Copyright@ Plan International

Published: November 2016

Cover Design: Farzana Siddika, Graphic Designer, PHR

Design & Printing: Execute

Funded By: USAID/

Disclaimer: This study is made possible by the support of the American people through the United States Agency for International Development (USAID). The contents are the sole responsibility of Plan International USA and do not necessarily reflect the views of USAID or the United States Government. 02 03 TABLE OF CONTENTS

Acronyms 05 Acknowledgements 07 Executive Summary 08

Chapter One: Introduction 14-19 1.1 Violence Against Women and Children in Bangladesh 1.2 Government of Bangladesh Commitments 1.3 International Agreements on Women’s Rights 1.4 NGO Programs 1.4.1. Protecting Human Rights (PHR) Program Chapter Two: Methodology 20-24 2.1. Primary Data 2.2. Secondary Data 2.3. Research Limitations Chapter Three: Context 25-29 3.1. Contextualizing DV in Bangladesh 3.2. Causes and Kinds of DV in Bangladesh 3.3. Seeking Help Chapter Four: Law 30-42 4.1. DV in Law Before and After the DVPP Act of 2010 4.2. Enforcement: Police 4.3. Enforcement: Enforcement Officers 4.4. Help for Survivors: Service Providers 4.4.1. Shelter Homes 4.4.2. Community Shelter Homes Chapter Five: Court 43-56 5.1. The DVPP Act and the Courts 5.2. Remedies and Reliefs 5.2.1. Protection Orders 5.2.1.a.Interim Protection Orders and Serving of Notice 5.2.1.b.Permanent Protection Orders 5.2.2. Residence Orders 5.2.3. Compensation Orders 5.2.4. Custody Orders 5.3. Issues in Enforcement 5.4. DV Laws in Neighboring Countries 02 03 Chapter Six: Status of the DVPP Act 57-61 6.1. NGOs Instrumental in Case Filing 6.2. Case Histories: DVPP Act in Action 6.2.1. Case Withdrawn 6.2.2. Protection Order to End Harassment Chapter Seven: Recommendations 62-75 7.1. Recommendations 7.1.1. Raise Awareness 7.1.2. Increase Community Investment 7.1.3. Improve Access to Justice 7.1.4. Provide Separate Courts to Hear DV Cases 7.1.5. Relieve Economic Insecurity 7.1.6. Provide Immediate Access to Services 7.1.7. Bolster Support Services and Social Safety Nets 7.1.8. Collect Data 7.1.9. Address DV Against Children 7.1.10. Provide Counseling 7.1.11. Refine Legal Definitions and Language 7.1.12. Clarify Offences and Sanctions 7.2. Sixteen Suggested Amendments to the DVPP Act References 76-78

Appendices 79-96 I. English Version, Domestic Violence (Prevention and Protection Act) of 2010 II. Sample Cases III. Questionnaire for Enforcement Officers, English Translation IV. Focus Group Discussions

04 05 ACRONMYS

AD - Appellate Division ADR -Alternative Dispute Resolution ASK -Ain O Salish Kendra

BBS - Bangladesh Bureau of Statistics BLD - Bangladesh Legal Decisions BLAST - Bangladesh Legal Aid and Services Trust BMBS - Bangladesh Manabadhikar Bastabayon Sangtha BMP - Bangladesh Mohila Parishad BNWLA - Bangladesh National Woman Lawyers’ Association

CIDV - Citizen’s Initiative against Domestic Violence CEDAW - Convention on the Elimination of All Forms of Discrimination Against Women CRC - Convention on the Rights of the Child CrPC - Code of Criminal Procedure

DLAC - District Legal Aid Committee DLR - Law Reports DSS - Department of Social Service DV - Domestic Violence DVPPA - Domestic Violence (Prevention and Protection) Act

EO - Enforcement Officer ELLMA - Ensure Legal Support through Local Movement & Action

FGD - Focus Group Discussion FIVDB - Friends in Village Development Bangladesh

GBV - Gender-Based Violence GD - General Diary GoB - Government of Bangladesh GO - Governmental Organization

ICRW - International Center for Research on Women INGO - International Non-Government Organization

04 05 JATI - Judicial Administrative Training Academy

MOU - Memorandum of Understanding MoWCA - Ministry of Women and Children Affairs MSSUS - Manob Sheba O Shamajik Unnayan Shangstha MJF - Manusher Jonno Foundation MJSKS - Mohideb Jubo Samaj Kallyan Sangstha

NGO - Non-Governmental Organization NHRC - National Human Rights Commission NPA-SAECT - National Plan of Action Against Sexual Abuse, Exploitation of Children including Trafficking NTCC - National Trauma Counseling Centre

OC - Officer in Charge OCC - One-Stop Crisis Centers

POWADVA - Protection of Women Against Domestic Violence Act PHR - Protecting Human Rights

RDRS - Rangpur Rural Service

SCWHR - Strengthening Community Capacity to Ensure Women Human Rights SID - Statistics and Information Department SPG - Social Protection Groups SUS - Sabalamby Unnayan Samity SW - Social worker

UN - United Nations UNCEDAW - United Nations Convention on the Elimination of All Forms of Discrimination Against Women UNDP - United Nations Development Programme UNICEF - The United Nations Children’s Fund USAID - United States Agency for International Development

VAFWSD - Voluntary Association for Family Welfare and Social Development VAW - Violence Against Women VGD - Vulnerable Group Development. VGDUP - Vulnerable Group Development for Ultra-Poor VSC - Victim Support Centers 06 07 ACKNOWLEDGEMENTS

The Protecting Human Rights Program is committed to working alongside a wide range of stakeholders in Bangladesh to help protect and support survivors of domestic violence and their families. The dedication of all those involved with PHR provides a window into the reality that survivors of domestic violence face in Bangladesh and the complexities they face as they seek to overcome the violence that has penetrated their lives. Through this program we have witnessed the resilience of women and children who continue to survive despite the many challenges they face.

We would like to acknowledge the extraordinary work of Dr. Shahnaz Huda Professor in the Department of Law at the University of Dhaka who served as the principal author of this study. She worked under the supportive guidance of our implementing partner BNWLA as well as the Plan International PHR Staff. This research would not have been possible without the input of the Dhaka based teams as well as the PHR field based staff from Plan International, the PHR legal counselors working with BNWLA and the local organizations at the district, and union levels who helped to arrange and collect information through individual interviews and focus group discussions across the country. PHR is also thankful for the collaboration of the Government of Bangladesh, including MoWCA, Union Parishad members, local officials and religious leaders. These organizations and individuals continue to have a positive impact on the lives of many people and have brought the issue of domestic violence to the forefront.

PHR appreciates the invaluable support of the United States Agency for International Development Bangladesh mission who has provided funding and advised the program since its inception in 2011. Significant contributions to making this study come to life also came from Sumana Binte Masud from USAID, Henry Alderfer, Aubrey McCutcheon, Farhana Afroz, and Mozahidul Islam from the Plan International PHR team in Bangladesh, Advocate Salma Ali, Mitali Jahan, and Towhida Khandakar from BNWLA, and Pamela Young, Eva Cantrell and Laura Brazee at the Plan International USA office. Our final product was made possible with the expert editorial assistance of Ms. Sabrina Detlef.

We hope that this research sheds light not only on the issue of domestic violence that many women and children in Bangladesh face in their home, but also the laws that have been enacted to help provide support to survivors. Our aim is to bring an end to the practice and also identify the factors which hinder the proper implementation of the law. This study is dedicated to the hope and promise for a future where all those in Bangladesh can live happy, healthy, secure lives within their own homes and in public spaces.

06 07 EXECUTIVE SUMMARY

Introduction Domestic violence is a pervasive and critical social problem that cuts across class and economic lines. The Constitution of the People’s Republic of Bangladesh guarantees the fundamental rights of all, which includes the right to be free from all discriminatory practices. It also guarantees the protection of the law, which inherently includes freedom from all types of violence. The enactment of the Domestic Violence (Prevention and Protection) Act of 2010 was the successful outcome of prolonged lobbying by different non-governmental organizations (NGOs) and entities, along with support from the Ministry of Women and Children Affairs. Initiatives to address and combat domestic violence continue, and there are innumerable programs, large and small, which support survivors. Many organizations extend social and legal support for survivors and victims of violence; a prime example is the USAID-supported Protecting Human Rights (PHR) Program, implemented by Plan International Bangladesh, which commissioned this study.

Purpose The aim of this study is to investigate how the Domestic Violence (Prevention and Protection) Act of 2010 (referred to here as DVPP Act) is being implemented and explore its successes and shortfalls. We wanted to identify how (and if) the Act prevents violence within the home and protects the victims of domestic violence, and draw conclusions and make recommendations for how Bangladesh can improve the application of the law. Finally, we identified some potential revisions of the Act, based on our research.

Methodology Five Years After Bangladesh’s Domestic Violence (Prevention and Protection) Act: Is It Helping Survivors? was undertaken by PHR in 2016 to investigate the status of implementation of the DVPP Act during its first five years, and of its related Rules, enacted in 2013. Our study includes a review of the literature on domestic violence in Bangladesh and other countries as well as a thorough analysis of the DVPP Act and the governmental and NGO policies and procedures related to its implementation. Primary data were collected through field visits conducted in three districts, , and Dinajpur, all of which fall within PHR working areas. Several tools were used for this investigation, including in-depth interviews, a questionnaire for enforcement officers, focus group discussions and group and individual meetings with stakeholders. Secondary data were collected from a wide variety of sources: government (GOB) agencies involved in implementing the DVPP Act; the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) and other related international bodies represented in Bangladesh; NGOs (such as Plan); and documentation related to cases of domestic violence in Bangladesh and how the Act is being instituted at all levels of society. Our study documents the state of implementation of the DVPP Act, especially at the District, Upazila, Union and community levels, but does not claim to fully represent domestic violence and related human rights abuses across the country. The private and family nature of domestic violence, and the societal

08 09 stigma surrounding it, coupled with a lack of validated statistical analyses of the frequency and type of domestic violence were serious limitations in determining the actual state of execution of the DVPP Act and its impact.

Context: Domestic Violence in Bangladesh The most common form of domestic violence in Bangladesh continues to be from the spouse/partner of the survivor.1 According to a Bangladesh Bureau of Statistics survey conducted in 2015 more than 80.2% of married women have suffered some form of violence at the hands of their spouses whether it is physical, sexual, economic or emotional abuse. Domestic violence occurs for many reasons, most often connected to dowry demands, often perpetrated by the wife’s mother-in-law and executed by her husband. Violence may also take place for reasons such as poverty, defiance, extra-marital relationships or individual whim. Prior to the enactment of the DVPP Act in 2010 and its Rules in 2013, the laws of Bangladesh did not sufficiently address legal filing and prosecution for acts of domestic violence. For example, the Nari O Shishu Nirjatan Daman Ain or the Women and Child Repression Prevention Act of 2000 (amd-2003) addresses many offenses against women and children including rape, acid violence and kidnapping, but only extends jurisdiction over domestic violence if it is connected to dowry demands but not otherwise. The enactment of the DVPP Act legally recognizes violence within the home as an offence and a violation of human rights. This Act defines domestic violence as: “any physical, psychological or sexual violence or economic harm committed against any woman or child member by any person who has a family relationship with them.” The Act defines what constitutes the above types of violence, and describes the judicial response to physical, psychological, sexual and economic abuse, irrespective of the motive behind such violence. The DVPP Act creates the position of enforcement officer (EO), who is responsible for aiding in the day- to-day implementation of the Act. The EO is most often an Upazila Women Affairs Officer (UWAO), who works under the umbrella of the Ministry of Women and Children Affairs, Department of Women Affairs. We interviewed a number of UWAOs regarding their perception of the Act’s success. Feedback reflected that a UWAO should be assigned to one Upazila only (which is not presently the case), receive more training in terms of his or her role and responsibilities in implementing the Act, and obtain greater logistical support to carry out his or her job. UWAOs said that most cases referred to them could be resolved at the local level through the Alternate Dispute Resolution (ADR) mechanism. One major recommendation made by UWAOs and judges at different jurisdictional levels is that the family courts may be more suitable to deal with cases under the DVPP Act than the magistrate courts. Management of cases by the family court would reduce case review and settlement time and more appropriately involve family members in the adjudication process. However, other disagree on the ground that considerations of personal religious laws may curtail the remedies available to survivors.

Status of the DVPP Act Our research shows that the majority of cases filed under the DVPP Act were brought to court with the assistance of different NGOs, while very few cases were filed privately. It appears that, on their own, lawyers are not interested in pursuing cases under the DVPP Act, since pursuing such cases is not

1 Also called marital violence, spousal violence or wife battery. 08 09 lucrative. To illustrate this point: only 102 cases were filed during the first three years of implementation of the Act. Since 2013, however, the number of filed cases has begun to increase, thanks mainly to efforts by NGO projects, such as PHR, which have intensive and extensive domestic violence prevention and protection activities at the Union level. The table below depicts the difference in the number of cases filed between areas of intensive NGO project activities related to DV and the number of cases filed in other areas without much attention to DV. Not only is the number of cases filed 300 percent more in the case of PHR program areas, but the geographical area covered by PHR is approximately seven times smaller than the areas adjacent to this area.

Implementation of the DVPP Act in PHR Program Areas: January 2011–May 2015

No. of cases under DVPP Act No. of Cases under DVPP Act in Other District Where PHR is Operating Areas

Bogra 50 (3 Upazila ) 10 (9 Upazila) 35 (1 Upazila ) 25 (7 Upazila) Chittagong 10 (1 Upazila ) 13 (13 Upazila and Chittagong Metro) 51 (1 Upazila ) 0 (11 Upazila) Borguna 4 (1 Upazila ) 0 ( 5 Upazila) Dinajpur 21 (1 Upazila ) 0 (12 Upazila) Total cases filed 171 (8 ) 48 (57 Upazilas)

Source: PHR, Upazila Women Affairs Officer, Judicial Magistrate Court One major conclusion of our study is that accessibility of assistance is a very important factor when it comes to survivors deciding to take action against incidents of domestic violence. Data collected from different sources show that the majority of the DV cases were filed by a wife against her husband, and in many cases included in-laws; the violence is physical in nature, accompanied by verbal abuse; the wife and child(ren) were often driven out of the family home; and dowry demands were a major root cause of the violence.

Conclusions and Recommendations The enactment of the DVPP Act of 2010 confers legal recognition of the fact that violence within the home is an offence and a violation of human rights for the first time in Bangladesh’s history. The Act essentially performs a normative function, in which it indicates what behavior is unacceptable, and has backed this up with state sanctions.2 Even as multi-disciplinary approaches have been envisaged to deal with such violence, the unpalatable truth is that violence (especially against women and children) within the home continues. Stakeholders, survivors of domestic violence and others told us that the DVPP Act is plagued by widespread non- implementation and to date, has produced disappointing results. The exception is found in areas in which NGOs, such as Plan International and BNWLA, have concentrated program efforts to ensure implementation of the Act. It is imperative that the GoB, principally through the Ministry of Women and

2 Lawyers Collective Women’s Rights Initiative, (2013), 7. 10 11 Children Affairs, invest far greater financial and human resources in executing the DVPP Act to improve both prevention of and prosecution for cases of domestic violence.

We have identified the ten most significant issues impeding the success of the DVPP Act: 1. Lack of national awareness: We found widespread ignorance and lack of awareness among all stakeholder groups with regard to the DVPP Act and other legislation which protects an individual’s basic human rights. Extensive and in-depth training of all stakeholders should be conducted by GoB and NGO service providers nationwide. Mass awareness campaigns should be undertaken and training expanded to enforcement officers who implement laws which address gender-based violence. Particular emphasis should be given to building the capacity of police, primary government enforcement entities (e.g., Ministry of Women and Children Affairs and the Ministry of Law, Justice and Parliamentary Affairs) and service providers to provide counseling, medical facilities, shelter and livelihood opportunities to survivors. 2. Dearth of community investment: Patriarchal socialization processes turns a blind eye to practices that are unfriendly to women such as child marriage, dowry demands and domestic violence. Tolerance of violence within the home, acceptance of it as a private matter and the refusal of outside intervention are societal norms. For change in attitudes and norms to take hold, massive community-based awareness and sensitization campaigns need to be exponentially expanded, and simple and catchy slogans developed for those campaigns. Secondly, stakeholders—women and children, leaders of local government (Union Parishads and Upazila Women Affairs Officers), social protection groups and violence against women committees, religious and other community leaders, NGO service providers, legal aid organizations—require intensive education on an individual’s rights and responsibilities under the DVPP Act and other protective rights legislation. 3. Limited access to legal services: Especially in rural Bangladesh, women and children lack access to legal assistance after acts of domestic violence, incest, mental torment, torture, abuse of dower and the like. Legal services are rarely available at the community level and women are discouraged from seeking legal assistance, since traditionally these acts have been considered “family affairs.” At the local level, ADR sessions are conducted in different ways and by different agencies. For instance, by Arbitration Councils under the MFLO 1961; by members of the Union Parishads at Village Courts under the Village Courts Act of 2006; through NGOs facilitating mediation as well as by village elders and other influential persons at informal Shalish. A considerable number of the total ADR-adjudicated cases, in one way or other, relate to domestic violence and other similar abuses. We recommend that all such institutions and their members be gender and child rights sensitized as well as trained on how to conduct such sessions.

4. Poverty and economic insecurity: Poverty contributes significantly to the prevalence of domestic violence in Bangladesh. Simply stated, the majority of women in Bangladesh cannot afford to leave an environment in which domestic violence exist. The cycle of deprivation starts from birth, since the girl child is commonly seen by society as a piece of property to be married off at a cost to her natal family, a process that continues through the “dowry” system. At marriage, women often fail to demand their share of paternal property in order to have the option of returning to their natal family in cases of marital separation or divorce. The result is that women fear separation and divorce, and often live with spousal physical and psychological violence, for 10 11 fear of dispossession of their children and economic destitution. All these factors put limits on women’s interest in filing cases under the DVPP Act. We found that if a woman attempted to access the formal court system, her husband often immediately seeks divorce, which is quite easy for him to obtain. Upon divorce, she is entitled to her dower and a small maintenance allowance for the three months of the iddat3 period. If she is not employed and cannot return to her natal home, which is often the case, she quickly ends up impoverished. Furthermore, there is no concept of community property4 in Bangladesh, so property acquired during a marriage goes to the man. In the event of divorce, she ends up destitute. All of these factors lend themselves to women (and their children) remaining within abusive marriages.

5. Inadequate support services and social safety nets: There is a paucity of psycho-social counseling, shelter, medical services and livelihood opportunities, among other services, for survivors of domestic violence. A systemic and societal circle of deprivation discourages her from securing legal assistance to prosecute the perpetrator(s) and perpetuates, ipso facto, the individual as a “victim” with little recourse to improving her life.

6. Absence of accurate DV data: It is essential for GoB to understand how to better implement the DVPP Act and its amendments, and to rethink its commitment to the financial and logistical support necessary to combat such violence. However, real time, disaggregated and validated data on domestic violence is absent at all levels of government. For example, neither the courts nor the National Legal Aid Services Organization, the Women’s Directorate under MoWCA, nor any other authority could provide useful, official data about the total number of cases of domestic violence in Bangladesh or the number of cases filed under the Act countrywide. Given this situation, we recommend that the GoB, through the Ministry of Law, Justice and Parliamentary Affairs, and in coordination with MOWCA—the enforcement entities responsible for DVPP Act implementation—design, develop and deploy an electronic documentation system of DV and other GBV cases and related information.

7. Inadequate provision for DV against children: Children in Bangladesh are generally considered to be without agency. The rights of the child, separate from its parents, is an alien concept for the majority of the population. Physical abuse, including corporal punishment of children, is considered to be a “private” issue, which is deemed acceptable when committed by family members. Corporal punishment was considered (and still is in many cases) a legitimate means of disciplining students in educational institutions, such as schools and madrasas. In January of 2011, Bangladesh’s High Court declared all types of corporal punishment in schools “illegal and unconstitutional.”

The DVPP Act refers to the child primarily in the context of the woman and not as a separate individual. In certain sections of the Act, the remedy available to the child is in reference only to his mother. The Act allows any person under the age of 18 to apply for legal relief. However,

3 Under Islamic law, iddat is a period of waiting for a woman, after the death of or divorce from her husband, during which time she cannot remarry. The main purpose is to determine the paternity of any child which may be in utero. 4 Community property means that property and good acquired during a marriage belong to both husband and wife and is divided when the marriage ends in divorce, death, etc. 12 13 it is impractical to expect a child or anyone on her/his behalf to go to court in the context of Bangladeshi society, even though violence against children within a family is, unfortunately, very common. Abusive cultural practices, such as forced child marriage, also impact children.

Sexual abuse within the home and the family remains a difficult and sensitive subject, which is insufficiently addressed by the DVPP Act. The Act provides no strategy as to how child abuse within the family can be identified by the State.

8. No provision for counseling: Our study found that at all phases of resolving DV cases there are attempts to mediate or affect a compromise or settlement between the parties, which is normally the avenue a survivor would prefer for practical considerations. However, the DVPP Act (and related legislation) poorly addresses the need for psycho-social counseling, apart from requiring the enforcement officer to maintain a list of all psycho-social counseling services. Legal and paralegal counselors under the PHR project, as well as enforcement officers, magistrates, Union Parishad members and others provide informal counseling, but only a handful of these individuals (e.g., PHR lawyers and paralegals and trained personnel of several other NGOs working at the local level) have training as psycho-social counselors. The GoB has set up, under MoWCA, a National Trauma Counseling Center under the Multi-Sectoral Programme on Violence Against Women, but the center has limited outreach beyond the capital, except for its helpline. This helpline provides support for all types of violence against women and children.

9. Limited legal terminology: We found that in many cases the courts have to refrain from dealing with an allegation of domestic violence because the aggrieved person has been divorced and is no longer considered part of the family. To date, the law in Bangladesh has failed to take into consideration the need to modify its definition of an “aggrieved” person. Magistrates dealing with cases of domestic violence are now required to consider the case of “live-in” relationships, where there is an absence of any documentary evidence proving a marriage. In such a case, the presumption of the court should be in favor of the existence of marriage, and, therefore, the complainant should be entitled to certain remedies under the DVPP Act. These roadblocks to enforcement of the DVPP Act can be overcome by minor definitional clarifications.

10. Confusion regarding offenses and punishments: Implementation of the DVPP Act has many limitations, not only in lack of clarity over definitions as explained above, but also in terms of punishment of acts of domestic violence, since the courts, under the Act, can only give orders of minimal protection, residence and compensation, and a husband can avoid such orders by easily divorcing his wife.

We recommend amending the DVPP Act and its Rules to improve implementation. Clarifying the law, and spreading the word about it, should help the Act eventually achieve its goal, that of helping to prevent and protect against domestic violence in Bangladesh.

