The Domestic Violence (Prevention and Protection) Act, 2010: An Appraisal

Nazia Wahab and Shahnewaj

25 May, 2017 12:00 AM

Daily-Sun-40-01-25-05-2017

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The Domestic Violence (Prevention and Protection) Act, 2010 (“the Act of 2010”) was enacted to address domestic violence in Bangladesh. The Act is preventive and protective in nature.

If we categorically analyse the Act of 2010 we would find that in its preamble the Act makes it clear for what reasons the authorities enacted this law. In the preamble of the Act it is stated that the Act is enacted to establish equal rights for women and children guaranteed in the Constitution of the People’s Republic of Bangladesh. More precisely it was enacted to prevent domestic violence and to protect women and children from domestic violence.
The purpose of the Act is dignified and righteous. However, if we evaluate in what extent the provisions of the Act serve its purposes in that case we would find that it frustrated almost all of its purposes. This is because domestic violence defined in section 3 of the Act failed to clear the confusion about domestic violence offence and family agony. In our country it is customary that parents and guardian have the right to chastise their children and husbands have the right to castigate their wives in order to correct their mistakes. The Act falls short to define in what extent they can exercise this right. Person of evil mind always try to take advantage of this phenomenon of the society.
It failed to define domestic violence comprehensively and to differentiate domestic violence offence and family agony. If section 3 of the Act of 2010 clarifies this thing in that case this type of misuse can be prevented. Except this when any family member commits domestic violence unintentionally exceeding his governing power of his family member, in that case in what way his act of domestic violence would be treated that should be determined. Also this Act itself recognised its weakness in section 35 describing that the provisions of this Act shall be in addition to, and not in derogation of the provisions of any other law, for the time being in force. The objectives of the enactment of the Act are contemplated in the preamble of the same.
The Act provided the duties and responsibilities of police officer, enforcement officer, service provider, shelter homes and medical service providers.

 

And also prescribes punishment for them in case of failure of performance of these duties assigned on them. Further it contains about rights and remedies of domestic violence victims such as interim protection order, protection order, residence order, compensation order, and custody order. It also deals about the trial proceeding of the offence committed in violation of the provision(s) of the same.
Though the offences defined in the Act are compoundable but the same did not impose any responsibility on the judge or magistrate to take initiative in this behalf. The prime objective of enacting this law is not to punish domestic violence offenders; rather its latent objective is to protect the women and children from the offence of domestic violence. This objective can only be obtained if the domestic violence case can be solved in an amicable way. In fact long hurdle of trial proceeding of the offence of domestic violence shall cause immense sufferings of both victim and offender that may increase enmity between them. Offence of domestic violence is the behavioural problem of the offender that may be cured by counselling.  However, the Act has not any provision for counselling both offender and victim of domestic violence.
This drawback hinders the ultimate purpose of enactment of this law. At present Bangladesh has also legislation named Nari-o-shishu Nirjatan Daman Ain, 2000. This Act also deals with extreme form of domestic violence. In that case, a question may arise “what is the necessity of this Act?” As the first one provides more harsh punishment, it is a trend to go for trial for domestic violence under Nari-o-shishu Nirjatan Daman Ain, 2000.
Domestic violence is a much more than complicated social and cultural diseases that must ultimately be fought by a combination of legal means, social movements and religious concern. No legal tools can be effective to fight against the domestic violence against women and children without mass social movements engaging all classes of people. To promote equal treatment of women prevent them from domestic violence, the government of Bangladesh must commit to ensuring a number of prerequisites. These include gender equality; improvement of service delivery (ensuring access to justice and services for victims, e.g. women’s refuges and shelters); the allocation of adequate resources and funding to women; promoting women entrepreneurship through financial aid, ensuring that victims of violence have access to immediate means of redress, rehabilitation and protection and establishing transparency and accountability in order to enforce positive regulations and legislations.

 

Nazia Wahab is an Assistant Professor of Law at University of Asia Pacific and Shahnewaj is an Advocate and Research Officer (Law) at Bangladesh Institute of Law and International Affairs (BILIA). Email: newazuaplaw@gmail.com.

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