DV is a major barrier to gender equality in Pakistan, which ranks 145th out of 146 countries in the Global Gender Gap Report 2024 which measures gender parity across economic, educational, health, and political-related indices.

Globally, 27% of women aged 15-49 report experiencing physical and/or sexual violence from their intimate partner. In Pakistan, however, 70 to 90 percent of women experience some form of physical, emotional, or psychological abuse from an intimate partner.

The law on domestic violence in Sindh, Pakistan

Sindh was the first province in Pakistan to enact a law on preventing DV. It enacted the Domestic Violence (Prevention and Protection) Act in 2013 (DV Act) and formulated rules in 2016. The DV Act and rules together form the DV law in Sindh. The law provides grievance redressal mechanisms and sets up institutions to protect the rights of women, children, and other vulnerable persons. This includes protection and reporting mechanisms, such as protection committees (which consist of medical practitioners and psycho-social workers) and the Commission on Domestic Violence.

Additionally, gender-sensitive systems for protection such as direct petitions to the Courts were also introduced. The Courts are empowered to pass protection, residence, and monetary relief orders. Further, it has been mandated that the petition should be disposed of within 90 days by the courts for expedited redressal.

Following this, all provinces except the Islamabad Capital Territory (ICT) enacted specific laws to prevent DV.  Sindh is also the first province in Pakistan to adopt a roadmap for addressing domestic violence through the implementation of the DV law. The roadmap was developed by the Sindh Human Rights Commission(SHRC), an independent government institution with the mandate to promote and protect human rights. The roadmap provides a comprehensive analysis of the DV law, outlining the areas where the law must be amended to effectively protect victims/survivors.

Key recommendations of the roadmap for addressing domestic violence

Currently, the law does not explicitly state that the police can register a First Information Report (FIR). An FIR is the first step in initiating a criminal investigation and taking the case forward to court. The roadmap revealed that about 1,491 cases of DV were reported during January and May 2024 to the provincial police in Sindh but only 5 FIRs were registered under the DV Act during the time-period of January 2023 and March 2024. Hence the roadmap recommended that the law should be amended to explicitly provide powers to the police to lodge an FIR to increase access to justice.

The roadmap outlines specific actions for government departments, civil society organizations, and academic institutions to prevent DV, protect victims/survivors, prosecute offenders, and provide rehabilitation to those affected. For example, section 7 of the DV Act allows a victim/survivor to lodge a direct petition in the Court against the perpetrator. However, it was revealed that only 320 cases were filed under the DV Act since its enactment in 2013. The roadmap revealed that the Courts are not victim-friendly, hence victims/survivors do not access the courts for redressal. Hence the roadmap suggested that the judiciary should conduct gender-sensitization training of judges along with strengthening victim-protection mechanisms such as video-link evidence.

Additionally, the roadmap recommended that the ‘Commission on Domestic Violence’ as provided under section 4 of the DV Act should be established to protect the victims/survivors of DV. Under Section 4(2)(a), it can review and suggest amendments to the law ensuring evolving protection for victims/survivors.

Currently, shelter homes have not been established in all districts across Sindh. Shelter homes are crucial in rehabilitating victims/survivors of DV. Therefore, the roadmap also provided a comprehensive analysis of Pakistan’s international law obligations, including under the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW). The roadmap highlighted the Concluding Observations by the CEDAW Committee received by Pakistan on 17 March 2020 which highlighted that Pakistan ‘ensure the availability of inclusive and accessible shelters for women who are victims of violence…’’.

Conclusion

Violence against women is preventable. The ripple effect of DV extends far beyond the immediate victim, impacting families, communities, and society at large. Both the provincial and federal governments in Pakistan must coordinate efforts to end DV and pave the way for a gender-equal society.

The roadmap developed by the SHRC is a step in the right direction for the prevention of DV in Sindh. Other provinces should draw inspiration from Sindh’s initiative and create similar roadmaps to prevent DV. Additionally, the Parliament of Pakistan must enact a law to protect victims of DV in the ICT.

Increasingly recognised as a human rights issue, domestic abuse is a form of gender-based violence produced by systemic patriarchy and a legal system designed to regulate the public sphere rather than the private domain. As a party to the UN Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), as well as its Optional Protocol which enables individuals to lodge a claim directly for violations of CEDAW, Australia has affirmed its commitment to addressing all iterations of discrimination faced by women and girls. However, Federal and State institutions may risk breaching their human rights obligations under the CEDAW by failing to effectively respond to the current crisis of domestic abuse, especially with respect to the guidelines of General Recommendation 35 of 2017.

This Recommendation elaborates on General Recommendation 19, as well as the 1993 Vienna Declaration, 1995 Beijing Declaration, and the Concluding Observations of the CEDAW Committee. It requires that state parties not only acknowledge the broader patriarchal culture in which acts of domestic violence take place, but also actively uphold rigorous standards of due diligence with respect to investigating and prosecuting offences of gender-based violence, in order to fulfil their obligations under CEDAW. Importantly, the Recommendation also compels States to ensure that appropriate provision is made for supporting and protecting those affected by gender-based violence through both the legal system and auxiliary services, premised on recognition of the unique obstacles that victims face in reporting offences that have taken place in the home or have been perpetrated by family members.