12 13 14 15 Chapter One

14 15 Introduction

1.1 Violence Against Women and Children in Bangladesh For a majority of women and children in Bangladesh, violence is inescapable and omnipresent, part and parcel of everyday life. The Bangladesh Bureau of Statistics (BBS) had reported that in 2011, 87 percent of married women had experienced physical violence at the hands of their husbands ;almost as many (80 percent) experienced psychological violence and more than one-third of women experienced sexual violence. 5 In their latest ‘Report on Violence against Women (VAW) Survey 2015’ BBS reports that the abuse rate has decreased somewhat from 87.1% to 80.2% in the last four or so years.6 According to the BBS certain common types of violence such as sexual, emotional, economic and controllable behavior marked a slight fall in 2015 compared to 2011; however physical violence increased to 49.6% from 47.8%.7 BRAC has reported an alarming rise in incidents of violence against women during the period of 2014 to 2015.8 Patriarchal beliefs and social practices contribute to this violence. According to the Protecting Human Rights (PHR) Project’s Baseline Survey conducted in 2011,9 34 percent of women believe that a husband has the right to beat his wife under certain circumstances. Those who justify violence because “she disobeys the husband” are in the majority (74 percent). This reason was far more common than not fulfilling her gender-determined “household work” (45 percent), “if a wife is unfaithful” (36 percent) or if “she refuses sex with her husband” (36 percent).10 Despite the enactment of various laws to curb it, Bangladeshi women and children are subjected to violence in both the public and private spheres of their lives. The 1993 UN Declaration on the Elimination of Violence against Women defines violence against women as any act of gender-based violence that results in, or is likely to result in, physical, sexual or psychological harm or suffering to women, including threats of such acts, coercion or arbitrary deprivation of liberty, whether occurring in public or in private life. 11 Public violence against women and children classically includes rape, trafficking, abduction, acid attacks, fatwa violence and so forth, while private violence includes spousal violence, wife battery, child abuse, incest, dowry related violence, marital rape, torture by family members including by in-laws, mistreatment of elderly family members and in some cases honor crimes.

5 BBS, (2013). 6 http://bdnews24.com/bangladesh/2016/10/02/80-percent-bangladeshi-married-women-abused-by-husbands-bbs-study-finds 7 http://www.thefinancialexpress-bd.com/2016/10/03/47980/80.2pc-women-face-violence,-BBS-survey-reveals 8 http://en.prothom-alo.com/bangladesh/news/99799/Violence-against-women-sees-74%25-increase-in-2015 9 PHR conducted baseline, 2011.. 10 The least important reason given for violence is when the wife asks “her husband about his girlfriends.” 11 Article 2: Violence against women shall be understood to encompass, but not be limited to, the following: Physical, sexual and psychological violence occurring in the family, including battering, sexual abuse of female children in the household, dowry-related violence, marital rape, female genital mutilation and other traditional practices harmful to women, non-spousal violence and violence related to exploitation.

16 1.2 Government of Bangladesh Commitments The Constitution of the People’s Republic of Bangladesh guarantees the fundamental rights of all, which include the right to be free of all discriminatory practices and the protection of law, which inherently includes all types of violence. The Constitution reiterates equality before law and equal protection of law (Article 27), while allowing the state to take affirmative action for the protection of women and children (Article 28(4)). No one shall be deprived of life or personal liberty except in accordance with the law (Article 32) and all have the immutable right to protection under the law (Article 31): To enjoy the protection of the law and to be treated in accordance with law, and only in accordance with law, is the inalienable right of every citizen, wherever he may be . . . and in particular no action detrimental to the life, liberty, body, reputation or property of any person shall be taken except in accordance with law.

Other protections have been afforded by the executive, legislative and judicial branches of the government of Bangladesh (GOB). For example, the National Women’s Development Policy 2011 clearly outlines the aim of dealing with violence committed against women within the family and society. The National Children Policy pledges that initiatives shall be undertaken to ensure a safe family environment and that children shall be given due protection from all forms of violence.12 The government has outlined a National Action Plan to Prevent Violence Against Women and Children, 2013–2025. However, although Bangladesh has successfully attained many of the Millennium Development Goals, it continues to be a country where 47 percent of adolescent girls have experienced physical and/or sexual violence and where one in every five girls between the ages of 15 to 19 is sexually abused by her husband or partner.13 The BBS survey on VAW of 2015 reports that 34.2% of girls aged 10-14 years and 39.7% of girls aged 15-19 years have been raped at least once.14 Given the appalling figures, the issue of violence against women and children as an acute problem has been acknowledged in many different ways. For example, the Legal Aid Services Act of 200015 provides for legal assistance for women who are survivors16 of such violence. In addition to various legislative and policy interventions to address violence against women and children, concrete initiatives have been undertaken. The Ministry of Women and Children Affairs (MoWCA) has started the Multi-Sectoral Programme on Violence Against Women, which includes the establishment of the National Trauma Counseling Centre (NTCC) to provide psychological counseling.17 Eight One- Stop Crisis Centers (OCCs) were established in 2001 in Dhaka, Sylhet, Chittagong, , Rangpur, Faridpur, and to provide medical facilities, police assistance, legal support, psycho-social counseling and shelter services to women and child survivors of violence.18 By 2011, One-Stop Crisis Cells (OCC) have been established to “extend the support for women and children victims of violence

12 Including physical, mental and sexual violence. GoB, (2011). 13 The Daily Star, Sept. 6, 2014. 14 http://www.dhakatribune.com/bangladesh/2016/10/02/survey-70-married-women-face-marital-violence/ 15 Aingoto Shohaiota Prodan Ain, Act No. 6 of 2000. 16 In this study, we prefer the term survivor to the term victim. See Gupta, Rahila (2014). “Victim” vs. “Survivor”: Feminism and language; 16 June 2014, https://www.opendemocracy.net/5050. 17 The NTCC is located at the Department of Women Affairs Building, Dhaka and services provided only accessible therein. 18 GOB, (2013). 17 around the country” in 40 District Sadar Hospitals and 20 Upazila Health Complexes.19 A National Helpline Centre for Violence against Women and Children, which provides services, information and assistance has also been established under the above Multi-Sectoral Programme and provides a number that can be accessed by VAW victims and others.

1.3 International Agreements on Women’s Rights In the international arena, Bangladesh is party to several important conventions that deal with the rights of women and children. Chief among these are the 1979 Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) and the 1989 Convention on the Rights of the Child (CRC). These are both specialized treaties dealing solely, in the first case, with women, and in the second, children, although in several ways they complement each other. The first Article of the CEDAW defines what constitutes “discrimination against women” and states that it includes any distinction, exclusion or restriction made on the basis of sex whereby women are deprived of their “human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field.” CEDAW’s General Recommendation 25 and CRC’s General Comment 13 expand upon what constitutes violence, as well as the steps required to be taken by State Parties.20 Women’s rights to equality and non-discrimination, as envisaged by the CEDAW, include their inherent right to be free of and protected from violence. Gender-based violence is a form of discrimination since such violence is “directed against a woman because she is a woman or that affects women disproportionately.” This violence includes acts that inflict physical, mental or sexual harm or suffering, threats of such acts, coercion and other deprivations of liberty. Gender-based violence may breach specific provisions of the Convention, regardless of whether those provisions expressly mention violence.21 CRC also requires State Parties to “take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental treatment, maltreatment or exploitation, including sexual abuse, while in the care of parent(s), legal guardian(s) or any other person who has the care of the child” (Article 19). Bangladesh is responsible for reporting on the progress of its convention implementation to the UN committee every four (CEDAW) and five (CRC) years.22

1.4 Non-Governmental Programs The enactment of Paribarik Shahingshata (Pratirodh O Shurokkha) Ain, 201023 was the result of a decade of lobbying by Citizen’s Initiative against Domestic Violence Coalition (CIDV). In 2007, CIDV brought together thirty national and international organizations working on the issue of domestic violence; the result of CIDV’s vigorous campaigning was the enactment of the DVPP Act.24 Initiatives to address and combat domestic violence continue and there are innumerable programs, large and small, which support survivors and continue to fight for the eradication of domestic violence.

19 See leaflet on One-Stop Crisis Cell (OCC); Multi-Sectoral Programme on Violence Against Women, MoWCA. 20 General comment No. 13 (2011), CRC/C/GC/13; 18 April 2011. 21 CEDAW Committee (2004). General Recommendation 25, UN Doc A/59/38, annex I [4]. 22 as per CRC (Article 44 ) and CEDAW convention (Article 18). 23 Formally designated by its Bangla name, Act No. 58 of 2010 is referred to in this study as the Domestic Violence (Prevention and Protection) Act, or the DVPP Act. 24 For more on the background of the enactment of the Domestic Violence (Prevention and Protection) Act of 2010 see BNWLA, (2013). 18 Among the approximately 2,350 registered NGOs25 in Bangladesh, a number address issues related to women and children. Many have been working on the issue of domestic violence, some providing legal assistance directly to survivors of such violence. For example, Ain O Shalish Kendra provides legal and social support and also runs a secure home for children and women while they wait for services.26 Bangladesh Legal Aid and Services Trust’s (BLAST) core activities focus on legal aid (advice, referral, mediation, litigation and community awareness) for the marginalized, including survivors of domestic violence.27 Similarly, Bangladesh Mahila Parishad (BMP) extends social and legal support to survivors of violence and has helped them access the courts.28 Bangladesh Manabadhikar Bastabayon Sangstha, through its Strengthening Community Capacity to Ensure Women’s Human Rights (SCWHR) project, extends legal support to survivors. Manusher Jonno Foundation (MJF)’s Violence Against Women program is working with 21 partners and 12 sub partners in various areas of 46 .29 Both centrally and through their District, Upazila and union offices and branches, these organizations provide legal and other aid to women who have been subjected to various forms of violence.

1.4.1. Protecting Human Rights (PHR) Program Plan International Bangladesh, in partnership with Bangladesh Women’s Lawyers Association (BNWLA) and 11 local NGOs, implemented the six-year (2011–2017) Protecting Human Rights (PHR) Program. The goal of the program is to reduce the prevalence of domestic violence and other related human rights violations in Bangladesh. Implemented with the financial assistance of USAID, PHR works in 102 Unions under nine Upazilas of six Districts: Barguna, Jessore, Bogra, Dinajpur, Sylhet and Chittagong. Social Protection Groups (SPGs) have been formed in the Unions and legal counselors are situated in all 102 Legal Service Centers operating with the support of Union Parishads. These 102 SPGs operate as social accountability mechanisms. The SPG brief is to prevent gender- based violence in all its forms at the community level; these groups bring “together government, private sector, and civil society: political leaders (the president of the Union Parishad, and various other UP functionaries—elected officials akin to the mayor and the city council), social workers, the marriage registrars, the village doctors, local elites, and student representatives under the age of 18.”30 The PHR Program gives training courses to familiarize stakeholders with VAW. These trainings ensure that the SPGs understand the issues, the laws, the consequences of violating such laws, where to reach out for support and how to make themselves effective community agents.31 PHR contributes to the implementation of the DVPP Act by deploying a range of activities designed to encourage legal reform, enhance local capacities, provide direct legal help and other services, and change attitudes and behavior patterns. It provides integrated services to survivors of domestic violence and aims to help change perceptions and practices of citizens and relevant government officials with regard to domestic violence and related human rights abuses.32

25 Hamilton, Daisy, (2015). 26 ASK, “About Us.” 27 BLAST, home page. 28 Bangladesh Mahila Parishad, “About BMP.” 29 Manusher Jonno Foundation, home page. 30 Martin, Tessie San, (2015). 31 Portions taken from Afroz, Farhan et al., PLAN USAID, (2014). 32 Barr, Ashley, Hassan, Zakia, & Islam, Saiful, (2014). 19 20 21 Chapter Two

20 21 Methodology

In order to investigate the effectiveness of the Domestic Violence (Prevention and Protection) Act of 2010, both primary and secondary data were collected. Our aim was to unearth how the Act was being implemented, the gaps in such implementation and whether and how the Act prevents domestic violence and affords protection for survivors. Based on our research, we identified possible modifications of the law.

2.1. Primary Data Primary data were collected through field visits conducted in several areas of the country within the work area of the PHR Program. We conducted field investigations in relevant Upazilas and Unions in three of the eight Districts of Bangladesh.

Table: Field Study Area District Upazila Chittagong Patiya Upazila Bogra Sariakandi and Shibganj Upazilas Dinajpur and

Several tools were used for this investigation:

(a) Focus Group Discussions: Focus groups (eight to nine respondents) allow the researcher to discover the answers to a great many questions quickly and assist in identifying many practical and pragmatic problems survivors face in accessing justice, which lawmakers may not have addressed sufficiently. Focus group discussions can be the best way to obtain opinions from different groups, especially in the face of illiteracy, poverty, gender role limitations and other inhibiting factors. Several Focus Group Discussions (FGD) as well as mini FGDs (four to five respondents) were conducted with relevant stakeholders.

(b) Questionnaires: Questionnaires were given to 49 designated EOs of the DVPP Act. The officers were accessed at their own offices in different Upazilas as well as at the Women’s Directorate of MoWCA, where they were present for training purposes. The 15-question forms (see Appendix III) were self-administered.

(c) Key Informant Interviews: Interviewees were directly or indirectly involved with issues related to the protection of women. These detailed dialogues were invaluable for the deeper understanding of the status of domestic violence in Bangladesh. Interviews with individuals who have experience with survivors of violence at the grassroots level (i.e., at the Upazila, Union or village levels) provided a clearer picture of the successes and failures of the law. Providers of legal aid and other services to survivors and victims were also interviewed. Other interviewees included lawyers, activists, judges of both higher and lower courts, especially judicial magistrates dealing with cases of domestic violence under the Act of 2010, and eminent human rights activists. See table below. 22 Table: PHR Interviews

Individuals Organizations Meetings

Magistrates Survivors of DV BLAST organized an event on December 2015, called “Developing NGO personnel, including panel Sectoral Responses to Domestic lawyers involved with cases under the Protecting Human Rights (PHR) Violence,” which provided an overview DVPP Act Program of the successes and the limitations of Academics, activists and others the law BNWLA working on the issue of DV Various FGDs and mini FGDs (see GOB actors involved in the Multi- Bangladesh Legal Aid and Appendix IV) Sectoral Programme on VAW, Services Trust (BLAST) Experience Sharing Programs with including Project Director magistrates and judges (March 2014– Ain O Shalish Kendro (ASK) Officials of the Directorate of Women Feb. 2016) conducted in Dhaka and Affairs, MoWCA including Director Bangaldesh Manobadhikar other districts including Rangpur, General Bastobayon Sangstha Barguna, Bogra and Jessore Judges of the Supreme Court of “Expanding the Scope for Obtaining Bangladesh Bangladesh Mahila Parishad Justice in the Prevention on Violence District Legal Aid Office Against Women,” Nov. 28, 2015, arranged by Naripakkha and Bangladesh Police personnel Manobadhikar Bastabayon Sangtha Enforcement Officers

(d) Interviews with DV Survivors and Law Enforcement Personnel: In order to evaluate the status of the Act’s implementation, we consulted actors on the ground, including survivors, enforcement officers and magistrates. We interviewed District legal aid officers of Chittagong and Dinajpur and the Deputy Director of Nari Nirjatan Protirodh Cell at the Women’s Directorate, under MoWCA. We reviewed the services provided by shelter homes and other service providers.

2.2. Secondary Data Secondary data collected and collated from the literature related to VAW and children show that there is a fair amount of work on domestic violence. Our review of available legislation, rules and relevant policy documents shows concern on the part of the state regarding escalating violence against women and children. We looked at the latest reports submitted by GOB to the CEDAW treaty reporting body and shadow reports submitted by non-state actors regarding domestic violence. We also looked at annual reports of several NGOs, as well as documentation related to court cases. We used secondary data from all the areas covered by the PHR project (i.e., nine Upazilas and 102 Union Parishads of six Districts). Since the DVPP Act is comparatively new, there has been a limited amount of work on the law and its implementation; any work that has been done has been consulted and referred to extensively in this study. Finally, we examined domestic violence related laws of different countries in Asia for the purpose of comparison and to discover best practices (see last section of Chapter 5).

23 2.3. Research Limitations In spite of the extensive field work conducted for this study, it cannot be a complete representation of the situation regarding domestic violence across Bangladesh for several reasons. First, the very nature of the subject matter makes it difficult to access victims and survivors. Ethical considerations regarding the safety and privacy of the respondents have made research challenging. A lack of consistent information regarding the number of cases filed under the DVPP Act of 2010 as well as the absence of authoritative data on domestic violence related incidents reported to law enforcement also hampered the study. The dearth of dependable and formal data on the situation pertaining to domestic violence before and after the enactment of the Domestic Violence Act was keenly felt.

24 25 Chapter Three

24 25 Context

3.1. Domestic Violence in Bangladesh Although domestic violence has always been a reality within the Bangladeshi paternalistic family unit, until very recently it remained a taboo subject.33 Social and patriarchal structures and religious worldviews have traditionally considered such violence strictly within the “private” sphere of life, over which the state has little control. This is especially true in the context of Bangladesh and other South Asian countries. Contributing factors to the high incidence of domestic violence include extreme poverty, low rates of literacy, women and girls confined to performing household chores, and the subservient role of women to men in general and, specifically to spouses or partners. As in other countries, such beliefs have been challenged in Bangladesh by civil society, activists and academics. Both the CEDAW and the CRC Committees have expressed concern about continual violence against women and children in Bangladesh.

3.2. Causes and Kinds of DV The most common form of domestic violence continues to be intimate partner violence, also referred to as marital violence or spousal violence. However, the 2011 BBS34 data indicated that non-partner violence is also common in Bangladesh: 33 percent of women had experienced violence by a non- partner in the last 12 months. Perpetrators include partners’ step parents, parents-in-law and other family members, including sisters- and brothers-in-law. Domestic violence is, in most cases, gender-based and it is usually the woman who is the victim. Violence against men occurs only rarely. Domestic violence occurs in Bangladesh for many reasons. One of the major causes of violence against women is connected to dowry demands. The practice of demanding money from a bride’s family is rampant, although prohibited by law since 1980.35 Violence as a result of the inability of a woman’s family to pay dowry that was promised before marriage or demands made after marriage is widespread and at times fatal.36 Other reasons for DV include complaints from other members of the family or in- laws; “talking back” to a husband; the taking of a second wife;37 the withholding of permission for a husband’s polygamous marriage (a requirement under the law for Muslims); the serving of bad or cold food; behavior considered unacceptable such as talking to strangers or wearing revealing clothes; and the inability to bear children or sons, among others. Or there may be no particular reason at all. Domestic violence is an acute social malady in every strata of society: rich or poor, literate or illiterate, developed or underdeveloped. Survivors come from all socio-economic and cultural backgrounds,

33 Huda, Shahnaz, (2015). 34 BBS, (2013). 35 The Dowry Prohibition Act of 1980 (Act No. XXXV) makes the giving and/or taking of dowry by itself a punishable offence without violence being committed. 36 For more on dowry see Huda, Shahnaz, (2006). 37 Siddique, Kaniz, (2011), 33. 26 irrespective of religious, linguistic, ethnic or other orientation.38 There is no statistically significant difference between women in urban and rural areas in this respect.39 Studies have shown that such violence is usually physical but may include other types of abuse or a combination of different types of violent behavior. Women in Bangladesh may thus experience physical abuse (slapping, beating, arm twisting, stabbing, strangling, burning, choking, kicking, murder), psychological abuse (threats of abandonment, verbal aggression and humiliation, threats of killing), sexual abuse (coerced sex through threats, intimidation, forced and unwanted sexual acts), and economic abuse (denial of funds, refusal to contribute financially, denial of food and basic needs, controlling access to health care and employment).40 According to the PHR Baseline Survey, 34% of women believed that a husband has the right to beat his wife, under certain specific circumstances. Those who justify violence because of ‘she disobeys the husband’ is the highest than any of the reasons, i.e the most important reason justifying wife beating is if she ‘disobeys her husband’ (74%). This reason was far more common than the reasons of not fulfilling her gender role of ‘household work (45%) ‘if a wife is unfaithful’ (36%) or if ‘she refuses sex with her husband (36%). Recent participants in a FGD in Chittagong41 said that apart from physical violence, the other most common form of abuse is economic deprivation, where the husband denies or fails to provide maintenance to his wife and children. Individuals involved in providing assistance to survivors said that in Bangladesh, mental torture or verbal abuse, even if severe in nature, is very rarely grounds for complaint unless accompanied by physical torture or other abuse. Patriarchal socialization and economic factors mean abuse is tolerated by most women and children. In Bangladesh, sexual abuse and rape by the husband is not considered to be an offence per se and the law relating to marital rape only applies in the case of the wife being under the age of 16.42 A 2000 UNICEF report notes that women in many societies do not consider forced sex rape if they are married to, or cohabiting with, the perpetrator. The assumption is that once a woman enters into a contract of marriage, the husband has the right to unlimited sexual access to his wife.43 In Bangladesh this is the accepted view, and unlikely to change without substantial cultural pressure.

3.3. Seeking Help Despite the large numbers of women and children who are routinely victims of domestic violence, very few access the legal system, or for that matter, any other intervention. According to the BBS VAW Survey of 2015, only 2.6% women at the national level have taken legal action against the violence committed against them. Additionally in spite of the existence of a government helpline for women

38 Khalid, Saeed Ahsan (2015). 39 Ibid. 40 Khanom, Airin (2014). 41 FGD with Area Coordinator and 9 Legal Counselors of the PHR Program from Patita Upazila, Chittagong, at Project Office, Laldeghirpar, Court Road, Chittagong. For full list of FGDs see Appendix IV. 42 The age of 16 has been delineated as the age of consent under Section 9 of the Women and Children Repression Prevention Act of 2000. For more on the age of consent and related issues see Huda, Shahnaz (1997). 43 UNICEF, (2000), 6. 27 victims, only 2.4% women at the national level 1.9% in rural and 3.8% in urban areas are aware of such support.44

Although domestic violence cuts across social and economic lines, the reasons for not protesting or taking action may be different.

For more economically solvent and secure survivors of such violence it may be mostly a question of social prestige which prevents them from protesting against abuse or seeking intercession. In Bogra, the participants of a FGD45 said they thought that people belonging to the upper classes do not want to publicize the violence within their homes, let alone file suits or go to court. The women who do decide to go to court do so only when the situation has deteriorated to such an extent that they have nothing to protect. At that stage, it was generally agreed, what they want is to punish the abuser, since keeping the family intact has ceased to be an option. Once an allegation reaches the court under any of the laws, such as the Dowry Prohibition Act of 1980, the Women and Children Repression Prevention Act of 2000, and in some cases under the DVPP Act, the likely scenario is that the husband pronounces divorce. The District Legal Aid Officer of Chittagong said in an interview that even if a case is not filed, the fact that a husband is called to appear before the DLAC office, which is situated within the court premises, may be grounds for divorce.

