Combating violence against women
DESPITE our commitment to equal protection for male and female in our constitution (Article 27, 28) and international human rights treaties like Convention on the Elimination of all forms of Discrimination Against Women (CEDAW),Convention against torture and other cruel, inhuman or degrading treatment or punishment (CAT), violence against women (VAW) is quite high in our society. Being vulnerable in a patriarchal society like ours women face myriad types of violence. Apart from general provisions of penal laws, few special laws were enacted which offer host of legal remedies for offences involving VAW. Exploring writ jurisdiction under Article 102 for enforcement of human rights of women is also available in the High Court Division of the Supreme Court.
In particular, Penal Code (XLV of 1860) contains provisions that defined hurt, other tortures, abduction, murder, defamation etc. as punishable offences. Criminal courts of different tiers designated in Schedule II of the Code of Criminal Procedure 1898 are the fora to try such offences.
Further, Suppression of repression against women & children (Act VIII of 2000) was enacted to combat and prevent the violence against women and children and it provided for stringent punishments for committing offences relating to dowry, murder, rape etc. The tribunals established under the Act are fora to deal with the issues relating to VAW.
Dowry prohibition (Act XXXV of 1980) prohibits giving, taking, demanding dowry at the time of marriage and thereafter. Domestic violence (prevention and protection) (Act LIV of 2010) also provides for exhaustive provisions in dealing with issues relating to domestic violence. Likewise, Suppression of Human Trafficking Act 2011, Suppression of Acid Crimes Act 2000 also deal with the heinous and cruel forms of VAW. Legal Aid Act 2000 offers legal aid facilities for the disenfranchised including victims of VAW.
In Bangladesh, officially reported crimes involving violence against women and girls are only the tip of the iceberg as many such crimes go unnoticed and unreported to the machinery of law due to plethora of reasons. Perhaps fear of further retaliation, illiteracy, mind set to take it as fate, patriarchy, commitment to the family and children, lack of awareness and self -respect, cumbersome legal formalities, economic dependence and many other social barriers are responsible for not setting the law in motion even the offence is committed.
Though a victim in general lodge a complaint or first information report, in essence she has no right excepting to be witness. Though few special laws provides for bit of protection to the victim of VAW in paper, in practice she is considered to be virtual nobody in our justice system. It may be mentioned here that in a police case (GR case) it is the duty of the police (prosecution) to produce the witnesses whereas complainant herself is responsible for presenting her witnesses in complaint case (CR case).
Police are not enthusiastic in producing witnesses and paucity of deposition of medical officer and investigating officer is a common scenario in criminal courts. Further, a victim gives or is compelled to furnish obliging evidence in favour of the accused who generally happened to be her male partner following some local compromise. In some grave offences like murder, rape, trafficking, abduction the victims/ witnesses seldom feel in-secured for giving testimony against hardened criminals. Consequently, the offenders escape the dragnet of law, though violence against women has been committed.
Apart from series of loopholes apparent in legal proceedings, defective and delayed investigation also buries the enthusiasm of the victims of VAW. There is no denying that victims of VAW have to undergo unbearable hurdles through investigation and trial. For instance, question of custody of victim, recording of her statements of victim, medical examination of victim by male doctors, unsavoury & humiliating question in cross-examination, absence of victim protection law, high litigation costs, pressure of the natal family and in- laws to reach a compromise, timeless adjournments, long delay in disposing of cases are few challenges she faces in litigation. In most cases, there is no effective pre-trial meeting between the prosecutor and the victim/ witnesses which put the witnesses at bay during trial. Furthermore, very low conviction rate in cases involving VAW is a perennial problems the courts are facing.
The compensation provision of the Criminal Procedure Code 1898 too is of little help for the victims of VAW. According to section 545, when a monetary fine is imposed as the sole or an additional punishment, the court may, at its discretion, direct all or part be paid to the victim. However, if there is an acquittal or if the offender cannot be apprehended, there is no opportunity for victim compensation. Provisions for recovery of loss or compensation from offenders through the criminal justice process have been incorporated in few special statutes including Act VIII of 2000. Regrettably, this judicial discretion is rarely exercised by the judges.
It may be specifically pointed out that violence in the form of non- physical sexual harassment, incest, deserting of women, spousal rape etc. still remain beyond the ambit of criminal laws.
Though few special legislations offer a host of remedies involving VAW, law alone cannot guarantee the dignity and honour to women nor can punishment to the tormentors. However, consciousness of the victim, pro-active and compassionate role of the prosecution, the investigating agency, legal aid office and local elected representatives and obviously attitude and perception of judges are crucial for the efficacy of the legal regime against violence against women.
The writer is Additional Chief Judicial Magistrate at Bangladesh Judicial Service.
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