The prevention of Domestic Violence Act and implementation problems

by Chulani Kodikara

Following a number of years of lobbying by women’s organisations, the government of Sri Lanka in 2005 passed the Prevention of Domestic Violence Act (PDVA). The Act fell short of the expectations of women’s organisations on a number of counts. Nevertheless it is a victory gained by the women’s movement in Sri Lanka in a long struggle to address the problem of intimate partner violence against women (IPVW) and is recognised as a key milestone in women’s engagement with the law. Prior to its enactment the only “legal’ remedy available for a survivor was to make a police complaint, which was rarely taken seriously. The police response was to treat these complaints as a private matter between family members, at best warning and discharging the perpetrator and at worst, trivialiasing the experience of survivors and re-victimising them in the process. From the perspective of women survivors, although criminal prosecution is almost never the end goal of a complaint, and the long-term deterrence value of a complaint is limited, it is a strategy which is often deployed by women to interrupt an episode of violence or prolong the violence free intervals.

Photo: Beyond Borders blog
Photo: Beyond Borders blog

The PDVA allows ‘any person’ who suffers or is likely to suffer domestic violence to seek a protection order from a Magistrate’s Court. The court is empowered to summarily issue an Interim Protection Order valid for 14 days. A Protection Order or PO, valid for 12 months can then be sought on the basis of evidence presented before the court. These orders can bar the aggressor from committing further acts of violence as well as make a number of other prohibitions. The Act defines domestic violence, firstly, as acts of physical violence, which constitute those offences already recognized under Chapter XVI of the Penal Code and secondly it recognizes emotional abuse – defined as a pattern of cruel, inhuman, degrading or humiliating conduct of a serious nature directed towards an aggrieved person. In issuing interim protection orders and protection orders, the court is required to balance the needs of the applicant and children (including their accommodation needs) and any hardship that may be caused to the aggressor. The Act focuses on ensuring the safety of the applicant by providing a civil remedy even while preserving her right to initiate separate civil or criminal action as permissible. Failure to comply with the protection order is an offence punishable with a fine not exceeding ten thousand rupees or with imprisonment of either description for a term not exceeding one year or both. In addition to the aggrieved person, the Act recognises that a police officer may apply for a PO on behalf of an aggrieved person. In the case of a child, the Act allows a parent, a formal or informal guardian, or a person authorized in writing by the National Child Protection Authority (NCPA) to apply for a PO.

The passage of these laws do not of course automatically resolve a number of serious shortcomings of the legal system in relation to women’s experiences. Despite the salutary provisions of the PDVA which allow a Magistrate’s Court to intervene in cases of IPVW, problems of implementation that normally bedevil the legal system continue to pose obstacles to obtaining POs. The obstacles to claiming rights under the law in Sri Lanka include institutional and structural factors such as bureaucratic delays and inefficiency as well as the lack of independence of law enforcement authorities including judges due to the steady erosion of the rule of law. These obstacles are further compounded in the case of women due to the overwhelming domination of the legal profession by men, lack of familiarity with rules of behaviour, lack of formal and informal connections, limited access to networks of power outside their immediate family and community and the constant threat of further violence and exploitation by men in power.

Additionally, the relative autonomy of legal decision makers, and the scope of the discretion they posses, provides ample opportunity for cultural norms to persist and even thrive in opposition to legislative mandates. Thus familial ideology continues to operate both explicitly and implicitly through the judicial process. One lawyer after another interviewed for this study expressed the view that the outcome of filing a case under the PDVA is impossible to predict and is contingent on the judge handling the case. A thread running through the narratives is the ambivalence about the PDVA among judges and police officers and the fact that not all judges involved in the judicial process see the Act in a positive light. Nor are they unanimous about the objectives of the Act. Many respondents were clear that judges bring their own personal biases to the decision making process undermining both the letter and the spirit of the law. These include fears that the act is undermining marriage and increasing the number of divorces, triviliasation and minimization of violence, and discourses about vengeful and spiteful wives who are jeorpadising family harmony and unity. Some lawyers reported of judges openly expressing concern that women use the Act to get a protection order, when they are having extra-marital affairs and they want to get rid of their husbands so they can move in with their new lovers. It is possible that judicial discourses have drawn succour from political discourses about the Act which have questioned the cultural appropriateness of the act (which I have documented elsewhere).

Thus it is my contention that there is little support for women to take on a rights defined identity as a battered wife under the PDVA. Those that do are seen by the judiciary as challenging cultural norms, breaking up the family, bringing shame on the family or spiteful and vengeful women who are trying to grab the property of their husbands or deprive them of their children. Thus, 10 years after its enactment the PDVA remains a remedy of last resort for women victims of intimate partner violence. Much more needs to be done both by government and civil society organization to raise consciousness relating to this law within society and law enforcement agencies. Chulani Kodikara is a Senior Researcher at the International Centre for Ethnic Studies