For poorer women, the reasons for not accessing the formal judicial system are usually more pragmatic. Involving outsiders and especially the judiciary is very often considered to be the last resort since it is perceived that after doing so there is little chance of the family remaining together. As M. A. Mannan notes, women are acutely aware of the socio-economic realities that offer them few alternatives to the life of violence. Once daughters return to their parental homes, most parents struggle to keep them for long because of sheer poverty. Prospects for a second marriage are slim.46

Our research made evident that the type of assistance provided to a woman must be based on what she wants, which is very often not to go to court. The mid-project evaluation of PHR noted that there is a tendency in the majority of cases for legal counselors to lean toward mediation and that women are often not told all of their legal options. This approach, the evaluation asserted, “compromises women’s agency, as they are not treated as decision makers in their own lives.”47 Given the absence of choices that a Bangladeshi woman possesses, in many cases she has few options. The midterm evaluation stressed that women’s decision-making power should always be at the forefront of all client services, and that legal options be explained in clear, simple-to-understand language.

At all stages, including in the court, attempts are made to compromise and to find the best solution. Our research showed that an aggrieved person first attempts to access the available local informal

44 http://www.dhakatribune.com/bangladesh/2016/10/02/survey-70-married-women-face-marital-violence/ 45 FGD with Legal Counselors of PHR Project, Jan. 6, 2016. (For full list of FGDs see Appendix IV.) 46 Mannan, M. A., (2002), 17. 47 Barr, Zakia, & Islam, (2014), 12.

28 mechanism such as the village Shalish48 and then, secondly, the Union Parishad Chairman’s office to settle the dispute.49 If such interventions fail, she tries to get help and advice from available agencies such as the legal counselors under the PHR project or other projects, through whom she may go to the Upazila Women Officer (who is the EO under the DVPP Act) of the area. She accesses the office of the latter directly in some cases. Several survivors of violence interviewed said that they had heard about the possibility of assistance from the above individuals or offices from uthan boithakhs (courtyard meetings for women) or from village chawkidars (village policemen). BBS found that one of the reasons for not accessing the law was the prevalent belief that a husband had a right to torture his wife. The culture of shame and silence surrounding domestic violence is the biggest barrier faced by women in accessing justice. Women often regard domestic violence as part of married life. When they do respond, “they are merely taking action to avoid further violence by trying to conform to their husband’s demands and expectations. For example, they may try to do their housework better or try to obtain dowry or economic assistance from their families,” according to the authors of “Women’s Rights, Domestic Violence, and Recourse Seeking in Rural Bangladesh.”50 The persistent belief that the husband has a right to control his wife and children leads to the acceptance of violence within the home as “normal” or “acceptable.” Mannan notes that the underlying explanation for the abuse of women is a husband’s perceived right to control his wife and a social structure that legitimizes the exercise of this right.51 His field work found a cultural tolerance for wife beating: yy When the wife disobeys, the husband has the right to beat her for disciplining her. yy Beating is for the woman’s own good. If she does something wrong, loses something or hits children in anger, the husband must use force to teach her. yy Men should not beat their wives but if the wife fails to bring fresh dowry or if her parents cannot give him presents occasionally, then the husband has got the right to be angry and misbehave with his wife.52 Without a cultural shift, this practice is bound to continue. NGOs are, courtyard by courtyard and doorstep by doorstep, making a small difference in this regard. If these efforts were to be duplicated on a massive level, there might be some eventual long-term change.

48 Shalish is a popular form of informal arbitration or adjudication of petty civil and criminal disputes in the rural areas, by leaders and important people of the village. 49 Although very popular, there are dangers in informal arbitrations and the possibility of trying to settle criminal matters illegally. The EO of Nandigram, Bogra gave an example of how a village Shalish, in the case of a rape of a seven-year-old child, had fined the rapist only 5,000/-. She later rescued the girl, helped lodge criminal charges and eventually the High Court ordered those who had held the Shalish to be made party to the case. 50 Schuler, Sidney Ruth, Bates, Lisa M., & Islam, Farzana, (2008). 51 Mannan, (2002), 5. 52 Mannan, (2002), 17. 29 30 31 Chapter Four

30 31 Law

4.1. DV in Law: Before and After the DVPP Act of 2010 Before 2010, the law in Bangladesh did not sufficiently address the varied forms of domestic violence, and legal options for survivors were unclear, at best. The law related to violence against women and children, the Women and Children Repression Prevention Act of 2000,53 falls short of adequately dealing with domestic violence. The 2000 legislation addresses many offences against women and children including rape, acid violence and kidnapping. Domestic violence offences come within the jurisdiction of this Nari O Shishu Nirjatan Daman tribunal only if such violence is connected to the demands for dowry.54 In all other cases of domestic violence, the tribunals established under the Act of 2000 must take their “hands off.”55 This rule has had the effect of encouraging cases with the false allegation of dowry demands cited as the motive for very real violence. As a consequence of such false claims, conviction rates have continued to be abysmal. Before 2010, in all cases of physical violence within the family unrelated to dowry demands, survivors had the right to access the criminal courts under the Penal Code of 1860.56 Both the laws of 1860 and 2000 deal with more serious physical injuries and such offences which are cognizable57 and non-compoundable.58 It is generally agreed that once an allegation is made under these Acts and the alleged perpetrator arrested, there is little hope of retaining family ties. The other popular form of redress favored by women is the Dowry Prohibition Act of 1980, which makes the demand of dowry itself an offence, whether or not any violence is involved. Table: Laws in Bangladesh utilized by victims of VAW including domestic violence prior to the enactment of the DVPP Act of 2010 Year Laws Sections 312, 313, 314, 326A, 366, 366A, 366B, 372, 373,375, 498, 509 Offences related to marriage, acid attacks, 1860 Bangladesh Penal Code kidnapping, procuration, importation, prostitution, rape, insulting modesty and so forth. Personal laws: The Divorce Act, The 1869, Dissolution of Muslim Marriages Act; The Marriage, dissolution of marriage, 1939, Hindu Married Women’s Right to Separate dower, inheritance, polygamy, dower and 1946,1961 Residence and Maintenance Act; The maintenance and 1985 Muslim Family Laws Ordinance and The Family Courts Ordinance

53 Officially known by its Bangla name as Nari O Shishu Nirjatan Daman Ain, Act No. 8 of 2000. We refer to this sometimes also as the Women and Children Repression Prevention Act, 2000 or Act of 2000. 54 The Women and Children Repression Prevention Act of 2000 in Section 11 deals with all dowry-related violence including murder and grievous as well as simple hurt. Strict punishment is laid down in Section 11 for such offences including the provision of mandatory death penalty for death related to dowry demands. 55 Osena Begum Alias Babuler Ma and another vs. The State 55 DLR 299. 56 Act No. XLV of 1860. 57 Within the jurisdiction of a court. 58 Serious in nature and not available for compromise in a courtroom. 32 Year Laws

1980 Dowry Prohibition Act Demand for dowry

Women and Children Repression Kidnapping, prostitution, rape, torture for 2000 Prevention Act dowry

2002 Acid Violence Prevention Act Violence through acid attacks

Domestic Violence (Prevention and Domestic violence (physical, 2010 Protection) Act psychological, sexual and economic)

The DVPP Act was passed in 2010 because of the difficulties faced by women and children in obtaining redress for various types of domestic violence. It acknowledges the pressing need to address such violence through the law while at the same time attempting to preserve the family institution. The acknowledgement of acts committed within the home as offences that may be addressed by the courts, is, by itself, an achievement in the context of Bangladeshi society. The DVPP Act of 2010, and its corresponding Domestic Violence (Prevention and Protection) Rules59 of 2013 address all types of violence committed within the home, irrespective of the motive. The Act provides several remedies including orders for protection, residence and compensation. The main object of the DVPP Act is to secure a safe family environment. All offences under this Act are designated as compoundable, thereby allowing for compromise. In cases of acute violence or those of a grievous nature, women need to access the general criminal courts unless the violence is caused due to dowry demands, in which case they may access the Special Tribunal under the Women and Children Repression Prevention Act of 2000. The uniqueness of the DVPP Act lies in combining elements of both civil and criminal laws. The preamble to the Act stresses Bangladesh’s obligations as a State Party to the CEDAW and the CRC international conventions to protect women and children from domestic violence. The DVPP Act defines this violence as “any act of physical abuse, psychological abuse, sexual abuse or economic harm by a person against a woman or child with whom he has a family relationship.”60 “Family relationship” is defined as a “relationship between two persons who are related by consanguinity, marriage or adoption or as members of a joint family,” while “family” comprises of those persons who live or have, at any point of time, lived together in a shared residence due to being related by blood, marriage or adoption or due to membership of a joint family (Section 2 (11)).

59 Officially named Paribarik Shohingshota (Protirodh O Shurokkha) Bidhimala, 2013. 60 Section 3. 33 The Act breaks down different types of violence. It allows access to the court for remedy on the ground of psychological61 and economic abuse62 as well as physical and sexual abuse. The concept of psychological abuse as grounds for accessing the criminal courts has not hitherto existed in the legal system. The Criminal Procedure Code of 1898 allowed access to criminal remedies for a husband’s failure to maintain his family under Section 488, which was omitted in 2007. After the enactment of the Family Courts Ordinance 1985, the proper forum for economic deprivation is the family courts. Family courts provide for the dissolution of marriage as well as for demands for dower and maintenance for Muslim women, and maintenance within the marital home as well as separate residence and maintenance for Hindu women. Guardianship and restitution of conjugal rights may fall under the category of cruelty, psychological abuse or economic abuse. Physical abuse is by far the most common form of domestic violence. Under the DVPP Act, this is defined as “any act or conduct by which the life, health, security or any organ of the body of the aggrieved person is harmed or is at risk of being harmed and includes forcing such person to take part in criminal activities by intimidation, force or assault.”63 Interviews with magistrates as well as lawyers indicate that, although the Act is not completely clear about the type of violence which forms the basis for a lawsuit, it is agreed that it is limited to less serious forms of such violence, referred to colloquially as phola jakham, or swelling injury. Justice Imman Ali of the Appellate Division of the Supreme Court of Bangladesh, pointed out that the “perceived threat of violence” should also have been included in the definition of violence.64 The Act acknowledges that violence within the domestic arena is not limited to wife abuse. Remedies are available to all women and child victims of such violence. The Act defines a woman as a female of any age and a child as a person who has not attained the age of 18 years. Effectively, it covers all sorts of abuse committed against women and children, including male children below the age of 18,65 and any member of the family, not necessarily the wife. For example, in 2013 it was found that although the majority of cases of domestic violence received by BLAST were from women (27 of 28 complainants), there was a case where a grandson filed against his grandfather. Suits have been filed against different kinds of relatives, such as against brother, brother-in-law as well as by mother-in-law against daughter-in-law, 66 Domestic family violence thus includes abuse of children, siblings, parents, and in-laws.67 However, although the DVPP Act acknowledges that such violence may be committed against boys who are under 18, the reality is that the vast majority of the survivors of domestic violence are girls and women. Although the DVPP Act came into force in December of 2010, the Rules (dealing with procedures for filing cases under the Act and other details) were not enacted until 2013. The first case was filed in

61 Psychological violence includes verbal abuse, including insults, ridicule, humiliation, insults or threats of any nature; harassment; or controlling behavior, such as restrictions on mobility, communication or self-expression (Section 3(b)). 62 Economic harm is deprivation of financial resources to which the victim is entitled; withholding articles of daily necessities to the victim; withholding stridhan or dower or alimony or any consideration for marriage or any property owned by the victim; transferring without consent any assets owned by her; prohibiting continued access to resources or facilities which the victim is entitled to use or enjoy by virtue of the family relationship (Section 3(d)). For full text, see law in Appendix I. 63 Section 3(a) [English translation of DVPP Act]. 64 Personal interview with Justice Imman Ali. 65 Under the Nari O Shishu Nirjatan Daman Ain, a child is a person under the age of 16. 66 ASK and BLAST, (2013), Workshop on Monitoring Domestic Violence in Bangladesh. 67 MJF, (2009), 39. 34 July of 2011 by the Bangladesh National Women’s Lawyers Association (BNWLA)68 after the Senior Judicial Magistrate Court, Dhaka (Lutfunnesa vs.Dr. Md. Shajahan Howlader Cr. No. 276/11) issued interim directions for filing case. According to the Documentation Unit of Ain O Shalish Kendra (ASK), during the period of January to November 2015, a total of 292 cases of domestic violence were recorded, according to reports collected from different newspapers. Of that number, 28 women were tortured by their husbands and five by their husbands’ families. 167 women were murdered by their husbands and 31 by their husbands’ family; 16 were killed by their own family members; 45 committed suicide.

4.2. Law Enforcement: Police The DVPP Act of 2010 has imposed certain duties on the police force for proper implementation of the law while at the same keeping its direct involvement at a minimum. In the third chapter of the Act, the duties and responsibilities of police officers, enforcement officers and service providers are detailed. Under Section 4, if a “police officer obtains, by any means whatsoever, the information as to the commission of an act of domestic violence or becomes aware of such occurrence due to the fact that s(h)e is present at the place of occurrence” such officer shall inform the survivor of her rights, “including the right to make an application for obtaining relief by way of any order under this Act,” of the availability of medical services, and more importantly, of the services of the enforcement officers. The police officer must also inform the injured person of her right to free legal help under the Legal Aid Services Act, 2000 as well as of her right to file a complaint under any other existing laws. Under Rule 8, the police officer has a duty, upon being informed of an incidence of violence, to write down its particulars using Form F and to supply copies of this to the survivor. The officer must also inform the enforcement officer about the incident. He or she also has a duty to preserve articles and materials related to such violence and to assist the enforcement officer, including collecting necessary information. Police stations must keep a register of DV-related incidents. Our survey of police officers in nine police stations in Bogra, Dinajpur, Chittagong and Dhaka found only vague knowledge about the Act. Questioned as to whether the register and forms required under the Rules are actually available, the answer was negative in seven of the above police stations. In two stations in Chittagong—Patiya and Karnafuly—officers said they had heard about the DVPP Act from trainings received under the PHR Program. When we visited the first station in Chittagong, there appeared to be a lack of enthusiasm, although the station had a register book supplied by the PHR Program. The Karnaphuli Thana did not have a register book or forms. No complaints under the DVPP Act had come to them, the officers said. In Chirirbander of Dinajpur the register book had been supplied by the PHR Program. In Dhanmondi Thana of Dhaka, the Officer in Charge had taken the initiative to make the forms available. However, one OC said that procuring the forms involves several ministries and offices so it is a question of time before they are made available. The Multi-Sectoral Programme on Violence Against Women office produced letters showing that it had contacted police headquarters regarding the necessary forms and had been asked to make such forms available to the relevant units and the 650

68 See BNWLA, (2013). 35 police stations.69 These registers and forms had been delivered personally to all the police stations in Dhaka and by courier to those outside. An earlier study conducted by BNWLA had shown insensitivity and lack of awareness on the part of the police regarding the DVPP Act of 2010. This was reiterated by a small survey we did, which showed that the police have little interest in assisting in the implementation of the Act. Many members of the police force are unaware of the law and its provisions. Some are alleged to be more interested in encouraging survivors to file complaints under stricter laws such as the Women and Children Repression Prevention Act, 2000 since those provide them with opportunities of making more money through bribes. Since law enforcement has a crucial part to play in addressing violence against women and children, the government has undertaken several initiatives, with the assistance of NGOs and INGOs, to make such agencies more gender-sensitive and accessible. The participation of women in the Bangladesh Police has been doubled, from 1.8 to 5.24 percent (from 1988-2014). More women70 are represented in positions of authority.71 Victim Support Centers (VSC) have been established in partnership between the Bangladesh Police and 10 NGOs, including Bangladesh National Women Lawyers Association, to provide emergency aid and residential facilities. Establishing one-stop crisis centers and encouraging more gender-sensitive policing are steps in the right direction, but gender violence continues.72 And despite efforts made to make the police more accessible and gender-sensitive, the police continue to be viewed as hostile. The impunity of perpetrators, which is in the majority of cases based on political patronage and economic influence, negatively impacts the laws aimed at addressing violence against women and children. Such impunity is often encouraged by police inaction and bias towards the more powerful perpetrator. Some Bangladeshi lawmakers take the view that if the purpose of the law is to attempt to keep the family together, the less police involvement the better. However, many survivors of violence feel that the tendency to commit violence within the family is so deeply rooted, it is only by instilling fear of some consequence that such violence may be prevented.

Finally, even if survivors of violence do manage to access the law, they often experience further trauma on their journey to obtain justice. Incidents of police inertia as well as harassment and abuse of women are not unusual, along with having to pay bribes to register cases. Transparency International Bangladesh’s national household survey of 2015 identified law enforcement agencies as the second-most corrupt among different service sectors in Bangladesh.73

There is hope, however. PHR has been working with the ten police stations in its project locations to change attitudes and behavior toward women, increase skills and knowledge regarding women’s rights

69 Memo: Na.o Shi.Ni.Pro.Cell/mshimontro:44.010000.047.03.001.15-206 dated May 31, 2015. 70 Women currently employed in senior positions in the police department: one Inspector General, two Director Inspector Generals, two Additional DIGs, 12 Superintendents of Police (SP), 57 Additional SPs, 19 Senior ASP, 111 Assistant SPs, 58 Inspectors, 475 Sub-Inspectors (SI), and 411 ASIs. 71 UNDP (2015). Project Document of the Police Reform Project. 72 Huda, (2015).

73 Transparency International Bangladesh has conducted surveys on corruption in Bangladesh since 1997 which show, among other things, how households face corruption and irregularities while accessing service from law enforcement agencies. See Corruption in Service Sectors: National Household Survey 2015, https://www.ti-bangladesh.org/beta3/images/2016/es_nhhs_16_en.pdf. 36 and laws that protect women, and designate female-only areas within the station where women can be attended to privately. It is also working for the appointment of more women on the force. In the course of working with these police stations, PHR has observed positive changes in the attitudes and behavior of police toward those affected by domestic violence.

4.3. Law Enforcement: Enforcement Officers Because the DVPP Act does not rely on the police force for implementation, it lays out a new position, that of enforcement officer (EO). “Enforcement officer” means the Upazila Women Affairs Officer under the purview of the Department of Women Affairs, or any officer appointed by GOB under Section 5 of the Act. The law states that the government shall appoint one or more enforcement officers in each Upazila, thana, District or metropolitan area and shall also notify the area or areas within which such an officer shall exercise his or her powers. There are approximately 488 Upazilas and 64 Districts in Bangladesh and all have Women Affairs Officers. Section 6 lays down the ten duties of these officers.74 They include liaising between the police, the court and other agencies on behalf of the aggrieved person; applying for protection orders; and helping survivors access legal aid, medical assistance and shelter.75 The Domestic Violence Rules of 2013 further describe the responsibilities and duties of enforcement officers. These include, in Rule 4: (a) Informing the aggrieved person about her rights and remedies under the law and supplying booklets free of cost (b) If necessary, assisting the victim or any other person to fill the relevant Form A (c) Extending necessary help to aggrieved disabled women and child victims, taking into consideration such disability (d) Assisting the Court according to its demand or direction (e) Following up, either on her/his own initiative or with the assistance of service providing agencies, the progress of domestic violence cases Information is to be provided in the following ways: If any victim, or any other person on her/his behalf, has reasonable grounds to believe that domestic violence has taken place or is likely to take place, such person will inform the enforcement officer, of competent jurisdiction, of the issue or occurrence, in writing in accordance with Form A, or orally or by telephone, mobile phone or e-mail. The officer shall enter the above mentioned information into a register maintained for such a purpose and supply a free copy of the report to the survivor or the informant (Rule 3(2)). Since EOs are located at the Upazila level, many villagers do not know about them. Several EOs were asked how women hear about them or know to access them. They said that villagers become acquainted with them primarily through programs such as selection and distribution of VGD or VGDUP76 benefits,

74 See Appendix I for full text of the duties of the EO laid out in Section 6. 75 See Appendix I for full text of the duties of the EO laid out in Section 6. 76 Vulnerable Group Development and Vulnerable Group Development for Ultra-Poor, respectively. 37 allowance for mothers, and women’s groups. However, our research has shown that most women access the services that are nearest to them or through someone they have direct contact with, such as village chawkidars, NGO workers at the Union level (such as legal counselors at the Union offices), or social workers under the PHR project. We interviewed a number of enforcement officers and talked with them during several FGDs. Overall, they felt lukewarm about the success of the Act. They said that there is an overall reluctance, especially with regard to matters within the family, to access the courts, which is backed up by earlier studies. EOs felt that for the poorer segments of society, once a matter is referred to the court, there is little or no chance of continuing family life. Men, the EOs said, immediately move to divorce their wives if the latter go to court and for this reason women, even if subjected to grave violence, prefer informal modes of arbitration. In more affluent families, the EOs said it is a matter of great shame to be called to appear before the court; women shy away from accessing the DVPP Act from fear of social stigma and the same fear of divorce seen in poor segments of the population. The EOs said that another reason why there are so few cases under the DVPP Act is a lack of awareness about the Act itself. Not only aggrieved persons but many lawyers and even judges seem to be unaware of the law. In many cases, survivors of domestic violence come before the EO and it is for the EO to decide the best option; that is, whether it is something in which the court should be involved and, if so, which is the proper court and the relevant legislation. EOs find that in the majority of cases where the violence is such that it warrants action by the court, the Women and Children Repression Prevention Act of 2000 or the Dowry Prohibition Act of 1980 provide the best remedy. When a woman decides to access the court she prefers a court which has “more teeth” and can ensure that the perpetrator is arrested and later convicted. In many cases women and children do not have the option of going to court at all, since they are economically dependent on the perpetrator and so the EOs can only try to reach some sort of settlement. The EOs who are Women Affairs Officers of the Upazilas or Districts have a multitude of tasks to perform. When asked whether adding DVPP Act enforcement is burdensome, considering their other duties, it was the general consensus that it does not constitute additional pressure since they have to deal with violence-related issues anyway. However, logistics can be challenging. For example, if EOs have to visit a place or give a report as per order of the court, they might not have transportation, and the money allotted by the government for travel is negligible, which means that they often end up spending from their own pockets. Under Section 25 (2) an order of a court, other than a warrant of arrest, may be served by the EO who is required to so “within 3 (three) working days and submit the service return to the court along with a certificate that such order was duly served [25(3)].” This process also involves travel expenditure. Under the Act, the EOs are also responsible for monitoring the progress of DV cases with the assistance of service providers if necessary and for this they require resources, which they often lack (see Rule 4(e)). One EO said that it would be convenient to have an assigned lawyer. As the situation now stands, EOs either refer cases to NGOs such as BNWLA or BLAST where available, or refer cases to the District legal aid committee office. The Upazila and Union-level legal aid offices have yet to be activated. Only 17 Districts have appointed full-fledged District Legal Aid Officers. EOs are given regular training, including refresher courses on all aspects of their employment including the DVPP Act. They appear to have an understanding of their duties under the Act, but generally have little practical experience with it. Many appear to depend on NGOs to assist them in accessing the proper legal forum, which raises the question of sustainability in the absence of such agencies or personnel. 38 In addition, there is the question of access: one police official in Bogra pointed out that EOs are not available during the weekends and after office hours. Our survey of 49 EOs shows that survivors come to them with complaints of all types of abuse but in most cases the EO ends up settling the matter, which is what the aggrieved person wants. The survey confirmed that in the majority of cases EOs try to settle the dispute through mediation and that the cases which they think should go to court are mostly under the Act of 2000 or the Dowry Prohibition Act of 1980. It is only in cases of grievous injury that the penal laws with strong punishment are used. In certain cases the family courts are accessed to get maintenance or dower money. Very rarely do survivors access services for mental violence unless it is accompanied by some other kind of violence, mostly physical and/or expulsion from home. The DVPP Act is rarely the chosen option for the aggrieved party. The general consensus is that there must be much more awareness-building about this law through the use of various media. The tendency to pronounce divorce as soon as a case is brought is common and this not only negates the purpose of the Act, but forces the matter outside the jurisdiction of the magistrate. EOs would like specific, clear instructions from the court. In several of the case files surveyed, the court had made EOs responsible for aiding in the recovery of property from the marital home. However, in work conducted on behalf of BLAST, in which a researcher analyzed 34 cases filed under the DVPP Act, only one case showed the court giving specific instructions to the EO.77 The Rules could be more detailed in this regard. Finally, EOs could use more GOB support. Both Act [section 6(f)] and Rule [5(4)] require that EOs maintain a list of all legal aid and human rights organization or psycho-social counseling services, shelter homes and medical facilities within the jurisdiction of the court. The Rule states that such lists shall be displayed prominently in the office of the EO so as to be easily visible to all. Only one of 49 EOs said that the list is there in her office; one other mentioned she had downloaded the list from the ministry website. The Ministry of Women and Children Affairs is charged with forwarding and supplying such lists to EOs.

