How the Law fails battered wives :

No safety at home!

by Isuri Kaviratne

Thilini was exhausted. After constant emotional and physical abuse, she arrived at the police station narrowly escaping with her life. She had tolerated the abuse for years, she told the police. Even when he hit her, she thought she must have done something to anger him. Her mother always advised her to be patient. But patience has its limits.

She was exasperated, having to return home where her husband awaited her. She could feel the courage she had mustered to go to the police and then appear in front of a judge to tell her story, slowly diminishing as she was told that 'Interim Protection Orders', that would restrain her husband from entering their home, or harass her at her workplace, would not be issued.

There are many like Thilini who are battered, exhausted, exasperated and losing faith in the legal system.

The Prevention of Domestic Violence Act provides for an 'Interim Protection Order' or 'Restraining Order' to be issued 'forthwith' when a victim makes a complaint. A trend in recent months shows that courts have stopped issuing such 'Protection' or 'Restraining' orders when the victim and perpetrator are living together in a shared home.

The Interim Protection Order is required to keep the victim safe from the perpetrator, until the investigation is complete, Deanne Uyangoda, Attorney-at-Law explained. Attorny Uyangoda, on the basis of the Act, used to reassure victims when they came to her that the moment they went to court they would be given that protection. But, with the courts no longer enforcing that 'Protection' provision, she can no longer give that assurance. "The term 'Forthwith' in the Act is overlooked, as courts opt to hear both sides of the story before issuing protection orders," she said.

Women In Need (WIN) Outreach Program Manager Sumithra Fernando said, if a wife leaves her matrimonial home, the Restraining Order will come into effect, but as long as the couple share a house together, the Order is not given, anymore. The husband is only asked not to touch the wife and this was the only restraint meted out.

Women who were thus sent home without a Restraining Order have returned to WIN, complaining of the constant verbal and emotional abuse they continued to suffer, as husbands shouted at them and the children, disrupting the household. Children then complain of the lack of sleep or the lack of peace of mind and inability to do homework.

The Restraining Order, as stipulated in the 2005 Act, prohibits the accused from entering their shared residence. The Order is issued 'Forthwith', without an inquiry, and within 14 days of the complaint, and the inquiry must be taken up at a Magistrate's Court. Then, a Protection Order that is valid for a year, will be issued. If the couple wants, they can settle it at any time during this year, or extend the Protection Order, or modify it as they see fit.

Fernando elaborated that they have repeat clients, as the women are compelled to return to their husbands if they depend on them financially, and then continue to get abused. "This trend will only make women refrain from making complaints as they would think it's of no avail," she said.

"In numbers, the complaints have not lessened," Fernando said, adding that even though there aren't exact statistics recorded on domestic violence cases, the accepted estimate is that 60% of women experience violence in a domestic set up.

During the late 1980s, when WIN was set up, Fernando said complaints of domestic violence were mostly about a husband slapping the woman, pulling her hair and giving her a black eye. But the current complaints entail horrendous acts of burning, axing, and chopping off limbs of women. May be the war, she assumed, or other reasons such as morbid jealousy or mental illnesses has resulted in the severity of violence which is gradually increasing.

In many vital cases, Restraining Orders were given at a much slower pace. The Interim Protection Order specified in the Act, is not given until the case is heard several times.

Take a case in point: "A woman had to undergo reconstructive surgery and had her jaw operated as she was so severely beaten," observed Jerusha Thambiah, an attorney-at-law who deals with victims of domestic violence. She was asked to take part in mandatory counselling, while she was worrying over the delayed Protection Order.

"I'll go into hiding, rather than lodge complaints," was the response she got from one client when she explained the current legal situation.

Mandatory Couple Therapy is another practice that has picked up, of late, as the issuing of Restraining Orders declined. The Act states that the courts 'may order' a counsellor or social worker to counsel the parties. ,In recent cases, however, judges have been in favour of counselling so much so that legal practitioners now refer to it as 'Mandatory Counselling.'

Uyangoda recalled several victims who were abused and threatened by their husbands in the presence of counsellors. She said this process has led to women feeling undermined. Separated mothers, already walking on thin ice with their employers due to their domestic suffering, have to lose their daily wage to come to courts and attend Mandatory Counselling sessions. All this amounts to a continued victimizing of these women to unprecedented levels.

Legal practitioners point out that the plight of the victim is not taken into consideration in the new set up, though many reasons have led to the present situation-.

Fernando of WIN noted that there were several cases where women had lodged false complaints and restrained husbands from entering the marital home. "There is reason to believe that the courts considered these exceptional cases, when deciding not to issue Interim Protection Orders." Additionally, Thambiah explained that there is an understanding that giving restraining orders can go against the perpetrator. The issue of a Restraining Order to a couple prohibiting the man from entering the marital home while the wife opts to remain, was sometimes seen as too harsh a provision.

Understandably, the new judicial practice of non-issuance of restraining orders avoids antagonizing the perpetrator, even though it means sidestepping the violence which has already taken place.

