counselors and emergency staff, legal constraints of the police and inconsistencies in the complaint by the survivors since they often retract charges against their life partners particularly when they cannot afford legal fees or when the partner is the breadwinner and has control over the children.[25] Non-governmental organizations in Bangladesh such as the BNWLA, BLAST and the Mahila Parishad also offer additional socio-legal recourses to women survivors of violence. The services provided by these organizations should be more exposed and published through the mass awareness campaign.

Mere enacting the laws will not carve the incidents of domestic violence until we devise social programmes against this having interventions to change the stereotyped, orthodox and patriarchal attitude and beliefs that legitimate male dominance, male superiority and female subordination. This can be implemented through incorporating reforms in our education system, having incentive to promote the moral and ethical values during the tender age.

The new Domestic Violence Act of 2010 should receive as much publicity as possible so that victims are made aware of their recourses and the offenders think twice before inflicting violence over them.

 

Conclusion:

Women in Bangladesh are subject to various forms of violence because of socio-economic and class-based discriminations, coupled with gender relations, place them in subordinate positions in all aspects of life. The legal frameworks appear ineffective in combating patriarchal practices and dominance because of exceptions, loopholes and corruptions. Thus women continue to face various forms of violence, harassment and degradation.[26] Although it is globally recognized that women’s rights are human rights, violence against women remains a pervasive, yet under-acknowledged human rights violation being especially prevalent in Bangladesh.[27] That’s why a human rights perspective broadens the definition of domestic violence against women and focuses attention on discrimination and inequalities that are maintained or tolerated by the state and that increase women’s vulnerability to violence.[28] The enactment of the Domestic Violence Act, 2010 has added new dimensions and provided remedies for the occurrence of domestic violence but this statute is also not beyond the limitations or drawbacks. While applying this law we must not forget that the victim and the respondent are family members and after resolving the dispute they are supposed to live together. So this law should be exercised in the reformative approach, not punitive. Finally, a harmonized relationship of dignity between man and woman will foster the fruitful implementation of the law. The media, police, lawyers, judges, law enforcing agencies, the development actors and other stake holders can play a pivotal to stop the domestic violence.

[1] Report of The Woman’s Rights Convention, held At Seneca Falls, N.Y., July 19th And 20th, 1848.

[2] Perceptions, Attitudes and Understanding-A baseline survey on human rights in Bangladesh, Summary Report, National Human Rights Commission, Bangladesh, December 2011, at p.18

[3]The Enemy at Home, an article by Anika Hossain, the STAR, volume 11, issue 2, January 13,2012 <http://archive.thedailystar.net/magazine/2012/01/02/cover.htm> [accessed in April 10, 2014]

[4]Domestic Violence against Women in Bangladesh, an article by Umar Faruk Chowdhury Prince. <http://www.scribd.com/doc/55948371/Domestic-Violance-Against-Women-in-Bangladesh> [accessed in April 10,2014]

[5] Violence Against Women in Bangladesh, an article by Caroline Wiegand

<http://www.e-ir.info/2012/04/30/violence-against-women-in-bangladesh/> [accessed in April 11, 2014]

[6] http://www.state.gov/j/drl/rls/hrrpt/2002/18309.htm [accessed on April 11, 2014]

[7] Supra note 3

[8]The Scourge of Domestic Violence, an article by Kavita Charanji <http://archive.thedailystar.net/magazine/2006/12/04/hr.htm> [accessed in April 11, 2014]

[9] Supra Note 3

[10] Causes and consequences of violence against women, an article by Saira Rahman Khan < http://www.newagebd.com/detail.php?date=2012-04-22&nid=7928#.U0hLW1OFPMw> [accessed in April 11, 2014]

[11]Domestic Violence: Law is “Essential” but not “Sufficient”, an article by Sadrul Hasan Mazumder. http://archive.thedailystar.net/law/2010/10/03/index.htm [accessed on April 12, 2014]

[12] Section 3 of the Domestic Violence (Protection & Prevention) Act, 2010

[13] Ibid

[14] Section 14 of the Domestic Violence (Protection & Prevention) Act, 2010

[15] Section 15 of the Domestic Violence (Protection & Prevention) Act, 2010

[16] Section 16 of the Domestic Violence (Protection & Prevention) Act, 2010

[17] Section 17 of the Domestic Violence (Protection & Prevention) Act, 2010

[18] Sections 30, 31 of the Domestic Violence (Protection & Prevention) Act, 2010

[19] Section 32 of the Domestic Violence (Protection & Prevention) Act, 2010

[20]Can Domestic Violence Act Protect Rumanas? an article by Sadrul Hasan Mazumder at http://archive.thedailystar.net/law/2012/01/01/opinion.htm [accessed in April 12, 2014]

[21] Supra Note 3

[22] Supra Note 20

[23] Supra Note 11

[24] Asma Begum, Shipu Kumar Dey, Domestic Violence against Women in Bangladesh: A Critical Overview, The Chittagong University Journal of Law, Vol.XVIII (2013) at p.127

[25] The Independent (Dhaka) 8 July 2003. Audity Falguni- “One-Stop Crisis Center in Crisis” (Dialogue)

[26] Causes and Consequences of Violence against Women, an article by Saira Rahman Khan, NEW AGE, April 22, 2012 available at http://www.newagebd.com/detail.php?date=2012-04-22&nid=7928#.U0o03aKFPMw [accessed in April 12, 2014]

[27] Supra Note 24 at p.129

[28] Ibid

About The Writer

Article Author Image

Saeed Ahsan Khalid

Lecturer, Department of Law, University of Chittagong.

LL.B. (Hons.),
Specialized LL.M. in International and Comparative Law (DU)

Share:  



Welcome To "Law Journal BD"

Rafiqul Haque

“Law Journal BD” is a timely and innovative step towards the growth and development of law. The Journal is a combination of articles from experts which will broaden the scope of our legal instrument and jurisprudence. I sincerely hope the initiative will help the lawyers to be more informed & committed to struggle for justice. It would be more appropriate to consider it as a work of compilation of contributions from various jurists, practitioners and academicians. The “Law Journal BD” publishes articles on all aspects of law.

I deeply appreciate the efforts of the Editor and the whole team of “Law Journal BD”. It is a great contribution to Bangladesh judiciary. The journal publishes articles on all areas of law and I believe the articles will be very helpful to researchers, legal scholars, practitioners, law consultants and moreover to Law students. I am really thankful to both , who are contributing their valuable articles for publication and who are reading the articles for enhancing knowledge of law.


Thanks to all the readers of “Law Journal BD”.


Barrister Rafique - Ul Huq

Senior Advocate, Supreme Court of Bangladesh

Chief Advisor, “Law Journal BD”

Mahfuzur Rahman

The “Law Journal BD” is the first Online Law journal in Bangladesh which specifically publishes law articles only. You will find here different kind of research based articles on various Law topics. The primary function of the journal is to publish lengthy comprehensive treatments of articles generally written by law academicians, Judges, or legal practitioners. A significant feature is that the distinguished writers analyze judicial decisions, contemporary developments of law, legislation and current law reform.

The important features of the journal are the sections of Book Review and Biography of renowned person in legal field. The articles are published as a six months volume & then it will be found in the “Previous Publications” section. The “Law Journal BD” has the efficient team of learned advisors and experienced team of editors. All articles are subjected to a rigorous editorial process in order to strengthen substance, polish tone and ensure citation accuracy.



We thank you sincerely for reading “Law Journal BD”.


Barrister Md. Mahfuzur Rahman (Milon)

Advocate, Supreme Court of Bangladesh

Editor, “Law Journal BD”