4.4. Assistance for Survivors: Service Providers EOs rely on service providers to help implement the DVPP Act. These organizations, involved with the rights of women and children, are registered under different laws (such as the Societies Registration Act of 1860 and the Voluntary Social Welfare Agencies (Registration and Control Ordinance of 1961) to help survivors of domestic violence. Service providers are selected after applying to the Ministry of Women and Children Affairs. Lists of service providers at the division and District levels are to be sent to the relevant EOs and published in newspapers and the ministry’s website. However, we did not find any such lists in any of the offices of EOs we visited. Our EO survey confirmed that the lists had not been sent to them. Such lists do not appear to be accessible on the website either. We collected a list of service providers from the Cell Division of the MoWCA, which cited 91 organizations, representing 39 out of 64 Districts. The other 25 Districts have only one or two organizations, which have been accepted officially as service providers under the Act.78 In some cases,

77 Yasmeen, Taslima, (2015). 78 List of service providers collected on 7 April 2016. 39 NGOs have applied to MoWCA to be recognized as service providers for the implementation of the DVPP Act, but have not received a response.

4.4.1. Shelter Homes Under Section 2(4) of the Act, “shelter home” means any registered institution or shelter with residential facilities maintained or managed by GOB or NGO, where a survivor can stay safely on a temporary basis. Either the service provider (under Section 7) or the enforcement officer (under Section 8) can arrange suitable shelter for a woman and her children if necessary. Ministry of Women and Children Affairs (MoWCA) has shelter services in six places—Chittagong, Dhaka, Khulna, Sylhet, Rajshahi and Barisal—where women can stay, along with two children under the age of twelve79 for six months. The stay may be further extended by up to six months.80 The One-Stop Crisis Centers (OCCs) under the Multi-Sectoral Programme on Violence Against Women of MoWCA81 also have temporary shelter services. Victim Support Centers (VSC), under the Police Reform Program of the UNDP, provides eight transitional residential facilities with a five-day shelter maximum. Under the Department of Social Service (DSS), Ministry of Social Welfare, there are also eight drop- in centers, safe homes (short term) and shelter homes (longer term/six months). Manusher Jonno Foundation (MJF) is working with the DSS through partner organizations to ensure effective, quality and sustainable services providing: a) health care-related support including psycho-social counseling, b) legal aid and c) income-generating and social reintegration support. The location of the safe homes, together with the names of the NGOs working with MJF, are listed in the table below:

Table: MJF Safe Homes with Partner NGOs

Safe Home Location Partner NGO Rajshahi Shacetan Bagerhat, Khulna MSSUS Barisal Speed trust Chittagong ELLMA Gazipur, Dhaka VAWFSD Faridpur Racine Tongi, Dhaka VAWFSD Sylhet FIVDB

Source: MJF Office.

The shelters run by the GOB and those run by the GOB and its partners do not come close to addressing the need for help. There are many shelter homes run by different NGOs, to address this shortfall. For instance, Asroy Shelter Home, run by Tarango, a Women Development Organization, provides shelter and food for vulnerable women and their children in danger (for up to six months). Dhaka Ahsania Mission runs a shelter home in Jessore. Sabalamby Unnayan Samity (SUS), with Swedish support,

79 Keeping more children than two needs direction from the court. 80 Personal interview with Mst. Ferdousi Begum, Deputy Director, Nari Nirjatan Pratirodh Cell, Eskaton. 81 www.mowca.gov.bd and National Action Plan to Prevent Violence Against Women and Children 2013–2025. 40 provides shelter for 10 vulnerable women (for a maximum of one year), with a view to making them self-reliant by increasing their economic opportunity and making them aware of their health and legal rights.82 RDRS and Bachte Shekha are also reported to have homes which provide shelter to women and children for up to a year, and which provide skills development training, counseling support and non- formal education.83

The UN CEDAW Committee said that to promote Women´s Human Rights, the Bangladeshi government must commit to ensuring gender equality, improving service delivery (with its access to justice and services, including shelter) and access to immediate means of redress, rehabilitation and protection.84 An earlier study by BNWLA showed that very few shelter home supervisors were aware of the DVPP Act and about their role and responsibilities under the law.85 We also found that existing shelter practices do not conform to the principles of a rights-based approach, since in traditional shelter services provided by both NGOs and GOB agencies, survivors remain confined, their right to mobility and freedom curtailed, while the perpetrators remain free, which also contradicts Section 3(b)(c) of the DVPP Act.86 The care and services provided are minimal at best and do not ensure smooth reintegration of the person into their social and family life.87

Bangladeshi women’s and human rights organizations, including the Bangladesh Women Lawyers Association (BNWLA), Mahila Parishad, ASK and several others are active in providing different forms of assistance, including shelters for women and children. Ain O Shalish Kendra provides legal and social support and it also runs a secure home for children and women survivors while they await legal aid services.88 The BNWLA shelter home, Proshanti, established in 1993, provides shelter services to women and children. Many agencies, including the police and other NGOs, use the services of such shelters.

Even with NGO aid, the shelters do not even begin to have enough space for the women and children who need such assistance. There are eight GOB short-term shelter homes available, and eight long- term ones. NGOs run at least 15 other shelters. At a minimum, there should be at least 64 shelters in Bangladesh, one for each District.

Our conversations with EOs and police personnel confirm that they often feel they have very few, or no, options finding shelter for someone who needs to be sent to a safe place. For example, survivors of violence in Bogra or Dinajpur can find the nearest governmental services in Rajshahi, which is difficult to access. Ignoring the social stigma of travelling far from home, there is the problem of public transportation, which, when available, moves at a snail’s pace. PHR staff in Dhaka and the Districts note that the lack of shelter options is a weak area of DVPP Act support, because women cannot realistically access GOB or NGO shelters far from their villages.

82 Sabalamby Unnayan Samity (SUS). 83 Participatory Management Initiative for Development, (2012). 84 CEDAW/C/BGD/Q/7/20a. 85 BNWLA, (2013), 28. 86 Mazumder, Sadrul Hasan (2010). 87 Ibid. 88 ASK. 41 4.4.2. Community Shelter Homes To work around the issue of insufficient or inaccessible shelters in Bangladeshi villages, the PHR program has introduced a model of community shelter, whereby a survivor can stay temporarily with a chosen family member or neighbor. It has been BNWLA’s experience during the implementation of the PHR program that survivors of violence, especially domestic violence, usually refuse to go to formal shelters because such shelters are too far away from their communities and situated in places which are unfamiliar to them. Cultural norms can make it difficult for women to seek assistance because of the socio-cultural stigma attached to going to shelters in general. Survivors who returned to their communities after having taken advantage of formal shelter services were not easily accepted back by the community or by their own families. There is often suspicion attached to women going away and living in unfamiliar surroundings. BNWLA introduced the community shelter concept on a pilot basis for a few survivors. The concept won the approval of both survivors and the community. So far, 51 women have received such community shelter and livelihood support under the PHR program, which works in six Districts. Most of these women have been welcomed back into their families after successful mediation by the program’s legal counselors, with the support of the community. The community shelter home program has helped communities play a crucial role in helping women by providing much-needed refuge. The survivor herself selects and proposes a person from among her relatives and friends with whom she wishes to stay for a stipulated time, usually not more than six months. If the proposed host agrees to give the woman shelter, PHR staff and Social Protection Group (SPG) members assess the eligibility of the host, the woman’s welfare and other conditions. If the arrangement is found to be satisfactory, both host and survivor sign a MOU in the presence of BNWLA staff. A General Diary (GD) is also filed at the local police station, giving all the details of the arrangement. The PHR program assists the host with monthly expenses to defray the added financial burden,89 paying a sum not exceeding Taka 120/- per day. PHR also refers women to local organizations providing livelihood and skills such as tailoring, gardening, and computer training to help them become self-sufficient and build up their earning capacities. This community shelter model offers much promise as a way to make up for the scarcity of shelter services in Bangladesh.

89 Plan International, “Survivor Services: Protecting Human Rights Program,” https://www.planusa.org/docs/phr-survivor-services.pdf. 42 43 Chapter Five

42 43 Court

5.1. The DVPP Act and the Court Under the DVPP Act, the Judicial Magistrate (jurisdiction at the District level) or where applicable, the Metropolitan Magistrate (jurisdiction in metropolitan areas) hear domestic violence cases. These magistrates have unlimited jurisdiction in granting compensation orders (21(2)). In Bangladesh, each district has several Magistrate and Metropolitan Courts. All offences under the Act shall be cognizable (Section 29), or “within the jurisdiction of a court,” which means that a police officer may perform an arrest without a warrant. Generally, more serious crimes such as murder, robbery, rape are considered cognizable. In other cases, where the offence is non- cognizable, a police officer has to first obtain a warrant before making an arrest. Although offences of domestic violence are extremely serious, many judges as well as activists have questioned the rationality of making domestic violence-related offences cognizable. For the purpose of disposal of any application or proceeding,90 the court may ascertain the truth of the allegation. The serving of orders (same as under the CrPC) may be by the court process server, by the police officer or by the enforcement officer who shall have three working days to submit the service return to the court, along with a certificate that such order was duly served (Section 25). An order or notice may also be served by registered post or by courier service or by any other way. However, only a police officer can issue an arrest warrant. The question of issuing a warrant arises only in specific cases under the DVPP Act such as when the respondent fails to appear before the court, despite notice being properly served. In order to ensure speedy justice, the Act directs that the trial procedure is to be completed within 60 days from the date of application. Such time may be extended an additional 15 days and then another seven days. The relevant Appellate Court must be informed of every case of extension.91 Taslima Yasmeen, an Assistant Professor and legal researcher from the University of Dhaka, notes that the time limits for disposal of an application is seldom followed. She found that an average of four to nine months passed before the court reached a final order. Ongoing applications appeared to have been pending over nine to twelve months on average.92 In order to preserve the privacy of the parties the trial may be held in camera (in the magistrate’s chamber) if the court considers it necessary or with the consent of the parties. Various sources, including some judges we talked to,93 said that instead of magistrate courts, family courts would be more suitable to deal with cases under the DVPP Act. They suggested that the jurisdiction of family courts, presided over by assistant judges, should be expanded to include cases of domestic

90 Generally, for disposal of any application or trial of an offence or any proceedings under the DVPP Act, the provisions of the Code of Criminal Procedure (CrPC) shall be applicable. Section 22(2) states that for “disposal of any application or trial of an offence or any proceeding under this Act, the provisions of summary trial laid down in chapter XXII of the Code of Criminal Procedure shall be applicable.” Section 262 of Chapter XXII of the CrPC states that “in trials under this Chapter (Of Summary Trials), the procedure prescribed in Chapter XX shall be followed.” This means that Chapter XX and Chapter XXII of the CrPC both apply to the DVPP Act. 91 See Section 20, DVPP Act. 92 Yasmeen, Taslima, (2015), 20. 93 We convened magistrates and judges at “Experience Sharing Programs” on the Domestic Violence Act, 2010 from March 2014 to February 2016 in Dhaka and other districts including Rangpur, Barguna, Bogra and Jessore. 44 violence. However, other judges in our conversation disagreed, saying that the family courts were bound to give decisions based on the litigant’s religious affiliation (Muslim or Hindu in 99 percent of the cases), which could have the effect of curtailing the scope of relief (benefits) given by the court.

5.2. Remedies and Reliefs The DVPP Act has been referred to as a quasi-civil and a quasi-criminal law since offences of domestic violence under the Act are not punishable per se but only attract punishment in case of certain breaches. Domestic violence legislation attempts to keep the door open for reconciliation between the parties and that is why there is an intentional absence of punitive measures. The fourth chapter of the DVPP Act deals with the reliefs (benefits) and remedies available to the aggrieved person. These include:

(1) Protection orders—Interim (Section 13) and Permanent (Section 14) (2) Residence orders (Section 15) (3) Compensation orders (Section 16) (4) Safe custody orders for child/children (Section 17)

5.2.1. Protection Orders As in other countries, quasi-criminal solutions are given under the DVPP Act dealing with domestic violence. One such remedy is that of protection contained in Section 13. The concept of protection orders is unique in the context of the legal system of Bangladesh. These “protection” or “binding” procedures mean that a person can complain to a magistrate or a justice that violence has taken place and the violent party is then “bound” to keep the peace or be of good behavior.94 The standard of proof is lower than with strictly criminal proceedings and this may provide women and children appropriate relief. A breach of the order is a criminal offence and the police may arrest, without a warrant, a person who has contravened a protection order.95

5.2.1. a. Interim Protection Orders and Serving of Notice Upon receipt of an application under Section 11 of the DVPP Act, the court may, upon examination of all pertinent documents and being satisfied that domestic violence has been caused or is likely to be caused by the opposite party, issue an interim protection order against such party as well as issue a notice upon him to show cause as to why a permanent protection order shall not be given.96 In the event of non- appearance of the opposite party, the trial may be held in his absence and the court can pronounce its judgment upon the application and dispose of such ex parte (Section 26). In cases of non-appearance, the court also has the power to issue a warrant of arrest.97 An application rejected due to the non-appearance of the applicant may be revived under Section 27.

94 UNICEF, (2000), 11. 95 Ibid. 96 Section 13, DVPP Act. 97 Section 26, DVPP Act. 45 The following is an example of an interim protection order through an ex parte decree: Kakoli Begum was a garment worker. She married Sharif in 2012, with a promised dower of BDT 50,000. They moved in with his family to Monirampur in Jessore, and a daughter was born. Soon after, Sharif, at the instigation of his family, demanded a dowry of BDT 250,000. Kakoli paid the amount from her savings. However, demands were made for further dowry and allegedly Sharif, abetted by his family, physically abused her. The torture inflicted on Kakoli intensified and her movements were restricted. She and her seven month old were deprived of adequate food. At one point, to put psychological pressure on Kakoli, the child was separated from her and kept in another room. Finally, the husband, with the encouragement of his mother and sisters, physically assaulted her and drove her and the baby out of the house. Kakoli had to take shelter at a neighbor’s house, since her parents lived far away. Despite efforts to settle the matter in the presence of neighbors, the husband publicly announced that he did not want to continue living with his wife.

With the intervention of the PHR program, Kakoli filed a case of domestic violence under the DVPP Act on behalf of herself and her infant daughter. They claimed relief under Sections 10, 11, 13(1), 14, 15 and 16. Sharif’s mother and sisters appeared before the court and denied having any connection with their son and his wife and claimed that they lived separately. Sharif did not appear before the court despite notice being properly given. In his absence, the Senior Magistrate of Jessore ruled that there was a family relationship between Sharif and Kakoli and from an examination of documents submitted it appeared that domestic violence had taken place. The applicant had the right to residence in the shared home under Section 10 and as such an ex parte interim protection order was decreed. The court ordered the husband to take adequate measures to ensure safe and peaceful residence of the applicant until disposal of the suit. The court also ordered him to hand over Taka 3,000/- as monthly maintenance for his wife and daughter, to be paid to the Monirampur Upazila Woman Officer. The court ordered the husband, the Monirampur Upazila Woman Affairs Officer and the Officer in Charge of the Monirampur Thana, Jessore all to take adequate measures for proper implementation of its decision.*98

5.2.1.b. Permanent Protection Orders Under Section 14 of the DVPP Act, the court may, after giving the parties the opportunity to be heard, and being satisfied that domestic violence has taken place or is likely to take place, issue a permanent protection order in favor of the survivor restraining the perpetrator(s) from certain acts. These include committing any act of domestic violence or aiding or abetting in the commission of such act; entering any protected person’s place of employment, business, or education or any other place or institution that the protected person ordinarily visits; from communicating with the protected person personally or by writing, telephone, mobile phone, email or any other form of communication; causing violence to dependents, relatives or any person who gives assistance to the survivor; or any other act which may be mentioned in the protection order. The following case is an illustration of a permanent protection order under the DVPPA Monowara and Karim were married in 2002 and had a son and a daughter. They lived in a house built on land bought by her father. Karim married a second time without his first wife’s permission. Seven months before

98 CR 75/14 Senior Judicial Magistrate Court, Monirampur, Jessore. *Note in these case studies, all names have been changed to protect privacy. 46 the filing of the application, Karim left to reside in his second wife’s home, stopped paying any sort of maintenance to Monowara and their children and did not keep in touch with them. In the beginning, Monowara tried to settle the issue through local authorities (i.e., the chairman of her Union), but her husband did not appear before the chairman. When Monowara went to him to ask for maintenance, he physically and mentally tortured her and turned her away. Karim’s second wife went to Monowara’s home and threatened her not to ever approach Karim or demand any sort of maintenance again. Monowara finally asked the PHR’s legal counselor for help and the panel lawyer applied to the court for relief against domestic violence committed by her husband and his family including his second wife, his parents, his brother and his brother’s wife. The court granted a permanent protection order and ordered the opposite parties to refrain from any act of physical or mental torture while she remained in her own place of residence.99 Yasmeen100 examined the remedies sought and those actually ordered by the courts. She found that the courts as well as litigants are relying more on protection orders under the DVPP Act than other forms of redress. Even in cases where other remedies have been sought or granted by courts, they were typically combined with a permanent protection order. She concluded that even in cases where the appropriate remedy should have been a residence order or a compensation order, the remedy ultimately sought by the applicant was a permanent protection order, so the remedy granted by the relevant court was only a protection order. On the other hand, there were a few orders that the court called protection orders, but which in fact included such relief as to make them effectively residence orders or compensation orders.101 Our research found that although applications are eventually withdrawn in the majority of cases, in several cases where the court gave relief, it was a combination of residence order and protection order to ensure the safety of the applicant from domestic violence while living at home. Ramina and Kalam were married in 2001 by registered deed. Soon after the marriage, Kalam and his mother started pressuring Ramina to bring money from her father. On Ramina’s refusal, they started to physically and mentally torture her. Ramina endured abuse, and on several occasions she was driven out of their home with her two infants. The elders of the community tried to settle the issue through compromise. On the day of the incident, in the absence of her husband, her mother-in-law drove a pregnant Ramina out of the house, while keeping her daughters. She took refuge with her parents, where she gave birth to her third daughter. Since Kalam ignored requests to meet and arrive at a settlement, she filed a complaint to the legal counselor of the PHR project of Osmanpur, who issued a notice for Kalam to appear. He repeatedly ignored such requests. Finally, Ramina made an application to the court under the DVPP Act against her husband and mother-in-law with the help of a PHR legal counselor.

5.2.2. Residence Orders In its definition of what constitutes a family, the DVPP Act emphasizes the fact that the perpetrator as well as the abused person either live or have, at some point, lived together in a shared residence due to some family relationship (Section 2(8)). Therefore, in order for an act to be considered an offence of domestic violence it must take place within a residence in which both live or have lived.

99 Senior Judicial Magistrate, Dinajpur (Case no-412C/12 Chirirbandar). 100 Yasmeen, (2015), 13. 101 Ibid. 47 The law clearly says that residing in the shared home is an inherent right of the aggrieved person as a member of a family.102 If she/he is deprived of such right, she may apply to the court for a residence order under Section 15, which grants such person certain rights and also imposes restrictions upon the respondent such as restraining him from residing or visiting the shared residence or specified part thereof where the survivor resides; and from dispossessing or in any other manner disturbing the possession of that person from the shared household.103 The court may, under such a residence order, direct the respondent to secure alternative accommodation, if necessary, for the aggrieved person as was enjoyed by her in the shared residence, or to pay rent for the same. It may also direct the respondent to permit any protected person, accompanied by the enforcement officer, to enter the offender’s residence, shared or not, for the purpose of collecting personal belongings, including documents such as educational certificates and passport as well as ornaments, mobile phones and so forth. The respondent may also be ordered to allow the protected person to have the continued use of a vehicle which was previously ordinarily used by her. Section 15 even allows the court, if it is satisfied that there is no other way to secure the personal safety of the protected person, to evict the person against whom the order is made, even if solely owned by him/her. The following case demonstrates how a protection order issued by the Court resulted in the preservation of a family. It was 2012 and in a village in Bogra, Aleya lived with her husband and their two children at her in-laws’ house. She frequently suffered mental and serious physical torture by her husband and in-laws. Her husband was having an extramarital affair. Whenever she tried to protest she was tortured even more. At one point she, along with her children, left her husband’s home and went to live with her mother, where she remained for about three months. Her mother took her to the No. 7 Auliapur Union Office of the PHR program. The legal counselor tried advising Aleya. According to the panel lawyer, Aleya was so traumatized she could hardly speak. She only wept, bitterly. Despite the torture, Aleya was desperate to continue her marriage. As per practice, three consecutive notices were sent to the husband to appear at the legal counselor’s office, each of which was ignored. The Social Protection Group members also tried unsuccessfully to settle the matter. Finally, with the help of the PHR panel lawyer, Aleya filed an application under the DVPP Act in which she prayed for protection as well as a residence order. She got both orders; in fact, the husband took her home from court. PHR personnel continue to monitor their situation and report that the couple is doing well despite some initial resentment on the part of the husband for being taken to court. Residence orders under the DVPP Act are meant to provide relief in cases of domestic violence, especially when the survivor has been driven out of the house and lacks adequate shelter. However, there are many practical difficulties connected with such orders, which may defeat their purpose. In Bangladesh, where a vast majority of people live below the poverty line, the concept of residence may very often consist of only one or two rooms where all family members live together and where all household activities take place. In such a situation, it may in reality be impossible for a separate space to be allotted to the aggrieved person despite an order of the court. The respondent may also be unable to afford to live apart or to pay for separate accommodation for his wife, even though the law makes such provision.

