Sindh’s dormant law

July 11, 2017

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EARLIER this year, 18-year-old Razia (not her real name) ran away from her husband’s home in Shireen Jinnah Colony, Karachi, after he smashed her head against the wall, punched her on the side of the face and attempted to choke her. Razia’s mother-in-law and father-in-law stood by and watched while their son beat her. Razia managed to extricate herself by biting her husband on the arm. She ran to her neighbour’s home and from there she called her mother.

For both Razia and her mother, who is a domestic worker in Karachi, this violent outburst was the last straw. Razia’s husband had subjected her to physical abuse and marital rape since they were married. That very day, Razia and her mother went to the local police station to file an FIR against Razia’s husband. The police refused to file an FIR unless Razia obtain a medico-legal and dental report. Razia and her mother obtained both medico-legal and dental reports confirming that Razia had sustained injuries indicating assault. However, when they returned to the police station with the reports, the police refused to file an FIR saying that it will not register one for a domestic dispute.

It is for the very purpose of providing justice to people like Razia who are victims of domestic violence and do not have access to a fair and efficient law-enforcement system that the Sindh Assembly passed the Sindh Domestic Violence Act in 2013. Unfortunately, however, the Sindh Domestic Violence Act has not been utilised since it was passed almost four years ago and due to myriad problems with its implementation, the law does not provide women like Razia the protection that it was intended to guarantee.

On the face of it, the Sindh Domestic Violence Act 2013 is based on a rich and gender-sensitive approach to domestic violence, defining it to include physical and psychological abuse. The law provides a wide range of remedies to victims of domestic violence, including the passage of protection orders to restrain the perpetrator of domestic violence from harassing the complainant, entering her residence or place of employment. However, even though it was enacted almost four years ago, to the best of the knowledge of lawyers and NGOs who lobbied for this act, no trial has been conducted under the law to date.

Due to implementation problems, the domestic violence law does not provide women the protection they need.

Despite all the good intentions behind the law, there are a number of obstacles in the way of its implementation. Firstly, while the law has a very wide scope, it lacks procedural clarity. It incorporates criminal offences already recognised in the Penal Code, establishes new criminal offences and also includes provisions for relief to the victim such as protection and residence orders.

The law allows a victim to approach a court directly with a complaint under this act, but it does not specify whether the complaint will cover all the criminal offences and reliefs provided for in the act. Due to this silence, it is unclear whether even those offences under the Penal Code are subject to the procedures set forth in the act or whether they fall under the procedures specified in the Criminal Procedure Code.

Furthermore, with respect to the new criminal offences, the law does not specify whether they are cognisable, non-compoundable or bailable, thereby creating confusion as to how these offences are to be tried. The procedural confusion in the law is likely to deter lawyers and judges from applying the law.

Secondly, even if a complaint is filed under the act, the delays in the criminal justice process due to the lethargy of the law-enforcement agencies, judges and lawyers will make it tremendously difficult for a complainant to pursue her case. Court cases are frequently adjourned for no valid reason as a result of which a trial could extend over a period of several months, even years. Understandably a victim of domestic violence, who has already experienced trauma due to her abuse, will be fatigued during the course of the trial and she and her family are very likely to lose the will to pursue the case.

Thirdly, the Sindh government delayed the notification of rules for the implementation of the act until 2016. Even though it has now framed rules that provide for the establishment of a commission to promote the implementation of law as well as the appointment of protection officers to facilitate complainants in domestic violence cases, there is currently no functioning commission and there are no working protection officers.

Lastly, in the absence of legal aid initiatives supported by the Sindh government and NGOs, it would be very difficult to bring domestic violence cases in courts. In order to activate the law, the Sindh government and NGOs should develop and fund programmes to connect domestic violence victims with lawyers so that the law is tested and applied by our courts.

The Sindh Assembly was rightly praised for passing the Sindh Domestic Violence Act; however, the Sindh government must take responsibility for the enforcement of the law. It must develop a road map for the implementation of the rules and establish a programme for legal aid services to take domestic violence cases to court. Furthermore, the Sindh Assembly should consider amending the law to bring further procedural clarity and thereby facilitate implementation.

Although Razia’s case is currently pending in court, the progress is far too slow due to the challenges discussed above — unfamiliarity of the court with the law, procedural ambiguities within it, unnecessary delays in the proceedings and the failure of the police to promptly implement the orders of the court. Unless the Sindh government takes proactive steps towards implementation, the Sindh Domestic Violence Act will be a law that exists only on paper and will be of little help to Razia and countless others like her who yearn for legal redress for the abuse they face.

The writer is a lawyer practising in Karachi.

malkani.sara@gmail.com

Published in Dawn, July 11th, 2017