This sidestepping could be perceived as an addition to the setbacks women face when filing complaints on violence. "Their complaints are trivialized and priority is given to other cases in every establishment they go through to gain justice," Fernando said. The problems start at police stations when recording the initial complaint, she added.

Thambiah agreed with this contention and said there was a problem with the police. When victims lodge complaints about domestic violence their complaints were often rejected and they were in most instances sent back home. "Some police officers were reluctant to even record the complaints, saying it was a family matter or that it was a personal matter,"she said.

The trivialising of issues occurs in a cultural context too, a former Supreme Court Judge analysing the context and speaking under anonymity said. "It's the abuse of power in a relationship, which under the law says both parties are equal. When discrimination begins, culture vanishes.

In the broader social context, the Domestic Violence Act addresses all domestic relationships: husband - wife, parent - child, in-laws. "We sympathise with the minority communities when we see them being oppressed, but not when a woman is abused at home," this judicial officer noted. The official added that there were men who were abused by women, but that was only a small percentage of domestic violence cases. "Nevertheless, it is a situation that needs to be monitored. We speak of women mostly in cases of domestic violence because women experience systematic oppression, cultural, emotional and physical at various levels."

"Physical violence is easily seen but we still do not socially accept it,"the former judge said. Explaining the politics behind this scenario, the former judge said that there were many personal behaviour traits and external factors that society blames for such violence. It could be financial problems such as the economy, where men expect women to bring in money, or when there is a lack of money in the household. Or it could be drunken behaviour, where men do not assault other people but only their wives. "Domestic violence entails a fine line of a power struggle, and that is often not addressed by society," the former judge said.

The picture drawn is that of a patriarchal society, where there is no redress for women, Fernando said. With stigma attached to separation from the husband society tells the woman to tolerate and get back together with the husband, even if he harasses her and hits her . Therefore, community awareness is mandatory, she said.

However, the Domestic Violence Act of 2005 disregarded cultural norms and specified that an aggrieved person or likely to be aggrieved person could seek redress under this Act. The gender neutral Act provides a civil remedy for the problems and recognized partnerships, while protecting the oppressed party in a relationship. The accuser does not have the burden of proof or to prove that they were victimized beyond reasonable doubt as long as, as the Act says, the court is 'Satisfied'.

Providing a civil remedy, the only time the accused can be arrested is if he or she violates the Restraining Order or subsequent Protection Order, as it is contempt of court. "But even though cases have been reported where husbands had trespassed into places where the wife was living with her parents, and abused her, the system was slow to react," said Fernando.

On the other hand, several lawyers explained that there were instances where the respondent refused to appear in courts, and judges continued to issue summons. Being a civil matter, a Restraining Order is the only action available as punishment for the perpetrator.

The former Supreme Court judge said that Sri Lanka needed a disciplinary body to look into the conduct of judges, and these trends in legal practices should be reviewed to avoid double victimization of the victim. Proper awareness and training programmes were mandatory to enforce Acts like this, as WIN did immediately after the Domestic Violence Act was introduced. The need to address all aspects of the Act was important, the former judge said both in the case of physical and emotional abuse.

Emotional violence addressed in the Act is only a window dressing. The Sunday Observer failed to find a single case taken up in courts where the ruling had to deal with emotional abuse that is provided for by the Domestic Violence Act. There have been around four or five cases of emotional abuse that proceeded to courts, according to WIN, but due to difficulty in proving abuses without a psychiatric report, the cases were never taken up.

"Women who have been battered and exploited with visible physical evidence, find that courts follow a slow approach for justice to be meted out. If blood and violence is not taken seriously, the women know that emotional abuse is not going to be taken seriously as well", Thambiah said.

Amidst the legal mumbo-jumbo, victims have lost faith in the legal system, she added, with no Restraining Orders and Mandatory Counselling.

In total contrast to this view couple therapist Nilu Fernandopulle, who was assigned a majority of the Domestic Violence cases in Colombo, said counselling has proved successful, as 90% of the couples who were directed for counselling ended up getting back together. "But that doesn't mean I bring every couple back together. I have seen furious men who hate their wives and vice versa and act aggressively."

A few violent incidents have occurred in-between counselling sessions.

Speaking of counselling being mandatory at least once a week and court hearing days with long intervals in-between, he said that it had given him more time to work with the couples before they appeared in courts again, and helped the couples to solve the problems. "They come up with their own solutions. I just help them realize it," he added.

When asked about this recent trend under the Act, Additional Secretary (Legal) at the Ministry of Justice, Piyumanthi Peiris, said the Prevention of the Domestic Violence Act does not come under the purview of the Ministry of Justice, but was under the Ministry of Women's Affairs.

Chairperson of the National Committee on Women, Swarna Sumanasekara said the Ministry of Women's Affairs was preparing an Action Plan to amend the Act and recommend more training for law enforcing personnel regarding gender-based violence as well as to permit a proxy to appear on behalf of the victim. According to statistics given by the police in support of the Action Plan, 389 Protection Orders were issued even though 2,147 complaints have been lodged in 2015.