102 See Section 10, DVPP Act. 103 See Section 15, DVPP Act. 48 5.2.3. Compensation Orders Another relief available in Bangladeshi law is the opportunity for the aggrieved person to seek an order of compensation from the court for monetary relief.104 Under Section 16, the aggrieved person may file an application for compensation if there is any personal injury or financial loss or trauma or psychological damage or damage to movable or immovable property or any possibility of such damage or loss as a result of domestic violence. Such a claim for compensation may be filed either along with the application under Section 11 and/or separately. In such a case, the court shall dispose of such an application within six months of its receipt. The court can order compensation for the cost of treatment for injury and loss of earnings as well as for mental harm suffered. For the first time under the law, a survivor can file a case based on trauma or psychological damage. This provision is new. In the majority of the cases we studied, the court ordered payment of regular maintenance rather than compensation for harm caused due to domestic violence. In case of failure to pay, the court may direct the employer or a debtor of the respondent to pay the survivor directly or to deposit in her bank account a portion of the wages or debt due (16(9)). Under 16(8): If the respondent is an employee of any government, non-government, semi-government or autonomous organization, a copy of the compensation order shall be sent to the higher authority of the respondent. The compensation imposed under this section may be realized according to the provisions of the Public Demands Recovery Act, 1913.105 An examination of cases has shown that the compensation orders applicants commonly filed for were regarding claims for maintenance as provided under Section 16(5).106 The Act makes no mention of the applicants’ personal laws which, under family law, determine the issue of maintenance. The DVPP Act is therefore of secular application, which may be used potentially to bypass the often gender-discriminatory religious family laws.107 Under Section 16(5) of the DVPP Act, the court may pass an order against the respondent for the maintenance of the survivor as well as her children, if any, which is adequate, reasonable and consistent with her previous standard of living. Therefore, the Act of 2010 allows the aggrieved person to get relief from the magistrate’s court not only for domestic violence but also in certain matters for which she would have had to approach the family court. At our Experience Sharing Programs on the DVPP Act, judges suggested that like Section 40 of the Human Trafficking (Prevention and Suppression) Act of 2012,108 the 2010 Act should incorporate provisions under which the state can provide immediate and emergency support to the survivors of domestic violence from funds kept available for that purpose.109

104 Provision for compensation to be paid to a victim of violence was first introduced under the Women and Child Repression Prevention Act of 2000 and later incorporated under the Acid Offences Act of 2002. 105 Section 16(10). 106 Yasmeen, (2015), 17. 107 In countries like India, Nepal and Bangladesh, matters relating to family affairs (marriage, divorce, inheritance, polygamy and guardianship) are governed by personal laws related to one’s religious affiliation. 108 Act No. 3 of 2012. 109 Section 40 of the Human Trafficking (Prevention and Suppression) Act of 2012 provides for a fund to be established by GOB from which it may provide financial assistance to victims. 49 Sharbari Begum’s case is an example of how the Court can make an order of compensation in favor of a survivor. Sharbari Begum filed a case under the DVPP Act against her husband Adul Baten, her father-in-law and her mother-in-law. The husband, with the encouragement and abetment of his parents, demanded a dowry of BDT 100,000, for which Sharbari was physically and mentally tortured. Sharbari’s father arranged to pay BDT 45,000. After she became pregnant her husband continued to be abusive and stopped maintaining her or providing care. On the day of the incident, the opposite parties reiterated the demand for BDT 100,000 as dowry, assaulted the pregnant Sharbari and forced her out of the house. At her father’s house, Sharbari gave birth to a daughter. Her father called the opposite parties to his house and in front of witnesses requested that his daughter be allowed to live with her husband at their shared home with their daughter. The husband not only refused to take back his wife but also allegedly threatened and abused her and others present. Sharbari made efforts to arrive at a settlement through the PHR Program but failed. Finally, with the assistance of the PHR panel lawyer, an application was filed to the court under the DVPP Act on the grounds of mental, physical and economic abuse, violence and deprivation and the curtailment of her freedom of movement. She prayed for a protection order, maintenance for herself and her child and for compensation. She further applied for an order of residence and for a direction that she not be dispossessed from her husband’s home. The Court being satisfied prima facie that domestic violence had taken place and on the non-appearance of the opposite parties passed an ex parte order of interim protection. It opined that, since the applicant, under Section 10 of the DVPP Act, has the right to reside in the shared residence with her husband, she be allowed to reside peacefully and securely at the above household until the application was disposed of and directed the opposite parties to take adequate measures to ensure this. For the maintenance of herself and her child the Court ordered payment of Take 3000/-per month by the opposite parties -- to be handed over to the relevant EO which was to be collected from such EO by the applicant.110

5.2.4. Custody Orders Under Section 17 the court may issue orders for the custody of children: Notwithstanding anything contained in any other law for the time being in force, the Court may, at any stage of the hearing of an application under this Act, order that the custody of a child of the aggrieved person be given temporarily to the aggrieved person or anyone on her behalf for safe keeping and if necessary shall mention in such order the subject of the respondent’s visitation rights to the child. Our study found no example of this custody order being granted. Yasmeen, however, cites a case filed by a mother against her husband and in-laws with the aid of BLAST, before the Judicial Magistrate Court of Noakhali.111 The mother, who had been subjected to severe physical and mental torture by her husband and in-laws for failing to meet demands for dowry, was thrown out of the house with her infant daughter. Her two-and-a-half year-old son was forced to remain behind. The applicant tried to get back her son but her husband threatened to kill her if she tried to visit again. After attempts at conciliation failed, the mother filed an application under the DVPP Act with the help of local BLAST lawyers. Apart

110 CR 76/2015; Senior Judicial Magistrate Monirampur Cognizance Court, Jessore. 111 Yasmeen, (2015), 18. 50 from seeking a protection order, a residence order, and a maintenance order of BDT 8,000 per month, she separately filed for the temporary custody of her son under section 17 of the DVPP Act. The petition for custody mentioned that “separating the child from the mother may cause irreparable harm to both the child and the mother and as such the child must be returned to the custody of the applicant.” A decision is pending. Depriving a mother of the custody of a child as a way to put psychological pressure on a woman is far too common in Bangladesh. In a recent incident in Mymensing, Muktagacha a young woman was driven out of the house with her two older children, but was deprived of the custody of her youngest child, an infant daughter. Referred to the EO, notices were sent to the husband, who refused to appear. Finally, the mother, along with her parents, and despite threats from the husband and his family, managed to take back the child and she filed a case under the Act of 2000, with the help of an NGO referred by the EO, for repression on the ground of dowry demands. The husband, on the other hand, has filed a criminal case under Section 100 to take back his children. Since the woman has no intention of returning to her husband, the Act of 2000 rather than the DVPP Act was considered the most appropriate law and the husband has sued her in retaliation. The question of custody and/or guardianship of children is rightly a matter of the personal laws of the parties, to be determined by the family court. The DVPP Act has steered clear of considerations of personal laws both in the case of custody as well as in the maintenance of women. The consequences of domestic violence on children, even if they are not directly victims, need to be appreciated by the Bangladeshi courts in deciding applications for custody.112 Witnessing and experiencing violence as a child can also result in internalizing violence as a form of conflict resolution.113 Girls who witness their mother being abused may be more likely to accept violence as the norm in a marriage than those who come from non-violent homes.114 Courts must attempt to proactively remove children from homes where they are abused or where domestic violence is occurring in order to break the cycle of violence. The single best predictor of children becoming either perpetrators or victims of domestic violence later in life is whether or not they grow up in a home where there is domestic violence.115

5.3. Issues in Enforcement The DVPP Act does not provide for penalties or punishments for the act of violence itself. It is only if there is a breach of a certain kind of order that penalties in the form of imprisonment and/or fines are given. For example, the law does not specify any punishment if any order of residence is breached. If an order of compensation or an order of residence is breached, the court may be accessed again by the aggrieved party complaining of non-compliance. The breach of a protection order by the opposite party is an offence punishable by imprisonment of up to six months, or with a fine up to 10,000 Taka, or both (Section 30). Repetition of any offence is punishable by imprisonment of up to two years, or with a fine up to one lakh Taka, or both. In addition

112 UNICEF, (2006), 7. 113 UNICEF, (2000), 12. 114 Ibid. 115 UNICEF (2006), 7. 51 to punishment under Section 30, Section 31 introduces the concept of Community Welfare Service as an alternative. The court may order the respondent to perform community work for a specified period, instead of passing an order of punishment under Section 30. Community service programs first started in the West as an alternative sentencing option. There is some confusion as to what happens if there is a breach of other orders, since the Act is silent on that score. Only non-compliance of a protection order given under Section 14, or any of its conditions, attracts penal consequences, or an order for community service, as stated above. The court can order the opposite party to show cause as to why he should not be punished under Section 30 for breach. This section, however, clearly specifies that it applies only in cases where there has been a breach of protection order and omits mentioning any other orders. The opposite party can clearly use this as a defense. Under Section 14(a), in a protection order, the court may order that the respondent be restrained “from committing any act of domestic violence.” One wonders whether is it possible to consider the breach of any order of the court to be an act of domestic violence itself. One very serious gap in the Act is the effect of a divorce pronounced after an application is made to the court. Non-compliance with a court order when the aggrieved person has been served with a notice of divorce during the case creates confusion. After divorce such orders become clearly unmaintainable. However, magistrates have said that in the case of an order for compensation, since the cause of action requiring compensation arose during the continuance of the marriage, the order would have to be complied with, even though the parties were no longer “family” as construed under the DVPP Act. How to be fair to families in the case of divorce needs clarification. Additionally, in the case of a straightforward violation of a protection order when clearly punishment may be imposed under Section 30, there is no procedure detailed in the DVPP Act itself as to how punishment is to be imposed. CrPC 1898 talks about the process of the trial but not about the method of imposition of punishment. For instance, it is not specified whether the punishment shall be imposed with or without hearing the other party. Not giving the opposite side a chance to be heard goes against the principle of criminal justice, says Advocate Ehsanul Haque Shomaji.116 Section 32 of the DVPP Act imposes punishment for false complaint, again without allowing the survivor to be heard, which contradicts the procedure laid down in Section 250 of the Criminal Procedure Code of 1898.117 An examination of cases filed under the DVPP Act so far shows that the majority of cases are settled and withdrawn (Section 248 of the CrPC). For example, eight of 11 cases filed with the Magistrate Courts, Manirampur, Jessore, were withdrawn. Additionally, offences under the DVPP Act may be withdrawn if both parties decide to dismiss the case.118 If violence recurs after a case is withdrawn, the court has no jurisdiction until and unless a new case is instituted. Survivors of violence often become disenchanted by the weak enforcement of the DVPP Act and avoid further accessing the court. Yasmeen119 makes an important point when she says that in allowing withdrawals, the courts must be cautious about the rights of the applicant. The courts must ask whether the withdrawal is requested through coercion or any other fear; is the aggrieved woman making

116 Personal Interview with Ehsanul Haque Shomaji, Advocate and Former Metropolitan Public Prosecutor, Metropolitan Sessions Court Dhaka. 117 Ibid. 118 Dismissed cases are known as solenama. 119 Yasmeen, (2015), 42. 52 an “informed choice”? Yasmeen writes that her case record analysis shows instances where even after being severely tortured by the husband and going through several failed attempts to negotiate, when the woman finally reached the court under the DVPP Act, she withdrew the application on the grounds that the parties had resolved the issues mutually. In such cases, it may prove to be effective that the court includes in the order a follow up inspection and assigns an enforcement officer for that purpose. More importantly, the terms of settlement must always accompany an application [under Section] 19 and the court should be ready to assess whether the terms of settlement reached are specific and consistent with the rights with which the aggrieved person was otherwise protected under the DVPP Act.120 Yasmeen’s work and our research show that in the majority of cases filed under the DVPP Act, the applications are withdrawn based on purported “amicable compromise or settlement” between the parties.

Jamila Chowdhury,121 an expert on alternative dispute resolution (ADR), suggests that offences under the Act should be made compoundable (i.e., where compromise is allowed) on the discretion of the court and not automatically.122 She said that existing social discourse considers family violence a disgraceful event not to be shared with others because of “victim-blaming,” exacerbating any power disparity that women may face in their families, and which may compel women to be acquiescent to their husbands and in-laws. Therefore, indiscriminate compromising without proper screening of family violence cases would promote “decriminalization of violence” in the society, according to Chowdhury.123 Given the reality that violence is likely to recur or continue even after an application is withdrawn, Chowdhury believes that provision should be made in the DVPP Act so that the court can use its judgment as to whether compromise would be the most suitable solution in a particular case.124 Another problem of enforcement has to do with the definitions of what the term ‘family’ implies. The DVPP Act emphasizes that a family “comprises of those persons who live or have lived together, at any point of time, in a shared residence, when they are related by consanguinity or marriage or adoption or are members of a joint family;” and a “family relationship” is a relationship between two persons who are related by consanguinity or marriage or adoption or membership of a joint family.125 Given the emphasis put on “continuous” relationships, the position of women, who have applied to the courts for redress of DV and have then been divorced by their husbands or have had notices of divorce served upon them, is unclear. Magistrates told us in interviews about their inability to continue with a case once divorce is granted. The inclination of husbands to pronounce divorce when a case is brought under the DVPP Act is more prevalent than, for example, cases under the Women and Children Prevention Act of 2000, where divorce, after the commission of the offence, has little effect on the progress of the trial or the penalties, if given.

120 Ibid. 121 Personal interview with Jamila Chowdhury; Associate Professor; Department of Law, University of Dhaka. 122 Section 345 of the Criminal Procedure Code of 1890 provides for certain offences under the Penal Code of 1860 being compoundable. However, such compoundable offences are divided into those which may be compoundable by the parties themselves under Section 345(1) by virtue of the fact that they are so delegated in the table appended to the Section, and those which are listed in the table but can only be compounded “with the permission of the Court before which any prosecution for such offence is pending” (Section 345(2)). 123 Chowdhury interview. 124 Ibid. 125 Section 2 (8) and 2(9), DVPP Act. 53 The DVPP Act tacitly emphasizes the continuity of the marital relationship in order for the Court to extend jurisdiction over the matter. Courts have refrained, in several cases, from continuing to deal with allegations of domestic violence brought before it where the parties have been divorced. The fact that perpetrators of domestic violence and their attorneys can easily pronounce divorce and thereby avoid sanctions under the DVPP Act is so well known that in some cases even when divorce is not allowed, such a strategy is nevertheless attempted. For example: Rani Biswas married Manik in 2010 in a Hindu ceremony. She gave birth to a son, who died. After his death her husband and mother-in-law began to torture her physically. At one point, they drove her out of the house, and she had to take shelter at a neighbor’s home. A PHR legal counselor helped her file a case at the magistrate’s court. The husband contended that he had divorced his wife by affidavit. The court opined that, as there is no provision for divorce under the Hindu law of Bangladesh, the applicant was entitled to relief under the DVPP Act. The court ordered that until the application was disposed of, the husband would arrange for a peaceful and secure separate residence and food. In addition, he was ordered to pay BDT 3,000/per month for maintenance through the EO. The relevant police officer was given responsibility to ensure the security of the applicant.126 From the case records she studied, Yasmeen found that two applications, both filed before the Metropolitan Magistrate Court of Khulna, were dismissed by the court on the ground that the applicant, being divorced, could not bring an application under the DVPP Act against the former husband. This is because the definition of domestic violence given in Section 3 of the Act bars a divorced woman from filing an application against a former husband.127 It may be not possible to give any order of shared residence, in the case of divorce, since the law is unclear as to how such a residence order would be enforced or whether the order would be relevant once a marriage has ended. However, paying attention to the phrase contained in Section 2(8) in the definition of “family,” which includes those who have at any point of time lived together, the court could widen its jurisdiction to include a once-married wife. Protection orders also might have no consequence upon divorce. However, in an interview, an EO told us how a divorced wife was being harassed, stalked and threatened by her former husband, and there is confusion as to whether a protection order can be used in such situations.

5.4. DV Laws in Neighboring Countries In analyzing shortcomings of the DVPP Act, as well as its positive features, a brief comparison to domestic violence legislation of other South Asian jurisdictions is useful. The purpose of such an appraisal is to ferret out best practices within countries whose social context is akin to Bangladesh and therefore relevant. (For a more in-depth study of comparative domestic violence laws in neighboring Asian countries, see Yasmeen’s study cited below.128)

The Indian law on domestic violence, the Protection of Women from Domestic Violence Act of 2005, appears in certain cases to be more liberal, including relationships in the nature of marriage (Section

126 CR 351.2014; Cognizance Court of Senior Judicial Magistrate, Monirampur, Jessore. 127 Yasmeen, (2015), 19. 128 For more details about the domestic violence laws of Bangladesh, India and Pakistan see Yasmeen, (2015), 16. 54 2(g)) so that in effect, domestic relationships are not restricted to those persons related by affinity (shared characteristics) or blood. Both the Bangladeshi and Indian laws cover sisters, widows, mothers, daughters, daughters-in-law and so forth and recognize the right of residence of the woman or any other survivor.129 The Indian Act emphasizes protection of women in particular, which is clear from the title of the Act: Protection of Women Against Domestic Violence Act of 2005. It also deals with violence against children, since it mentions that the aggrieved person may be a child in Section 18(c).130 In Nepal, 131 laws define “domestic violence” as any form of physical, mental, sexual and economic abuse perpetrated by any person on another person with whom he has a family relationship. In Bangladeshi Law, domestic violence is defined as physical abuse, psychological abuse, sexual abuse or economic abuse against a woman or a child of a family by any other person of that family with whom the survivor is, or has been, in a family relationship.

Under Indian law, the scope of who may be considered to be an opposite party or respondent is limited to “any adult male person who is, or has been, in a domestic relationship with the aggrieved person,” and it includes also a relative of the husband or the male partner. Thus, an aggrieved person cannot apply for relief for violence committed by a female relative of hers such as her mother, step-mother, sister and others,132 which can and is done under the Bangladeshi law. Two important provisions which are absent in the Bangladeshi law but present in the Indian law are Section 14, dealing with “counseling” and Section 15, dealing with “assistance of welfare expert.” The DVPP Act encourages attempts to arrive at a compromise or a settlement but none of the actors brokering or mediating such settlements, including the judges, are trained in the family counseling methods that might be needed. It may also be immensely important for the court to be able to refer perpetrators of violence or couples to marital counseling in order to ensure that the solution is permanent. In a personal interview, Honorable Justice Imman Ali said that the “thrust of the Act should have been counselling.” Unlike the Bangladeshi Act, where the involvement of the police has been intentionally kept at a minimum, in Nepal, if the situation so requires, the aggrieved person and his/her dependents shall be provided with immediate protection with the help of the police force.133 The Nepali Act also speaks of the establishment of Service Centres134 and clearly specifies the financial responsibilities of the government for funding them.

In conclusion, The DVPP Act, 2010 was passed years after similar acts in neighboring countries (e.g., India (2005), Nepal (2009) with similar socio-cultural realities. This has enabled Bangladesh to incorporate what its legislators believe were the strongest and most practical aspects of domestic violence legislation. However, after more than five years of implementation of the DVPP Act, this Study finds many shortcomings in the Act which need to be addressed (see Chapter 7), and recommends further review and comparative analysis of neighboring countries’ domestic violence laws, including the Pakistani Domestic Violence Prevention and Protection Act of 2012. The Legislature may consider

129 See Section 10 of DVPP Act, 2010 and Section 17 of PWDVA, 2005. 130 For more see Yasmeen, (2015). 131 The Domestic Violence (Crime and Punishment) Act, 2008 of Nepal. 132 Section 2(q) of the POWADV, 2005. 133 Section 4(7) of the Domestic Violence (Crime and Punishment) Act, 2008 of Nepal. 134 Section 10 of the above. 55 reforms to the Bangladeshi legislation on domestic violence by inclusion of certain provisions contained in the abovementioned laws such as inclusion of a more expansive and clear definition of what a family consists of, making provision for counseling and welfare experts, providing for immediate protection from violence and increasing the States overall financial involvement.

56 57 Chapter Six

56 57 Current Status of the DVPP Act 2010

6.1. NGOs Instrumental in Case Filings

It has been a little more than five years since the Jatiyo Sangshad—the House of the Nation—enacted the Domestic Violence (Prevention and Protection) Act of 2010. In 2011 the first case was taken to court by BNWLA in Dhaka (outside the PHR area). Our work shows that the majority of cases filed under the DVPP Act in our research area were brought to court with the assistance of different NGOs; very few cases were filed privately.

Table: DV Case Filing Status in PHR and Non-PHR Upazilas (January 2012–September 2016)

District Cases Filed in PHR Upazila Cases Filed in Non-PHR Upazila Bogra 53 (3 Upazilas) 10 (9 Upazilas) Jessore 41 (1) 206 (7) Chittagong 10 (1) 16 (13) Sylhet 68 (2) 51 (11) Barguna 4 (1) 0 (5) Dinajpur 22 (2) 6 (12) 198 cases filed in 9 PHR Upazilas 289 cases filed in 57 non-PHR Upazilas

Source: PHR and Upazila Women Affairs Officer and Judicial Magistrate court of respective district and Upazila

These numbers show that the intervention of programs such as PHR is contributing to the implementation of the Act, since the number of cases filed in the PHR working areas is almost three times that of cases filed in areas in which PHR does not work. As we learned in our meetings with judges and lawyers, lawyers are not interested in pursuing cases under the DVPP Act on their own, since pursuing such cases is not lucrative, as cases must be concluded in three months. As of March 2013, in the then-seven , a total of 102 cases under the DVPP Act had been filed.135 The table below shows that over 400 cases have been taken to court in four years under the DVPP Act with the assistance of different NGOs:

Table: DV Cases Filed with NGO assistance, 2010–2014 NGO No. of Cases Ain O Shalish Kendra (ASK) 9 BLAST 80 Bangladesh Manabadhikar Bastabayon Sangtha (BMBS) 194 PHR 146 Total 429 Source: Meeting on “Expanding the Scope for Obtaining Justice in the Prevention of Violence Against Women” arranged by the Naripakkha and Bangladesh Manobadhikar Bastabayon Sangtha, Nov. 28, 2015

135 BNWLA, (2013), 28. 58 There were about 429 cases under the DVPP Act facilitated by several leading NGOs during this period. These NGOs are at the forefront of providing direct legal assistance to women and children although there are other similar organizations that help women access the justice system. One such organization is the Bangladesh Manobadhikar Bastabayon Sangstha. The table below shows the number of domestic violence cases which it facilitated before different courts and case status.

