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Getting the law to work

March 30, 2019

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The writer is a lawyer. She represented the domestic violence survivor in the trial that led to the first conviction under the Sindh Domestic Violence Act.
The writer is a lawyer. She represented the domestic violence survivor in the trial that led to the first conviction under the Sindh Domestic Violence Act.

A RECENT conviction under the Sindh Domestic Violence Act of 2013 is both a cause for celebration and reflection. Celebration as it shows that justice for domestic violence victims in Pakistan is possible; reflection because it is the only conviction under a law that was passed almost six years ago.

On Feb 23, 2019, a court in Karachi sentenced a man under the Sindh Domestic Violence (Prevention and Protection) Act 2013 to six months’ imprisonment and ordered him to pay Rs45,000 in compensation to the survivor. Two years ago, the man’s (now former) wife filed a complaint under the law, after having been physically, sexually and psychologically abused by him since the beginning of their marriage. Her decision to take the case to court was triggered by an incident in which her former husband beat her so severely that she had to flee her home for safety. The accused was found guilty of “physical abuse” as well as “emotional, psychological and verbal” abuse, both offences under the Sindh Domestic Violence Act. He was also convicted for inflicting “hurt” under the Pakistan Penal Code.

Strongly affirming that domestic violence is a human rights violation, the court declared: “Undoubtedly domestic violence is being committed in Pakistan on an epidemic scale … [The law] was enacted to provide protection to the weakest class of society ie women and children as, normally we are carrying a presumption of living in a male-dominant society where aggrieved even does not dare to tell about domestic violence because of threats of being abandoned or dispossessed/removal from household.” 

A number of factors converged to make a rare conviction in a case of domestic violence possible.

The Sindh Domestic Violence Act was passed “to institutionalise measures which prevent and protect women, children and any vulnerable person from domestic violence”. It defines domestic violence to include “all acts of gender based and other physical or psychological abuse” against “women, children and other vulnerable persons” with whom the accused has been in a “domestic relationship”.

Balochistan passed a similar law in 2014 whereas Punjab enacted the Punjab Protection of Women Against Violence Act in 2016 which provides a range of remedies to women subjected to domestic violence, but unlike the Sindh legislation, does not impose criminal penalties on perpetrators of domestic violence. Domestic violence legislation in Khyber Pakhtunkhwa has not yet passed due to strong opposition from assembly members.

A number of factors converged to make this rare conviction in Sindh possible. The complainant had a strong support network as her mother and employer stood firmly by her side as she fought her case. This support was particularly crucial due to the delays in the trial. Even though the law specifies that any trial under the act must be concluded within 90 days, this trial went on for almost two years. The delays were primarily due to the adjournments sought by the counsel for the accused as well as the failure of the medico-legal department to promptly send a witness from its office to testify.

Another crucial factor leading to the conviction was strong medical evidence. Very soon after the assault that drove the survivor out of her house, she was examined by a doctor who prepared a medico-legal report. This was vital evidence, given that no witnesses to the violent act itself were willing to come forward, as is common in domestic violence incidents. The sensitivity of the judge also had a positive impact. Although this was the first domestic violence case before him, he did not allow widespread patriarchal notions that violence and abuse within the home are ‘family matters’ to influence his judgement.

Many obstacles during the course of the case, however, exemplified the difficulty of taking such cases to court. Initially, the police refused to register an FIR against the perpetrator. The survivor had to take advantage of a provision in the law that allows a complainant to file a petition directly before the magistrate, based on which the magistrate framed charges against the perpetrator.

One of the most important remedies available under the law is a protection order, which prohibits the abuser from making any contact with the petitioner. Women who escape domestic violence are often in need of urgent protection from law enforcement since they face threats of retaliation. Since the perpetrator continued to harass and threaten after the trial had commenced, the survivor had to avail this remedy. Unfortunately, the police was not responsive to the protection order, and again, it was the resilience of the survivor as well as her family and friends that enabled her to persevere and see the trial through to the end.

Some crucial provisions of the Sindh Domestic Violence Act remain unimplemented. The law provides for protection officers to be appointed who are to assist and support a survivor through the process of filing a complaint. These officers provide the vital support that a survivor needs through an extremely difficult process.

Recently, the Sindh High Court took notice of the delays in the implementation of the law. A number of petitions came before the high court judge, Justice Salahuddin Panhwar filed on behalf of women facing threats and harassment by family members who were unable to obtain any protection by law enforcement. Justice Panhwar found that while the Sindh Domestic Violence Act was passed specifically to address these issues, it was not being utilised. He noted that the Sindh government has failed to spread awareness about the law among police and the judiciary; the judge also directed the government to ensure the speedy appointment of protection committees and protection officers.

With these developments, it appears that our legal institutions have begun to meaningfully acknowledge that the state has the responsibility to provide protection and justice to survivors of domestic abuse. There is still a long way to go, however, before the law becomes an effective tool against gender-based violence.

The writer is a lawyer. She represented the domestic violence survivor in the trial that led to the first conviction under the Sindh Domestic Violence Act.

Published in Dawn, March 30th, 2019