Table: Manobadhikar Bastabayon Sangstha Status of Cases Under the DVPP Act, 2011–2015

Resolved Pending Division Compromise Judgment Total Dhaka 15 9 2 15 4 Chittagong 43 26 8 34 9 Rajshahi 23 13 4 17 6 Barishal 8 6 0 6 2 Khulna 65 36 11 47 18 Rangpur 13 6 0 6 7 Sylhet 17 9 1 10 7 194 105 26 131 63 Source: BMBS, Dhaka

It is close to impossible to determine the actual number of DV-related cases filed in all the District courts, since information regarding criminal cases received by the authorities is not categorized by the different laws they were filed under. The somewhat scattered information we have, however, tends to show the small numbers of cases which have come before the courts under the Act of 2010. It appears that out of the 64 Districts of Bangladesh, in several Districts not a single case has been filed in the relevant courts since the Act’s enactment. This includes the magistrate courts of Netrokona, Cox’s Bazar, Hobiganj, Chandpur, Nilphamari and Madaripur. In Manikganj only one case was filed under Sections 13, 14, 15 and 16 of the DVPP Act by a daughter-in-law against her father- and mother-in-law, but it was dismissed.136 In Faridpur a single case was filed, which was later withdrawn. In there have been three cases since 2013: in one, a protection order was given and the others are pending. In Dinajpur there have been a total of 22 cases filed since 2011. All but one have been disposed and in 15 of the cases, protection orders given. Protection orders under Section 30 were breached in two cases in Dinajpur: of these cases, one is pending while the other has been compounded. Five of the 22 cases have been dismissed for non-appearance of the applicant and one due to divorce after filing. In the Chittagong Metropolitan area, where there are 16 police stations, 30 cases of domestic violence have been filed under the Act. Of these, two have been compromised, one withdrawn, one dismissed because the case was more suitable for the family court, and the other cases are pending. In contrast, in Dhaka, the total number of cases from 2000 through December of 2015 is only 14.137

136 CR 348/15, Manikganj Magistrate Court. 137 Unofficial information received from magistrates in different districts. 59 The National Human Rights Commission of Bangladesh received a total of 60 complaints of domestic violence in 2014, of which 39 were pending while 21 had been disposed at the time of publication of its annual report in 2014.138 In 2015, 40 cases of domestic violence came before the commission; 13 have been disposed and 27 are pending.139 Our field work has shown that access to assistance is a very important factor when it comes to survivors deciding to take action against domestic violence. Lack of awareness of the law and what remedies are available is endemic in Bangladesh at all levels. A magistrate in Dhaka said that the reason so few cases are instituted under the DVPP Act is that even though domestic violence is rampant, lawyers are unwilling to pursue cases under the Act, since the cases are so short. In addition, clients want the immediate arrest of the abuser, which is not possible under this particular law.140

6.2. Case Histories: DVPP Act in Action

Detailed examination of about 60 cases filed through the PHR Program show certain similarities: the majority of the cases are filed by the wife against the husband and the in-laws. There is overwhelming evidence that in most cases the violence is physical, accompanied by verbal abuse, often with the wife and children being driven out of the shared residence. Dowry demands are the most common cause of the violence. After filing, applicants overwhelmingly apply for withdrawal of the cases under Section 248 of the CrPC, citing amicable settlement of the issue. The major reason for case settlement is the husband’s family’s desire to settle the case out of court to avoid public shame and defamation.

6.2.1. Withdrawal of Cases:

In some cases, the DVPP Act has been used successfully to recover property and goods of the applicant which remained with the opposite party, after which the case is withdrawn. Here is a case study that exemplifies this outcome: Zarjina Khatoon and Md. Shuhag141 of Sylhet were married in March 2012, after which she moved, as custom dictated, to her husband’s residence. From the very beginning Shuhag had been demanding money from Zarjina, to go abroad. When she failed to pay the amount demanded, he started to torture her physically and mentally. At the same time, Shuhag, who earned a livelihood as a mason, began an adulterous relationship with a woman whom he later married. The torture on the complainant increased, and he stopped paying any sort of maintenance. Consequently, Zarjina was compelled in September of 2012 to leave for her parental home. Zarjina filed an application under Section 15(1) (e) of the DVPP Act asking for the court’s help, using the Upazila Women Affairs Officer to recover goods and other personal items given at the time of marriage by her parents amounting to almost BDT 100,000. The dispute was settled amicably after the goods were recovered by the enforcement officer of South Surma Upazila and handed over to the satisfaction of the applicant. The court granted her request that the case be withdrawn.

138 JAMAKON Annual Report (2014). National Human Rights Commission (JAMAKON) Bangladesh, Dhaka. 139 Unofficial information pending publication of JAMAKON Annual Report of 2015 with permission of Kazi Reazul Hoque; Full Time Member, NHRC. 140 Interview with Hasibul Haque, Metropolitan, Magistrate, Dhaka Court No.16 by research assistant. 141 CR 09/2014; 1st Court of Senior Judicial Magistrate, Osmaninagar, Sylhet. 60 In a number of cases, the husband’s second marriage caused the conflict and violence. On a reading of several of the cases, despite the applicant’s plea of withdrawal on the ground that the conflict has been amicably settled, the facts suggested the possibility of future domestic violence. Here is an example of such a withdrawal: Rabeya was married to Shabbir142 in 2006 and she gave birth to three daughters, one after the other, which angered Shabbir. He began to torture her mentally and verbally, to force Rabeya to consent to his taking another wife. At one point, after tremendous verbal abuse, he drove her and their children out of their shared residence. Rabeya took shelter with her parents. Shabbir did not pay any maintenance for his wife or children. Rabeya filed an application for order of residence for herself and her daughters as well for an order for maintenance. Rabeya stated in her application that she wished to continue her conjugal life. After a few days, Rabeya applied for withdrawal of the case under Section 248 of the CrPC on the ground that the dispute has been settled by amicably. The court allowed such withdrawal. This case illustrates the continuing preference in families in Bangladesh for a male child, as well as the fact that mental and verbal abuse can successfully be used to access the courts, as such abuse falls within the definition of domestic violence under the DVPP Act. It also illustrates a fundamental uncertainty: did anything change for this family?

6.2.2. Protection Order to End Harassment

The DVPP Act has, in many cases, provided avenues for relief where earlier there were none. There are many cases where the only relief that a survivor wants is to be free of harassment without going to the hassle of seeking criminal punishment for the perpetrator. With the inclusion of protection orders as a remedy under the DVPP Act, many survivors have had solutions which suit their specific problems. Maliha’s case is a good example of this: Maliha is educated and works in a private firm. Her mother and father are alleged to have been harassing and torturing her in various ways. They allegedly prevent her from going out of the house and using her mobile phone and they often physically and mentally abuse and insult her, including making sexually derogatory and abusive comments. In a bid to be free of such abuse, Maliha got a job in another city but her parents beat her up severely to prevent her from taking the job. She somehow escaped and came to the aforementioned city and went to a hospital for treatment of injuries sustained at the hands of her parents. She started working while staying in a hostel in the city. Her father, with the abetment of her mother, tried to force her to give up her job and return to them and has gone to her hostel as well as her place of work to intimidate and harass her. Her father and mother also physically assaulted her, for which she had to be again treated in the hospital. The applicant, with the assistance of ASK, asked for an interim protection order as well as reliefs under Section 15, 16 or 17 as applicable. The court gave an exparte interim protection order preventing her parents from committing any sort domestic violence and ordered them to refrain from going to Maliha’s place of residence and work.143 As these cases show, the DVPP Act does seem to be bringing some relief to survivors, in cases where it is deployed. But because this so rarely occurs without NGO assistance, Bangladesh’s main challenge in the next few years will be to make more and more of its people aware of the law, while encouraging the kind of cultural shift that will ultimately make domestic violence less common.

142 CR 75/2012; Senior Judicial Magistrate 2nd Court, Sylhet. 143 CR 230/2014 Dhaka. 61 62 63 Chapter Seven

62 63 Recommendations

The home is equated with sanctuary, a place where we seek love, safety, security and shelter. But it is also a place that can imperil lives and breed some of the most drastic forms of violence, especially against women and girls.144 The gravity of domestic violence lies often in the power imbalance and secrecy involved as well as the easy access to the victim and the possibility of repetition. The enactment of Bangladesh’s Domestic Violence (Protection and Prevention) Act of 2010 legally recognizes violence within the home as a violation of human rights. The law essentially performs a normative function, where it indicates what behavior is unacceptable and backs this norm up with state sanctions.145

Despite the many laws that exist, lack of implementation and enforcement produces disappointing results; women and children continue to be threatened within their homes. As with similar laws, the DVPP Act is hampered by factors like lack of monitoring and lack of awareness. It is crucial that women’s rights and human rights groups monitor how the law is being applied and why domestic violence continues to be the practice rather than the exception. As Rangita de Silva de Alwis writes:

although women’s groups actively participate in legal reform and the monitoring of the legislative process, there remains a gap between laws on the book and law in action and women’s groups are marginalized from monitoring the implementation of the law. In order to fulfill the potential of the law, rights must be claimed and rights violations redressed through implementation of laws. The lack of the enforcement of laws is a flaw that affects the effectiveness of domestic violence laws in Asia.146 There is work to be done.

7.1. Recommendations To conclude our study, we would like to underscore some of the shortcomings of the DVPP Act as well as review some reasons that the law has yet to achieve its purpose. Here are our recommendations for Bangladesh:

7.1.1. Raise Awareness: Awareness about the law must be increased among judges, practitioners, enforcement officers and service providers, as well as among survivors and women in general. Judges participating in our Experience Sharing Programs on the DVPP Act emphasized that they needed to be more oriented in and sensitized about the law. They said that given that the preamble of the DVPP Act reiterates the commitment of the government to improve the condition of women and children by empowering them, the Judicial Administration Training Institute of Bangladesh has adopted the DVPP Act as part of its Training Module. The same applies to the Bar, since lawyers need to be made conversant with the law as well as aware of which court will provide their clients the appropriate, and maximum, benefit.

144 UNICEF, (2000), 3. 145 Lawyers Collective Women’s Rights Initiative, (2013), 7. 146 de Silva de Alwis, Rangita, (2012), 231. 64 Although the Directorate of women affairs is providing ongoing training to enforcement officers, the training needs to be not only more in-depth but also given in a way to ensure sustainability of the services delivered. Training of the police force was given, we found, only in places where the PHR or similar programs were operating. There needs to be extensive training, awareness-building, sensitization and monitoring of the police by the government. The same goes for other service providers, such as personnel at shelter and medical facilities, which need to incorporate more counselling and specialized training to deal with DV survivors.

7.1.2. Increase Community Investment: There continues to be tolerance of violence within the home. Patriarchal socialization processes turn a blind eye to woman-unfriendly practices such as child marriage, dowry demands and domestic violence. Enormous effort is required at the cultural and social levels, as most forms of violence against women are still viewed by a majority of the population as “a private matter” to be endured, and most certainly not a crime.147 Programs like PHR, which have taken an integrated and comprehensive approach to socio- cultural change regarding domestic violence, have proven successful in identifying survivors of domestic violence and providing them with both preventive and protective responses. The PHR approach includes mass awareness and educational campaigns, advocacy to change legislation, capacity development of key stakeholders, doorstep legal counseling, psycho-social services and livelihood options for survivors.

NGOs and governmental organizations are trying to engage communities to address violence against women and children. At the government level, each Union Parishad has a Standing Committee on Resolution of Family Conflict and Women and Children Welfare, meant to deal with issues of domestic violence and child marriages. Standing Committees, led by an elected councilor, require five to seven members and can co-opt citizens.148 Most of these committees are in practice largely inactive.149 NGOs have many projects trying to activate committees situated at the Union Parishad level, such as the Nari Nirjatan Nirodh (Women Repression Prevention) Committees.150

Such community-level engagement has not, however, so far impacted a large portion of the population (only an estimated five million of Bangladesh’s 150 million inhabitants) nor changed certain engrained beliefs beyond program intervention areas. One example of unchanging attitudes is the widely held perception that women are somehow responsible for the violence committed against them.

7.1.3. Improve Access to Justice: Closely connected with the issue of lack of awareness and knowledge about the law is the difficulty faced by survivors in taking any sort of action. Domestic violence occurs inside the closed confines of homes where, especially in rural Bangladesh, women and children lack agency. Women and child victims of

147 Oxfam, (2004), 7. 148 See Section 45 of the Local Government (Union Parishad) Act, 2009 and Unnayan Shamannay (US) (2014).Improving Services: The Role of Union Parishad Standing Committees, Dhaka, October. 149 Personal interview with Professor Salahuddin Aminuzzaman; Department of Public Administration, University of Dhaka and an expert on public administration 150 See ActionAid Bangladesh, (2009), Sharing development practices to create pace for critical learning and discussion, Learning Document Series-3, Dhaka, 45, http://www.actionaid.org/sites/files/actionaid/learning_document_series_1-5.pdf. 65 ongoing violence in public spaces have difficulty getting justice. For rural women and children abused by their own families, it is even more challenging to resist and to access remedies. For most, accessing agencies outside of their villages or communities is close to impossible. Women traditionally prefer the village Shalish for settlement of their problems. However, in many cases the village Shalish is beset with problems such as gender bias, lack of awareness of the law and human rights, and corruption.151 For most villagers, their second preference to settle disputes is the local administration such as Union Parishad or the Village Courts152 where applicable. Formal courts, which are situated generally at the District level, are usually the last port of call. The practical hindrances to accessing the formal system are almost insurmountable for most victims of family violence. It is therefore essential that assistance is available close to home. GoB can provide fieldworkers to get this work done at the grassroots level. Health and family planning workers from the Ministry of Health and Family Planning, social workers from the Ministry of Social Welfare, and women volunteer organizations such as those registered under the Department of Women Affairs and MoWCA can identify incidents of domestic violence and act as referral agents. Under the PHR Program, social workers are on the frontline in each community, providing psycho- social counseling and paralegal counseling to survivors as well as making referrals to other service providers.153 These social workers (SWs) raise awareness and inspire social change through frequent courtyard meetings, games, community radio, theater for development and other events.154 Each SW is responsible for one Union, encompassing 25 to 50 villages. In a typical month, one SW might handle 40 cases, working six days a week;155 these workers deliver critical directional support at the doorstep, often as first responders.

7.1.4. Provide Separate Courts to Hear DV Cases: This may involve giving a particular magistrate’s court sole responsibility for cases under the DVPP Act in a particular District. Suggestions have been made for family courts to be given jurisdiction, but doing so may limit the scope of relief that may be available, based on the religious laws applicable to the parties. Trying DV cases in a separate court will reduce the time to process the cases, given the backlog of cases in the magistrate and metropolitan courts. However, the magistrate court environment is not particularly woman- and child-friendly, unlike the family court. A shift in focus could change that.

7.1.5. Relieve Economic Insecurity: Only when a woman reaches a stage of utter helplessness does she ask for help. The vast majority of survivors of violence lack awareness about how to access the law to prevent domestic violence. The primary practical barriers to accessing assistance are poverty and lack of economic and social security

151 See Transparency International, (2007), 134. 152 The Village Courts Act of 2006 (Gram Adalat Ain 2006) allows the members of the Union Parishad to dispense justice in certain petty criminal and civil matters as per the schedule to the Act. Offences under the DVPP Act are not within its jurisdiction. 153 Plan International Bangladesh, PHR brochure. 154 Weekly courtyard meetings of one to two hours include about 25 participants; these participants may be adult males, male adolescents, female adolescents, both male and female adults (husbands and wives), young mothers and other females. PHR brochure. 155 Barr, Sharmin, & Islam, (2014), 12–13. 66 as well as dependence on the perpetrator. Simply stated, the majority of women in Bangladesh cannot afford leave an environment in which domestic violence exist. The cycle of deprivation starts from birth for the majority of women, since they are considered to be transient visitors in their natal families. The dowry system ensures that the birth of a girl is burdensome. Women often fail to demand their (unequal) share of paternal property because they want to be sure that they can return to their parents’ homes in case of trouble in their marriages. Fear of divorce, deprivation and destitution are realistic concerns which defeat the purpose of the enactment of the DVPP Act. These concerns play

a significant role in increasing the vulnerability of women, who continue to remain in violent relationships for fear of dispossession and destitution. In fact, it was observed in many cases that the first thing that happened to women filing complaints under criminal law was that they were thrown out of their own home, according to de Silva de Alwis.156 A wife accessing any help, especially in the formal court system, is very often immediately divorced by the husband, which leads to certain destitution and deprivation. Upon divorce, the woman is entitled to only her dower, which usually consists of a small sum of money and maintenance for the three months of the iddat157 period. There is no concept of community of property158 in Bangladesh; women’s unremunerated activities within the home are unacknowledged. This means that in the event of divorce she ends up destitute. In order that laws such as the DVPP Act have practical consequences for women and children there has to be serious consideration given to the factors that force women to stay in abusive marriages.

7.1.6. Provide Immediate Access to Services: Due to poverty, patriarchy, lack of awareness and economic and social insecurity, women and children have limited access to help and to justice. Programs like PHR which provide immediate, sustainable, doorstep services at the grassroots level should be replicated on a widespread level. Every potential victim should have ready access to an enforcement officer.

7.1.7. Bolster Support Services and Social Safety Nets: There is lack of adequate support services and social safety nets upon which women and children can rely. If a woman is dispossessed along with her children, as has been seen in almost all the cases studied, the only option she has is to return to her paternal home, where there is, more often than not, a scarcity of resources. A vicious cycle of deprivation hounds these survivors of violence, which gives them bleak prospects of a violence-free life. Limited government and NGO-run shelters, One Stop Crisis Centers and Cells for women do exist, providing medical, psycho-social and legal assistance. However, the overall quality of services provided in the shelters is considered very poor and some survivors are held in detention for short periods.159 State-run social assistance programs are available but lack of

156 (2012), 227. 157 Under Islamic law, iddat is a period of waiting for a woman, after the death of or divorce from her husband, during which time she cannot remarry. The main purpose is to determine the paternity of any child which may be in utero. 158 Community property is any property or goods acquired during a marriage; it belongs to both husband and wife and is divided when the marriage ends in divorce, death, etc. 159 Independent Advisory Group on Country Information, (2014). 67 awareness, coverage and misuse of funds remains a problem.160 The necessary government support for implementation of the law is insufficient, including lack of logistical support for enforcement officers. Severe budgetary restrictions, poor multi-agency coordination, absence of training, and at times, lack of political will constrain the implementation of these laws.161 The quantity and quality of services such as shelter homes and medical facilities have to be increased and improved. Access to such services must be made easier. Awareness regarding the need for specialized handling and treatment of survivors of domestic violence must be increased. Best practices regarding pragmatic steps to ensure safe shelter upon demand, such as introducing the concept of “community shelters” under the PHR program, should be replicated by local government institutions.

7.1.8. Collect Data: In Bangladesh, there is a lack of coordination among the different agencies that deal with DV and its effects, governmental as well as NGO, and also a paucity of information. Despite the promises of a national data base on violence against women, there appears to be no professional attempt to collect and collate data on different types of violence. One of the major limitations of our study, for example, was the lack of specific data on domestic violence cases. Since the law is comparatively new, such information collection should have been built into the system, since neither the courts, the National Legal Aid Services Organization, the Women’s Directorate under the Ministry nor any other authority could provide specific official information about the number of cases of domestic violence, or the number of cases filed under the Act. General Recommendation No. 12 of the Committee on the Elimination of Discrimination Against Women emphasized the importance of statistical data on the incidence of violence of all kinds against women.162 Consistent and formal data collection and a continuous monitoring of the successes or failures of the protections offered by the law are essential to evaluate the effect the law is having on family violence. Such information is essential for the state to understand how to better implement its laws against domestic violence and the amendments that might be required to strengthen them, as well as allow it to rethink its financial and logistical commitments to combat such violence. Coordinated and disaggregated data regarding DV must be collected, validated and made easily available.

7.1.9. Address DV Against Children: The DVPP Act refers to the child primarily in the context of the woman and not as a separate entity. In certain sections the remedy available refers to the child, but only as the offspring of the survivor. The Act does allow a child to apply for relief. However, although adult daughters have instituted cases against parents in a few instances, no cases were found, in our research, where the aggrieved has been a child, who has either directly or through an organization filed a case. In only one case, an infant daughter was included in an application with her mother seeking residence and maintenance. It is impractical to expect a child or anyone on her/his behalf to go to court in the context of Bangladeshi society to file any case against a parent or other family member unless it is an authority entrusted with social protection.

160 Ibid. 161 de silva de Alwis, (2012), 232. 162 General Recommendation No. 12 (eighth session, 1989). 68 Despite both official recognition and increasing awareness of the existence of sexual and other types of abuse on children within the family, most aid programs continue to focus on the more visible forms of abuse against children such as abuse on street children, child prostitutes and the children of sex workers. But there are some rays of hope. Several rights organizations have been dealing with the issue of sexual abuse and exploitation of children within the family. For instance, Breaking the Silence, an NGO, has been working to raise awareness of child abuse at different tiers of society.163 GoB is involved too: the Children’s Act of 2013164 provides for punishment of certain offences committed against a child by any person having responsibility or care of the child. Under Section 70 of this Act, if any care taker causes a child to be hurt, oppressed, neglected, abandoned, deserted in a vulnerable condition etc. from which act physical and/or mental harm is caused to such child, such person shall be deemed to have committed an offense under the Act. For such offence he/she may be punished with imprisonment not exceeding 5 (five) years, or fine not exceeding 1 (one) lac taka or both. The Penal Code of 1860 also deals with offences committed against the human body, including that of a child. Section 317 of the Penal Code punishes parents of a child under 12 years with imprisonment up to seven years, or a fine, or both, for exposure and abandonment. The Women and Children Repression Prevention Act of 2000 (Section 10) also deals with the sexual abuse or repression of children with punishment up to ten years but not less than two years, and/or a fine. Despite these strict punishments, however, child abuse, repression and violence is persistent. Children in Bangladesh are generally considered without agency. The rights of the child, separate from its parents, is an alien concept. Corporal punishment was considered (and unfortunately still is in many cases) a legitimate means of disciplining students in educational institutions such as schools and madrassas. In January of 2011, Bangladesh’s High Court declared all types of corporal punishment in schools “illegal and unconstitutional.” Although corporal punishment is considered to be almost the “right” of parents/guardians, sexual abuse within the family, on the other hand, is rarely, if ever, acknowledged. The power of adults within the family is absolute and this fact, in combination with social mores which emphasize the need to cover up any source of “shame” …, mean that children who are caught in situations of physical or mental abuse will be coerced into silence by not only the abusing adults, but also those who are supposed to be their protectors …. As incidents that might involve public condemnation have an impact on other family members as well as the victim, it increases the pressure to cover up such violations, according to the Advocacy for the Inclusion of Child Rights in the Policy Agenda of Bangladesh project.165 Sexual abuse within the home is insufficiently addressed by the 2002 National Plan of Action against the Sexual Abuse and Exploitation of Children including Trafficking (NPA SAECT),166 as well as by the DVPP Act. The Act provides no strategy as to how child abuse within the family can be identified.

163 See Shishu Shurokkhay Amra and Save the Children-Sweden Denmark, (2009), 39. 164 Act No.4 of 2013. 165 Ghuznavi, Ruby, Ghuznavi, Farah, & Rahman, Saira (eds.), (2012), 12. 166 Ibid, 71. 69 A starting place might be to ask school teachers and medical practitioners help identify child abuse while at the same time affording protective services to the victimized child. Children come within the purview of the DVPP Act, but the Act has failed to provide practical assistance and ensure their access to services. Courts must attempt to proactively remove children from homes where the child is abused or where domestic violence is occurring, in order to help break the cycle of violence.

7.1.10. Provide Counseling: The DVPP Act does not address the need for formal professional help or counselling at any stage of assistance for DV survivors or perpetrators. The draft law on prevention of domestic violence by the Bangladesh Law Commission included a provision related to counseling167; however, this provision was not included in the final version of the Act, given that the GoB did not have sufficient resources at that time to subsidize counseling services. In the DVPP Act, however, apart from requiring the enforcement officer under Section 6(f) to maintain a list of all psycho-social counseling services along with other service providers, there is no mention of the need or the opportunity to refer persons, who may include the woman and/or her husband, to any sort of counseling. The importance of counseling seems to be acknowledged with the creation of the National Trauma Counseling center under the Multi- Sectoral Programme on Violence Against Women by MoWCA, but this help is limited to the office of the Department of Women’s Affairs in Dhaka.

7.1.11. Refine Legal Definitions and Language: In the Act’s language, the concepts of “aggrieved person,” “family,” “domestic relationships,” and so forth should be made more generous. In the words of de Silva de Alwis, in “order to effectively fight domestic violence, the law must cover an expanded notion of the domestic realm.”168

Our investigation shows that in many cases courts have to refrain from dealing with an allegation of domestic violence because the aggrieved person has been divorced and is no longer considered part of a family. Magistrates told us how they have tried to assist women who have been victimized by their husbands and then divorced after a case has been filed. A magistrate in Chittagong explained:

A Muslim husband … in a case under the DVPP Act can file for divorce, but under the law such divorce will not be effective until after 90 days.…in cases I have ordered the husband to pay dower and maintenance by telling him that his wife has the right to go to family court to get her dues and he might as well pay up to avoid coming to court again.

167 See The Law Commission (2005). The “proposed” Section 11 stated: “(1) The Court may, in any proceeding relating to domestic violence, only when it is satisfied from the facts revealed in the petition of complaint, that instead of or in addition to issuing a protection order, one or more of the following orders may be made, then it can make one or more of the following orders: - (a) refer the parties to a conciliatory body; (b) refer one or more of the parties to a rehabilitation therapy, psychotherapy or other suitable therapeutic body or bodies with such terms of reference as it adjudges proper in the circumstances of the case. (2) When considering any question relating to the making of an order under sub-Section (1) the Court may, whenever it is practicable, take the advice of a social welfare officer or some other professional expert in the field of domestic violence of the Court’s choice. (3) In this Section “conciliatory body” includes bodies providing counseling services set up under this Act by the Department of Social Welfare of the Government of Bangladesh or such other non-governmental counselling institutions as are approved by the said Department, for purposes of this Section.” 168 de Silva de Alwis, (2012), 197. 70 All judges may not be as proactive as this one, and the protection of all women within the home must be ensured by the law itself. Many Asian countries have widened their definition of family to include persons who may traditionally not be considered to be members.169 Having these definitions changed on paper may not establish a societal norm, but it does afford needed legal protection.170

The proposed Law Commission Report had also recommended an expanded and more inclusive concept of who could be considered an aggrieved person under the Act. The report pointed out that “domestic violence is not confined to married couples only, but extends to cover other couples who are jointly living together. It may also cover men and women other than husbands and wives, such as parents, brothers, sisters.”171 Reading the Bangladeshi DVPP Act closely, it appears that by changing the phrase from “when they are related by consanguinity or marriage” (Section 2(8)) to “when they are or were” and in by changing “relationship between two persons who are related by consanguinity or marriage” (Section 2(9)) to “relationship between two persons who are or were related by consanguinity or marriage or a relationship akin to marriage,” divorced women as well as women in non-formal relationships will be entitled to certain remedies under the law.

The Appellate Division of the Supreme Court of Bangladesh has helped establish the precedent that courts should lean towards the presumption of the existence of a valid marriage between the parties if the facts so support. Thus, magistrates dealing with cases of domestic violence are required to take into consideration that even in the case of live-in relationships, where there is an absence of any documentary evidence proving the marriage, the presumption should be towards the existence of marriage.172 The applicant should therefore be entitled under the DVPP Act to suitable remedies if the allegation is proved. Justice Sinha said that when a woman lives for a number of years in close association with a man and their children, who are acknowledged by the man as born to him (and relations and persons of the village treated them as such), there is a presumption of legitimacy. In an earlier case involving Hindu parties, the Appellate Court had also held that if a marriage in fact has been proved, marriage in law must be presumed.173

7.1.12. Clarify Offences and Sanctions: Many of the new laws, such as the Indian and Bangladeshi domestic violence laws, provide a mix of criminal and civil sanctions.174 The DVPP Act (Section 30) of 2010 provides for imprisonment and/or fine if (and this is clearly articulated) there is a breach of protection order. The law is unclear as to what happens in case of a breach of other orders. In the vast majority of cases that we studied, the application was withdrawn by the applicant due to “amicable settlement of the issue” between the parties. In some cases, a compromise document is drawn up between the parties stating the

169 Ibid. 170 Ibid. 171 Law Commission, (2005), 2. 172 In the case of Momtaz Begum vs. Anwar Hossain (Civil Appeal No. 139 of 2003) the Appellate Court held that even in the absence of formal proof of a valid marriage, a marriage can be presumed by evidence of conduct and reputation, and the question of consummation often forms an important element in the status of valid marriage.17 BLC (AD) (2012); 2012 BLD (AD) 32. 173 Utpal Kanti Das v. Monju Rani Das (50 DLR AD 1998 47). 174 de silva de Alwis, (2012), 227. 71 conditions of the settlement. It is unclear what happens if, after withdrawal, there is a repetition of the offence. One magistrate from Patiya Court mentioned that he had adjourned some cases for a longer period of time in order to see whether the compromise yielded positive results. Once a case is withdrawn the court has no longer any jurisdiction in the matter.

Yasmeen points out that the Act is also silent as to what happens when there is a breach of an interim order. She says that to ensure speedy and effective enforcement of the remedies given under the DVPPA, it is important that any breach of an order under the Act becomes punishable. It would not only give higher protection to the aggrieved person; existence of such stringent provisions in the Act may also have a deterrent effect on the usual perpetrators of domestic violence.175

Women go before the court only when they have nearly reached their breaking point. Most survivors of violence, when they finally seek assistance, want tougher punishment or at least the threat of such punishment. For this reason, they, as well as lawyers, are more eager to proceed under the Women and Children Repression Prevention Act of 2000. Apparently, when men find out that the courts, under the DVPP Act, can only give orders of protection, residence or compensation, and further, that they can avoid such orders by divorcing their wives, they are simply not deterred from the commission of violence.

Nepal’s Domestic Violence (Crime and Punishment) Act, 2008, allows the arrest of the perpetrator if a complaint is lodged with the police and the perpetrator refuses to appear at the police office within 24 hours of the complaint (excluding the time of travel) for the recording of his/her statement (Section 4(4)). If necessary, force may be applied for his/her arrest. Although the Act allows reconciliation, the act of domestic violence is itself punishable (under Section 12 (1)). The appropriateness of criminal penalties should always be assessed in the context of particular cultural, social and political systems, and their impact on women’s needs for economic and social support.176

Under the Bangladeshi DVPP Act, the court may, instead of passing an order of sentence against the respondent, pass an order for him to perform various community welfare services (Section 31). Responsibility may be vested upon any institution or organization to supervise such services. The court can “pass an order to pay such portion of the income from such service, to the victim and where applicable, to her child/children or any dependents as it deems appropriate.”

The enactment of a law which criminalizes violence within the home may be considered a tremendous achievement in the lives of Bangladeshi women and children. However, there appears to be major lack of awareness of the law. A massive campaign needs to be undertaken by both governmental organizations and NGOs to underscore the fact that violence within the family is unacceptable. The strategies and programs undertaken by various agencies, such as the PHR Program, have certainly done much to advocate the law but the state has a duty to ensure sustainable measures in the absence of such projects. GOB has begun to promote the law with regular trainings of enforcement officers. The

175 Yasmeen, (2015), 42. 176 Freeman, Marsha A., (1995), 133. 72 Judicial Administrative Training Academy (JATI) has included the law within its new syllabus for future trainees. The Imam Training Academy (ITA) has committed to include the DVPP Act in its training curriculum. More could be done.

7.2. Suggested Amendments to the DVPP Act We recommend that the DVPP Act be amended in the following ways, to more effectively prevent and protect against domestic violence in Bangladesh.

7.2.1. Give the DVPP Act exclusive, overarching jurisdiction: orders or proceedings of the magistrate courts, hearing cases under the DVPP Act, may be stayed by an order of the family court if a question is pending as to the existence of the marital relationship. Unlike the family court, which has been given exclusive jurisdiction in particular family matters, the judicial magistrate has not been given similar superior jurisdiction.

7.2.2. Refine the definition of family: taking advantage of the phrase contained in Section 2(8) in the definition of “family” which includes those who have at any point of time lived together, the law can potentially include a once-married woman.

7.2.3. Confine “physical harm” under the Act to only simple hurt or minimal harm: under Section 3, physical abuse also falls within the definition of domestic violence and such abuse is defined by the Act as “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.” The types of physical violence included in the definition include hurt and injuries which may be of a grave nature. Such grievous injures should not be within the jurisdiction of the DVPP Act, where the civil remedies available are too lenient. They should be considered offences under the penal code or any other law which can ensure proportionate punishment. The Section should be appropriately amended. 7.2.4. Specify who is to undertake investigation: Section 24 of the Act provides for local investigation or inquiry on the direction of the court to ascertain the truth of an alleged incident, but fails to mention specifically who will conduct such investigation. The Rules could also contain more details as to such investigation.

7.2.5. Restructure discussion of “trial in absentia:” Section 26 needs to be reorganized so that sub- Section (2) of 26 comes first. This sub-Section provides for the issue of an arrest warrant against for non- appearance before the court or failing to appear after appearing once, despite proper notice being given. The sub-Section (1) which deals with ex parte disposal of the case in certain cases of non-appearance of the respondent should come later and be contained in sub-Section (2) of Section 26.

7.2.6. Simplify the process for realizing compensation: the Act provides for compensation in certain cases and Section 16 (10) states that such compensation may be realized according to the provisions of the Public Demands Recovery Act, 1913, which is complex and time consuming. For the purpose of giving the survivor quick remedy, the process should be simplified.

73 7.2.7. Provide for a separate fund for survivors of domestic violence: similar to other laws, such as the Human Trafficking (Prevention and Suppression) Act of 2012, the DVPP Act should spur the government to set up a fund for the immediate support of survivors.

7.2.8. Make penalties commensurate with offence: under Section 30, the offence of a breach of a protection order is punishable with imprisonment up to six months, or with fine which may extend to 10,000 Taka, or both. Repetition of any offence shall be punishable with imprisonment up to two years, or with a fine up to one lakh Taka, or both. On the other hand, under Section 32, the “punishment for false complaint” is imprisonment which may extend to one year, or with fine which may extend to 50,000 Taka, or both. Although there should be punishment for false allegations, it should not be more than that of a breach of the court’s order.

7.2.9. Provide penalties for all breaches of orders: the Act only provides for punishment of breach of a protection order and for no other breach. This is a serious weakness of the law which needs to be addressed within the law itself.

7.2.10. Provide for psycho-social counseling: the law should include provision for the court to order counseling, psychotherapy, psychoanalysis and other treatment necessary.

7.2.11. Reconsider the concept of cognizability of offences: the DVPP Act aims to ensure a violence-free domestic environment while safeguarding the family unit. However, questions have been raised as to the sagacity of making domestic violence related offences cognizable since it has been reiterated that once a family member is arrested there is little hope of the family relationship surviving. Experiences from the use/misuse of the Women and Children Repression Prevention Act of 2000 have also shown how that law has been used in cases to harass people. The DVPP Act needs to be reformed with such examples in mind.

7.2.12. Incorporate details about the recovering of goods/property/assets of the aggrieved person and post-recovery stage: Section 15 of the DVPP Act authorizes the court to order recovery of assets, goods and property belonging to the aggrieved person from the possession of the respondent with the assistance of the enforcement officer from the shared residence. However, neither the Act nor its Rules specify any details as to the funds and personnel required for such recovery. More importantly, it fails to mention where, after such recovery, the property will be stored or kept.

7.2.13. Make offences compoundable only with the permission of the court: under Section 29, offences under the DVPP Act can be compromised away. However, in domestic violence cases, there is a high probability that the violence will be repeated. The applicant may have been forced to agree to a compromise, having no other viable option and being completely dependent on the respondent for survival. Given this reality, offences under the Act should be compoundable only with the permission of the court, as under Section 345(2) of the CrPC and not otherwise.

7.2.14. Clarify terms, conditions and punishment for breach of community service orders: Section 31 introduces community service as a type of sentencing option for offenders under the Act who have

74 breached an order of protection. Such a sentencing option is not included within Section 53 of the Penal Code of 1860 as a type of punishment. Neither the DVPP Act nor the Rules clarify the conditions applicable in determining the hours of work or the punishment when such an order of community service is ignored or not completed. The terms and conditions of such community service need to be clarified since it is not a familiar concept in Bangladesh. The law also states that such service will be supervised by any institution or organization, without clarifying the nature of such supervisory duties. Additionally, the law should be amended to allow the court to make an order for the performance of such services for the breach of other orders under the Act.

7.2.15. Detail inquiry provisions in the Rules: the courts, in giving withdrawal orders, must also give orders for inquiry, to find out whether coercion or any other fear caused the withdrawal. The court may include in the order a follow up inspection and assign an enforcement officer for that purpose. More importantly, the terms of settlement must always accompany an application under Section 19 of the DVPP Act and the court should be ready to assess whether the terms of settlement reached are specific and consistent with the rights with which the aggrieved person was protected under the Act.

7.2.16. Clarify what divorce means: courts have refrained, in several cases, from continuing to deal with allegations of domestic violence where the parties have been divorced. Perpetrators of domestic violence and their attorneys know they can easily pronounce divorce and thereby avoid sanction of the court under the DVPP Act. This strategy is so prevalent that in some cases even when divorce is not allowed, it is nonetheless attempted. Given this situation, provision should be made in the DVPP Act that “compromise” will only be allowed in suitable situations with the permission of the court, which can use its judgment to decide whether compromise would be the most suitable solution.

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English Version of the Domestic Violence (Prevention and Protection) Act, 2010 [Act 58 of 2010] As a signatory state to the United Nations Convention on the Elimination of All Forms of Discrimination against Women, 1979, the Child Rights Convention, 1989 and the provisions of equal rights for women and children guaranteed in the Constitution of the People’s Republic of Bangladesh; an Act for the prevention of domestic violence, to ensure protection of women and children from domestic violence and for matters incidental thereto. WHEREAS it is expedient and necessary for the prevention of domestic violence, protection of women and children from domestic violence and for matters connected therewith or incidental thereto, being a signatory state of the United Nations Convention on the Elimination of All Forms of Discrimination against Women, 1979; the Child Rights Convention, 1989 and to establish equal rights for women and children as guaranteed in the Constitution of the People’s Republic of Bangladesh; it is hereby enacted as follows:- Chapter-One Introduction 1. Short title, extent and commencement.- (1) This Act may be called the Domestic Violence (Prevention and Protection) Act, 2010. (2) It shall come into force on the date, as the Government may, by notification in the Official Gazette, so declare. 2. Definitions.- In this Act, unless there is anything repugnant to the subject or context – (1) “Interim Protection order” means an order passed under section 13 of this Act; (2) “Shared residence” means a residence: (a) where the aggrieved person lives; (b) where the aggrieved person has at any stage lived separately or along with the respondent in a family relationship; 78 79 (c) which was owned or tenanted either jointly by the aggrieved person and the respondent, or owned or tenanted by either of them separately; (d) in which either the aggrieved person or the respondent or both jointly or separately have any right, title, interest or equity; (e) where, as a member of the family, either the aggrieved party or the respondent or both had or have any kind of title, ownership interest or equity.

(3) “Application” means a petition submitted to the court for any sort of remedy under this Act either by an aggrieved person or any other person on behalf of the aggrieved person;

(4) “Shelter home” means any registered institution or shelter with residential facilities maintained or managed by government or non-government endeavor, where the aggrieved person can stay safely on a temporary basis;

(5) “Compensation order” means an order given under section 16 of this Act; (6) “Aggrieved person” means a child or woman who is or has been or is at risk of being subjected to domestic violence, by reason of being in a family relationship, by any other member of the family;

(7) “Safe place of refuge” means any home or institution approved by the government or considered as safe for the aggrieved person by the court, maintained or managed by any person, agency or organization;

(8) “Order for Safe Custody” means an order granted under section 17 of this Act; (9) “Woman” means any woman, irrespective of age. (10) “Family” comprises of those persons who live or have, at any point of time, lived together in a shared residence, due to their being related by consanguinity or marriage or adoption or as member of a joint family;

(11) “Family relationship” means a relationship between two persons who are related by consanguinity, marriage or adoption or as members of a joint family;

(12) “Domestic Violence” means any act defined as such by section 3 of this Act; (13) “Respondent” means any person, against whom any application has been made or any remedy sought under this Act;

(14) “Enforcement Officer” means the Upazila Women Affairs officer under the control of the Department of Women Affairs or any officer appointed by the government on this behalf under section 5;

(15) “Criminal Procedure” means the Code of Criminal Procedure, 1898 (Act V of 1898); (16) “Residence order” means an order granted under section 15 of this Act; (17) “Rules” means rules framed under this Act; (18) “Child” means a person below the age of eighteen years; (19)”Protection order” means an order given under section 14 of this Act; 80 81 Chapter-Two Domestic Violence

3. Domestic violence.- For the purpose of this Act, domestic violence shall mean any act of physical abuse, psychological abuse, sexual abuse or economic harm by a person against a woman or child with whom he has a family relationship.

Explanation: For the purpose of this section-

(a) “Physical abuse”-means any act or conduct by which the life, health, security or any organ of the body of the aggrieved person is harmed or is at risk of being harmed and includes forcing such person to take part in criminal activities by intimidation, force or assault.

(b) “Psychological abuse”- shall include the following:-

(i) verbal abuse, insults, ridicule, humiliation, insults or threats or any utterance by which the aggrieved person is psychologically/mentally harmed.

(ii) harassment; or

(iii) controlling behavior, such as restrictions on mobility, communication or freedom of expression;

(c) “Sexual abuse”- that is, any conduct of a sexual nature that abuses, humiliates, degrades or otherwise violates the dignity of the victim;

(d) “Economic abuse” that includes but is not limited to:-

(i) deprivation from economic or financial rights and benefits, assets or property to which she is entitled to by virtue of any law, custom, order of a Court or proper authority or from exercising her valid rights over the aforementioned

(ii) not supplying the aggrieved person with articles of daily necessity;

(iii) depriving the aggrieved person from any property received as gift or stridhanat the time of marriage or through any other form of gift or donation or preventing her from exercising her legal rights over such property;

(iv)alienating any immovable or movable property which is under the ownership of the aggrieved person without her consent or preventing her from exercising her valid rights over such property.;

(v) depriving or prohibiting the aggrieved person from the access, use or possession over property, benefits or advantages accruing to her by virtue of the family relationship or from exercising her legal rights over them.

80 81 Chapter-Three Duties and Responsibilities of Police Officer, Enforcement Officer and Service Provider, etc.

4. Duties and responsibilities of Police Officer.-If a Police Officer obtains, by any means whatsoever, the information as to the commission of an act of domestic violence or becomes aware of such occurrence due to the fact that s(h)e is present at the place of occurrence, such officer shall inform the victim of the following- (a) of her right to remedies under this Act; (b) of the availability of medical services; (c) of the availability of the services of Enforcement Officers; (d) where applicable, of her right to free legal advice and services under the Legal Aid Services Act, 2000 (Act 6 of 2000); (e) of the means to get remedy under any other law; and (f) the performance of other duties and responsibilities prescribed by the Rules made by the government. 5. Appointment of Enforcement Officer.- (1) For the purpose of this Act, the Government may, by notification in the official gazette, appoint one or more Enforcement Officer in each upazila, thana, district or in a metropolitan area and may determine the area or areas within which an Enforcement Officer shall exercise her/his powers and functions. (2) The terms and conditions of appointment and service of Enforcement Officer shall be prescribed by the Rules. 6. Duties and responsibilities of Enforcement Officer.- (l) The Duties and Responsibilities of Enforcement Officer shall be as follows:- (a) to assist the court in the discharge of its functions under this Act; (b) to present reports to the court about occurrences of domestic violence; (c) after becoming aware of an act of domestic violence, to inform the police officer in charge of the police station within the local limits of whose jurisdiction the domestic violence is alleged to have been committed, of such occurrence; (d) on the request of the aggrieved person, to make an application to the Court for a protection order; (e) to give necessary assistance to the aggrieved person for her to obtain free legal assistance under the Legal Aid Services Act 2000 (Act 6 of 2000), and to ensure that she can take advantage of all the available facilities including making an application without cost; (f) to maintain a list of all legal aid and human rights organizations or psycho-social counseling services, shelter homes and medical facilities within the jurisdiction of the Court; 82 83 (g) to refer the aggrieved person to a safe shelter home upon her request and with her consent and to inform the Court and the police officer in charge, within the relevant jurisdiction of having done so; (h) to refer the aggrieved person, if necessary, for medical examination and to forward a copy of the medical report to the officer in charge of the relevant Police Station and the Court; (i) to ensure that the order for compensation is executed; and (j) to perform such other duties as may be prescribed by the rules. (2) The Enforcement Officer shall be under the supervision of the Court, and shall perform the duties and responsibilities imposed on him/her by the Government or by the Court under this Act. 7. Service provider and their duties and responsibilities.- (1) Subject to the provisions of this Act and the Rules framed there under, voluntary associations registered under the Societies Registration Act, 1860 (Act XXI of 1860), nonprofit companies or organization registered under the Companies Act, 1994 (Act 18 of 1994)or under the Voluntary Social Welfare Agencies (Registration and Control) Ordinance, 1961( Ordinance XLVI of 1961), non- profit organizations or institutions registered under the NGO Affairs Bureau under Foreign Donations (Voluntary Activities) Regulation Ordinance,1978 (Ordinance XLVI of 1978) and any other organization established under any law for the time being in force which includes within its objective the protection of human rights, especially the rights and interests of women and children, and which, to fulfill such objective provides legal, medical and financial aid or any other assistance and which have been recognized by the Government for the purposes of the implementation of this Act, will be deemed to be service providers for the purposes of this Act. (2) Duties and responsibilities of a service provider shall be as follows:- (a) with the consent of the aggrieved person, record the incident of domestic violence in the prescribed form and forward a copy thereof to the Court and the Enforcement Officer having competent jurisdiction; (b) arrange for medical examination of the aggrieved person and forward a copy of the medical report to the Enforcement Officer and the police station having competent jurisdiction; (c) arrange for the aggrieved person to be sent to a shelter home and to inform the nearest police station of such action; (d) perform such other duties and responsibilities as may be prescribed by the Rules. 8. Duties of shelter homes.- On the request of the aggrieved person, or on her behalf, any police officer, Enforcement Officer, service provider or any other person, the official in charge of the shelter home shall provide the aggrieved person with shelter. 9. Duties of medical service provider.- On the request of the aggrieved person, or on her behalf, any police officer, Enforcement Officer, service provider or any other person, the official in charge of the hospital, clinic or medical center shall provide medical assistance to the aggrieved person.

82 83 Chapter-Four Rights of the Aggrieved Person, Remedies, etc. 10. Right to reside in the shared home.- The aggrieved person shall, based on the existence of family relationship, have the right to live in the shared residence.

11. Application to Court.- (1) The aggrieved person or on her behalf, any police officer, Enforcement Officer, service provider or any other person, may apply for any remedy under this Act. (2) Every application under sub-section (1) shall be submitted in such form as may be prescribed by the Rules. (3) The Court, upon receipt of an application under sub-section (1) shall, within 7 (seven) working days, fix a date for hearing the aggrieved person.

12. Place of filing application.- An application under this Act may be filed in any court having jurisdiction over the following places - (a) where the applicant resides; (b) where the respondent resides; (c) where the incident of domestic violence occurred; or

(d) where the aggrieved person temporarily resides. 13. Interim protection order and issuance of notice.- (1) The Court may, upon receipt of an application under section 11, if satisfied by examining the documents submitted therewith, that the respondent has committed or has abetted the committing of any act of domestic violence or there is a possibility of such violence being committed, issue against the respondent an ex parte interim protection and may also order him to show cause, within 7(seven) working days, as to why a permanent protection order shall not be issued against him. (2) The notice may be issued by registered post, process server, and law enforcing agencies or by any other means prescribed by the Rules.

14. Protection order.- The Court may, after giving the parties an opportunity of being heard and being satisfied that domestic violence has taken place or is likely to take place, issue a protection order in favor of the aggrieved person restraining the respondent from committing the following acts, namely:- (a) committing any act of domestic violence; (b) aiding or abetting in the commission of any act of domestic violence; (c) entering the aggrieved person’s place of employment, business, or educational institution or any other place the aggrieved person habitually visits; (d) contacting the aggrieved person in person, in writing, by telephone or mobile phone, email or through any other means of communication; 84 85 (e) any act of violence upon any dependent(s) of the aggrieved person, or any relative or person who has provided assistance to her/him to protect her from domestic violence; (f) any other act cited in the protection order.

15. Residence orders.- (1) The court, on the basis of the application of the aggrieved person may issue the following residence orders, namely:- (a) restraining the respondent from residing in or visiting the shared residence or specified part thereof where the aggrieved person resides; (b) restraining the respondent from dispossessing or in any other manner disturbing the possession of the aggrieved person in the shared household; (c) if the Court is satisfied that during the continuance of the protection order, the shared residence is not safe for the aggrieved person or her children, it may, with the consent of the aggrieved person, under the supervision of the Enforcement Officer, arrange for safe shelter for her; (d) directing the respondent to secure the same level of alternative accommodation for the aggrieved person as enjoyed by her in the shared residence or to pay rent for the same, if the circumstances so require; (e) order the permitting of the aggrieved person, accompanied by the Enforcement Officer to enter the shared residence, so that the aggrieved person may collect her belongings, personal and proprietary; all types of documents such as medical, educational and professional records, papers and certificates, passport, check books, savings certificates, investment and bank records, tax documents, gold ornaments, cash money, mobile phones, household goods and any other items; (f) order the respondent to allow the continued use by the aggrieved person of a vehicle ordinarily under her use and expense. (2) If a right to exclusive occupation of a shared residence or any part thereof is granted to the aggrieved person, such order shall not affect the respondent’s title or interest to such residence. (3) If the Court has reasonable grounds to believe that for the purpose of ensuring the security of the aggrieved person, it is necessary to temporarily evict the respondent from such shared residence, it may order the temporary eviction of the respondent from such residence: Provided that such order shall be revoked, if- (a) a suitable safe shelter or safe place or alternative residence is found for the aggrieved person; or (b) if it is evident to the satisfaction of the Court that it is no longer necessary to continue the eviction order. (4) If the Court considers reasonable, it may impose any additional conditions or pass any other directions necessary for the protection of the aggrieved person, her children or any other member of her family.

84 85 (5) The Court may require the respondent to execute a bond, with or without sureties, that neither he/she nor any of his/her family members will commit any acts of domestic violence in future. (6) While passing an order under sub-section (1), sub-section (2) or sub-section (3) the Court may also pass a written order directing the officer in charge of the nearest police station to take measures to ensure the protection of the aggrieved person or her child/children. (7) The Court may order the respondent to return to the aggrieved person any immovable property, stridhan or gift items, assets and immovable property earned at the time of the marriage, valuable documents, certificate any other property or valuable security over which she possesses rights of ownership,

16. Compensation order.- (1) If the aggrieved person suffers or has the possibility of suffering any physical, psychological or financial harm or damage to movable or immovable property, she may file a claim for compensation, either along with the application under section 11 or separately thereafter.

(2) The Court shall dispose of the application submitted under sub-section (1) within 6(six) months of its receipt. (3) The Court, in disposing of the application submitted under sub-section (1), after giving the parties opportunity of being heard and subject to the provisions of subsection (4), order such monetary compensation to be paid to the aggrieved person as it deems reasonable. (4) Before the disposal of an application submitted under sub-section (1), the Court may impose the responsibility on any person or organization to determine the actual loss or damage sustained, and during the hearing of the claim for such compensation, shall take into consideration the following facts: (a) the extent of the injury, suffering and the nature and extent of the physical or mental harm suffered; (b) the cost of medical treatment for such injury; (c) temporary or permanent effect of such injury; (d) any impact of the harm to present and future earnings; (e) the amount and value of the movable or immovable property moved, transferred, destroyed or damaged; (f) reasonable portion of the expenses so far incurred by or on behalf of the aggrieved person as a consequence of the domestic violence. (5) The Court may pass an order against the respondent for the maintenance of the aggrieved person and her children, which is sufficient and reasonable and consistent with the standard of living she is accustomed to. (6) The Court may, if it deems fit, order payment of lump sum or monthly payments of maintenance. (7) The Court shall send a copy of the compensation order made under this section to the concerned parties and to the Officer in Charge of the police station within the local limits of whose jurisdiction the

86 87 respondent ordinarily resides or stays. (8) If the respondent is an employee of any government, non-government, semi-government or autonomous organization, then a copy of the compensation order shall be sent to the higher authority of the respondent. (9) If the respondent fails to pay the compensation according to the order made under subsection (3), the Court may direct the employer or the person under whom he is working, to pay the sum of compensation due to the aggrieved person from the wages, salaries or from any other monies due to him, directly to the aggrieved person or by depositing the sum in her bank account. (10) The compensation imposed under this section may be realized according to the provisions of the Public Demands Recovery Act, 1913(Bengal Act III of 1913).

17. Custody orders.- Notwithstanding anything contained in any other law for the time being in force, the Court may, at any stage of the hearing of an application under this Act, order that the custody of a child of the aggrieved person be given temporarily to the aggrieved person or anyone on her behalf for safe keeping and if necessary shall mention in such order the subject of the respondent’s visitation rights to the child.

18. Court to give copies of order free of cost.- The Court shall, in all cases where it has passed any order under this Act, supply a copy thereof free of cost to the parties to the application, the officer in- charge of the concerned police station, the Enforcement Officer and if applicable, any service provider.

19. Duration and alteration of orders.- (l) A protection order made under section 14 shall be in force until the aggrieved person submits an application for its discharge and such application is accepted by the Court. (2) If the Court, on receipt of an application from the aggrieved person or the respondent and after giving the parties the opportunity of being heard, is satisfied that due to changed circumstances, an order given under this Act needs to be altered, modified, amended or revoked, it may, based on reasons to be recorded in writing, amend such order.

Chapter-Five Disposal of Application, Trial, Appeal, etc.

20. Disposal of cases.- (1) The Court shall, dispose of every application made under this Act within a period of 60 (sixty) working days from the date of issuance of notice. (2) Where the concerned Court fails to dispose of the application within the stipulated time under sub- section (1), it shall, after recording the reasons, dispose of the case within an additional 15(fifteen) working days and shall inform the appellate court in writing of so doing.

86 87 (3) If for some reasonable cause it is not possible to dispose of the case within the extended period under sub-section (2), the court after recording the reason in writing, may take another additional 7(seven) working days and shall inform the matter of such time extension in writing to the appellate court. (4) Where the concerned Court again fails to dispose of the case within the extended time under sub- section (3), it shall dispose of the case as soon as possible and shall send a written report in every 7(seven) days to the appellate court, but the appellate court either by the application of any party or its own motion may transfer the case to any other appropriate court. (5) When any case is transferred under sub-section (4), it shall be disposed of on priority basis and action shall be taken from the stage where it was pending, as if it was pending in this court on that stage and it was never transferred.

21. Trial.- (1) Notwithstanding anything contained in the Code of Criminal Procedure or in any other law for the time being in force, any application or trial of an offence or any proceeding under this Act shall be tried of by a First Class Magistrate or where applicable, by a Metropolitan Magistrate.

(2) In granting the compensation order the Judicial Magistrate or Metropolitan Magistrate shall have no pecuniary jurisdiction.

22. Procedure of trial. - (1) Save as otherwise provided in this Act, for disposal of any application or trial of an offence or any proceeding under this Act the provisions of the Code of Criminal Procedure shall be applicable.

(2) For disposal of any application or trial of an offence or any proceeding under this Act the provisions of summary trial laid down in chapter XXII of the Code of Criminal Procedure shall be applicable.

23. Trial in camera.- The Court may, either on basis of the consent of the concerned parties or if it considers necessary on its own motion, conduct proceedings under this Act in camera.

24. Local investigation.- In the process of disposal of any application or proceeding, the court may order, after giving due notice to the parties and in order to ascertain the truth or otherwise of the alleged incident, that local investigation be conducted at the place of occurrence and such investigation must be completed within the time given by the court.

25. Service of order.- (1) Any order issued by the court under this Act shall be served on the parties according to the procedure laid down in the Code of Criminal Procedure.

(2) Any order issued by the court under this Act may be served by the process server, the police or by the Enforcement Officer: Provided that the warrant of arrest shall be served by the police officer.

(3) The process server or the police or the Enforcement Officer shall serve the copy of the order within 3 (three) working days and submit the service return to the court along with a certificate that such order was duly served.

(4) If necessary, in addition to the above modes of service, orders or in relevant cases notice may be served by registered post or by courier service or by any other means prescribed by the Rules, and for these additional means of service, the cost of service shall be borne by the applicant. 88 89 26. Trial in absentia of the respondent.- (1) Where despite the notice for appearance of the respondent having been served, the respondent does not appear before the court or after appearing once remains absent subsequently, the court may in the absence of the respondent try the case ex parte.

(2) Where despite notice for appearance of the respondent being served, the respondent fails to appear before the court or after appearing once remains absent subsequently, the court may issue a warrant of arrest against him.

27. Rejection of application.- When any application is rejected by the court due to the absence of the applicant, the court which has rejected such application may, on the application of the applicant and if it considers it reasonable, revive the application at the stage at which it was rejected:

Provided that such application must be submitted within 30 (thirty) working days of the rejection and can only be submitted once.

28. Appeal.- (1) Notwithstanding anything contained in the Code of Criminal Procedure or any other law for the time being in force, for the purpose of this Act the Chief Judicial Magistrate or where applicable, the Chief Metropolitan Magistrate court shall be deemed to be the appellate court.

(2) The appeal against any order under this Act shall be filed by any aggrieved party within 30 (thirty) working days from the date of the passing of the order to the Chief Judicial Magistrate or where applicable, to the Chief Metropolitan Magistrate court.

(3) The appeal shall be disposed of within 60 (sixty) working days from its filing and it must not be transferred more than once without any valid reason.

Chapter-Six Offence, Punishment, etc.

29. Cognizable, bailable and compoundable.- The offence committed under this Act shall be cognizable, bailable and compoundable.

30. Penalty for breach of protection order.- A breach of protection order by the respondent shall be an offence under this Act and shall be punishable with imprisonment which may extend to 6(six) months, or with fine which may extend to 10(ten) thousand Taka, or with both and repetition of any offence shall be punishable with imprisonment which may extend to 2(two) years, or with fine which may extend to 1(one) lakh Taka, or with both.

31. Community welfare service.- (1) The Court may, if it considers it suitable, instead of passing an order of punishment against the respondent under section 30, order the performance of different types of community welfare services by the respondent for a specified period and responsibility may be vested upon any institution or organization to supervise such services.

88 89 (2) The Court may order that a portion of the income, which it considers suitable, earned by the respondent from such community welfare service under sub-section (1), be paid to the aggrieved party and where applicable, to her child/children or any dependents as it deems appropriate.

(3) For the purpose of the sub-section (1) and (2) Rules may be framed.

32. Punishment for false allegation.- If any person with the purpose of causing harm to any other person, despite knowing that there is no cause of complaint under this Act, makes anapplication, that person shall be punishable with imprisonment which may extend to 1(one) year, or with fine which may extend to 50(fifty) thousand Taka, or with both.

Chapter-Seven Miscellaneous

33. Public Servants.- The Enforcement Officers, while acting or purporting to act in pursuance of any of the provisions of this Act shall be deemed to be public servants within the meaning of section 21 of the Penal Code,1860.

34. Accountability of Enforcement Officer.- If any Enforcement Officer fails, refuses or neglects to discharge his or her duties as directed by the Court and cannot offer sufficient reason for so not doing, departmental proceedings shall be taken against her or him.

35. Act not in derogation of any other law.- The provisions of this Act shall be in addition to, and not in derogation of the provisions of any other law.

36. Power to make rules. - The Government may, by notification in the Official Gazette, make rules for the purpose of carrying into effect the provisions of this Act.

37. Authentic English text.- The Government may, by notification in the Official Gazette, publish an authentic text of the original Bengali Act in English: Provided that in the event of conflict between the Bengali and the English text, the Bengali text shall prevail.

90 91 APPENDIX II

Sample Cases with Relevant Orders, Status, Etc., Under the PHR Project:

Application Relationship of Under Order Given/ Case No. Applicant and Magistrate Court Sections of Status of Case Opposite Party DVPP Act of 2010 Property and goods Third Court of of wife recovered Section 1. CR 08/2013 Wife against husband Senior Judicial and case dismissed 15(1)(e) Magistrate, Sylhet upon application of applicant Ex parte interim Monirampur Senior Sections 11, protection order, Wife against husband 2. CR 340/2014 Judicial Magistrate 13, 14, 15 residence order and mother-in-law Court, Jessore and 16 and order to pay maintenance Wife against husband, Sadar Judicial Section 10, 3. CR 36/2014 mother-in-law and Magistrate Court, 13(1), 14, 15 Case withdrawn sister-in-law Jessore and 16 Senior Judicial Ex parte interim Wife against husband, Magistrate Section 11, protection order, 4. CR 76/2015 mother-in-law and Cognizance Court, 13, 14, 15 residence order sister-in-law Monirampur, and 16 and order to pay Jessore maintenance Judicial Magistrate Section 11, and Cognizance 5. CR 17/2015 Wife against husband 13(1), 14, 15 Case withdrawn Court, Monirampur and 16 Jessore Section 13, Judicial Magistrate 6. CR 28/2012 Wife against husband 14, 15 and Case withdrawn Court No. 2, Sylhet 16

Senior Judicial Section 13, Permanent protection 7. CR 92/2014 Wife against husband Magistrate Court 14, 15 and order and residence No. 1, Sylhet 16 order Senior Judicial Section 14, 8. CR 23/2014 Wife against husband Magistrate Court Case withdrawn 15 and 16 No. 1, Sylhet Senior Judicial Section 9. CR 09/2014 Wife against husband Magistrate Court Case withdrawn 15(1)(e) No. 1, Sylhet

90 91 Application Relationship of Under Order Given/ Case No. Applicant and Magistrate Court Sections of Status of Case Opposite Party DVPP Act of 2010 Senior Judicial Osmaninagar Magistrate, Court Section 10. Thana, CR Wife against husband Case withdrawn No.1, Osmaninagar, 15(1)(e) No. 116/2014 Sylhet. Residence order, interim protection Judicial Magistrate order and order CR No. Wife against husband, Section 10, Court, Monirampur, for payment of 11. 12/2015 mother-in-law and 11, 13, 14, Jessore maintenance through father-in-law 15 and 16 the office of the EO of Monirampur, Jessore Senior Judicial Sections 10, Magistrate 13, 14, 15(1) Residence order and Wife against husband 12. 148 C/2012 Cognizance Court (a) (b)(c), permanent protection and mother-in-law 3, Chirirbandar, 15(2)(4)(5) order Dinajpur and 16 Wife against husband, Chief Judicial Sections 10, CR No. 13. mother-in-law, father-in- Magistrate Court 13, 14, 15, Case withdrawn 47/2013 law and brother-in-law Chittagong 16 and 17

Sections Judicial Magistrate 3(a), 3(b) 10, 1st Class Permanent protection Wife against husband, 13, 14, 15(1) 14. 85 C/2013 Cognizance Court order and residence husband’s second wife (c)(d)(e), -3 (Chirirbandar), order 15(4)(6) and Dinajpur 16(5)

Senior Judicial Magistrate 1st Wife against husband, Class Cognizance 15. 253/C/2013 Section 30 Case dismissed husband’s second wife Court -3 (Chirirbandar), Dinajpur Sections Permanent protection Senior Judicial 3(a), 3(b), order for residence Wife against husband, Magistrate 10, 13, 14, in shared household husband’s second 16. 412 C/2012 Cognizance Court 15(1)(c)(d) and maintenance wife, father-in-law and -3, Chirirbandar (e),15(4), and protection from mother-in-law Dinajpur 15(6) and physical and mental 16(5) violence

92 93 Cases Under DVPP Act Facilitated by Manusher Jonno Foundation with Partner Organizations (and Partners on Their Own):

Working Area/ Number of Organization Referred to/ Organization District Cases Handled Case

1. POPI Kishoreganj 7 Government Legal Aid Services

Mohideb Jubo Samaj 2. Kurigram 5 Government Legal Aid Services Kallyan Sangstha (MJSKS)

3. Moitree Bogra 1 BLAST

4. Pollisree Dinajpur 2 Pollisree

Concerned Women for Mymensing 5. 8 Government Legal Aid Services Family Development and Tangail Barishal, Bangladesh National Women 6. Rajshahi, 6 BNWLA Lawyers’ Association Thakurgaon Tangail, Bangladesh Manabadhikar Jhenaidah, 7. 250 BMBS Bastabayon Sanstha (BMBS) Khulna, Chittagong Total 279 (194 of these were under programs with MJF)

Source: MJF Office

Protecting Human Rights (PHR) Program Status of Domestic Violence Cases Filed and Disposed (January 2012–September 2016)

Cases Area Cases Disposed Cases Pending Filed Dinajpur 22 21 1 Jessore 41 31 10 Barguna 4 3 1 Bogra 53 46 7 Sylhet 68 51 17 Chittagong 10 7 3 198 159 39

92 93 APPENDIX III

QUESTIONNAIRE FOR ENFORCEMENT OFFICERS

(Translated from Bangla)

Name:

Designated Area:

Upazila: District: Division:

Mobile: e-mail:

Date/year of joining: ______

(1) At your present position, how many allegations/complaints have you received about incidents of violence committed against women and children within the home? ______

(2) What kinds of domestic violence have there been complaints about?

►Physical violence: ______

►Mental/psychological violence: ______

►Sexual violence: ______

►Economic violence: ______

(3) How many allegations have you solved through mediation/settlement? ______

(4) Who came to you with the allegation of domestic violence?

♦ An NGO______

♦ Police ______

♦ Aggrieved party herself______

♦ Someone on behalf of the aggrieved party______

(5) Have you received any training on the DV Act 2010 and your role as ‘Enforcement Officer’? Yes: ______; No: ______94 95 (6) If yes to the above, from whom? ______

(7) How many victims/survivors of domestic violence have you assisted in going to the Court under the Domestic Violence Act of 2010? ______

(8) If you have so assisted, how many aggrieved persons have you assisted in applying for protection orders? ______

(9) Has the Court asked you for any report on, or asked you to investigate any occurrence of domestic violence? Yes: ______; No: ______

(10) Has a list of service providers been sent to your office by the relevant Ministry?

Yes: ______; No: ______

(11) If yes, have you displayed the list in your office?

Yes: ______; No: ______

(12) Have you sent, assisted in sending or helped any aggrieved person access:

●Any shelter home: Yes: ______; No: ______

●Government legal aid services: Yes: ______; No: ______

●Any NGO/human rights organization providing legal assistance:

Yes: ______; No: ______

●Any facility providing psycho-social counseling or similar assistance:

Yes: ______; No: ______

●Any medical facilities/hospitals/clinics: Yes: ______; No: ______

(13) Have you, by the order of the Court, recovered any property from any respondent’s possession in favor of an aggrieved person?

Yes: ______; No: ______

(14) If yes to the above, have you done so directly or have you assisted the Police in such recovery

(15) If you have any opinion regarding the Domestic Violence Act 2010, your role as enforcement officer or any other pertinent issue, please share: 94 95 APPENDIX IV

Focus Group Discussions:

(1) FGD with area coordinator and 9 legal counselors of the PHR Program from Patiya Upazila, Chittagong, at project office, Laldeghirpar, Court Road, Chittagong

(2) Mini FGD with area coordinator, legal counselor and domestic violence survivor, Shikolbaha Union, Patiya, Chittagong

(3) FGD with area coordinator and 16 legal counselors under the PHR Program at project office, Bogra

(4) FGD with 4 panel lawyers of BNWLA at project office, Bogra

(5) FGD with 6 enforcement officers from Bogra District at BBQ Restaurant, Bogra

(6) FGD with 4 Bogra judicial magistrates, Bogra Judicial Magistrate Court

(7) FGD with area coordinator, Upazila legal counselor and two domestic violence survivors; Chirirbandar, Dinajpur

(8) FGD with area coordinator and 9 legal counselors of the PHR Program; project office, Paharpur, Dinajpur

(9) FGD with Upazila Women Affairs Officer and EO, Birganj Upazila and District Women Affairs Officer, Dinajpur; Area Coordinator PHR Program, Dinajpur and Legal Counselor, PHR program, Chirirbandar at the office of District Women Affairs Officer, Dinajpur

(10) FGD with District legal aid officer, Chief Judicial Magistrate and Area Coordinator, PHR Program, DLAC Office, Dinajpur Court

(11) FGD with enforcement officers from 15 Upazilas from different Districts at the Women’s Directorate, Eskaton, Dhaka

96 97 96 97 98 PB