Natasha Stott Despoja, Australia’s recently appointed representative to the CEDAW Committee, writes in her tract On Violence that eliminating violence against women and children ‘requires a conscious and critical conversation about gender relationships, power, and what builds and changes culture’ in order to prevent violence before it begins. Such a conversation has emerged in many Australian state jurisdictions since the pandemic began last year, especially with regards to criminalising the proposed offence of coercive control, which is designed to target the deliberate patterns of intimidation and disempowerment that typically characterise abuse within a domestic context. These coercive and controlling behaviours can also engender ‘systems abuse’, wherein perpetrators of domestic violence intentionally manipulate police contact and court proceedings to portray the victim as the abuser. Criminalising coercive control therefore presents the opportunity to recognise and respond to these nuanced and complex manifestations of family violence.

However, commentators have argued that a focus on criminalisation, with parallels to the Council of Europe’s Istanbul Convention, risks targeting communities that are already vulnerable to the misuse of police power. In particular, advocates for indigenous communities have contended that policymakers must recognise and address the intergenerational trauma that many Aboriginal women – Australia’s most incarcerated demographic – have experienced at the hands of police, as these victims risk being disbelieved by authorities and often face pernicious stereotypes when reporting domestic violence. Similar concerns have been raised by migrant Australians and representatives of minority religions.

Ultimately, to deal with Australia’s immediate crisis of domestic abuse as a result of lockdowns, concerted attention must be paid to funding and delivering the support that survivors need to safely remove themselves from dangerous situations, rehabilitate their independence, and protect themselves from the threat of future violence. Whether criminalising coercive control will effectively prevent future instances of abuse from developing remains contested. Apart from institutional prejudice and the potential for systems abuse to cause police to misidentify victims and perpetrators, a criminal response also risks diverting attention and resources from programs which enhance victims’ safety. As attested by the World Health Organisation, a robust, equality-oriented cultural climate is the best preventative measure; violence against women is not inevitable, but only ‘the product of complex, yet modifiable social and environmental factors.’

Measures to prevent crime have always been considered part of the positive obligations under Article 2 ECHR (right to life). Their scope is traditionally defined on a case-by-case basis, taking account of other relevant Convention provisions. Since the latter include Article 5 § 1, which allows for exceptions to the right to liberty on certain specifically enumerated grounds, the following question is inevitably asked: Would not a broad interpretation of these exceptions be necessary to ensure effective protection for Article 2?

Not surprisingly, the ECtHR has not excluded this argument (S., V. and A., § 124), for which support may also be found in recent Strasbourg judgments concerning ‘preventive detention’. Thus, McVeigh is no longer an isolated example of a case in which Article 5 § 1 (b) was found to authorise deprivation of liberty “to secure the fulfilment of (a sufficiently specific and concrete) obligation prescribed by law”. Ostendorf shows how this provision may be also used, under certain conditions, to police the obligation not to commit a criminal offence. Moreover, S., V. and A. relied on Lawless to interpret the second limb of Article 5 § 1 (c) (“when it is reasonably considered necessary to prevent … committing an offence”) in a manner that authorises deprivation of liberty not “in connection with criminal proceedings” (despite the link Lawless made between Article 5 § 1 (c) and § 3, which refers to a “trial”). It is true that this precedent has been applied rather sparingly, so far. However, these developments illustrate that the fear expressed about the ‘coercive sting’ of positive ECHR obligations is far from unfounded.

The dilemmas involved in situations where the right to life is pitted against other Convention-protected interests have been brought to the fore in the Kurt case, recently decided by the Grand Chamber. A father, against whom a barring and protection order had been issued on domestic-violence grounds, murdered his son, having taken him out of the classroom with his teacher’s permission. The application was brought in Strasbourg by the boy’s mother who argued, inter alia, that the father should have been remanded in custody following a criminal complaint lodged against him for rape, bodily harm and dangerous threats. The ECtHR, which reached an overall no-violation-of-Article-2 conclusion, disposed of the above argument by recalling the national courts’ finding that the authorities had acted lawfully in not taking the father into pre-trial detention.

The Kurt judgment would have, of course, rested on reasonably firmer ground (on this question) had the national courts found that it would have been unlawful to remand the father in custody. However, the Article 5 issue need not have arisen at all, as Kurt provides a good example of how the right to life can be safeguarded without unduly restrictive measures. Today, there is little doubt that the classroom murder would have been avoided with a better risk assessment (one that would not have focused exclusively on the mother, since the father had also ‘threatened’ her with the death of their children), coupled with information-sharing with the school.

However, how far can a body like the Court go in second-guessing, with the benefit of hindsight, operational decisions taken by the domestic authorities in such sensitive cases? The GC was divided, in this respect, between 10 judges who were prepared to recognise, in fact, a large national margin of appreciation and seven judges who wanted to examine whether every “reasonable measure” had been taken that could have had “a real prospect of altering the outcome”.

A different approach could have stressed the structural issues (see also EHRAC’s and Equality Now’s third-party intervention) that contributed to the authorities’ ‘not getting it right’:  the failure to use standardised risk-assessment tools (see GREVIO’s intervention), the limited scope of the domestic-violence-related orders and the shortfalls in the Austrian liaison systems (the above points also figure in the GC minority opinion). This would have been fully compatible with the subsidiarity principle. When understood in a constructive, forward-looking manner, the latter should be also about promoting general conditions in member states that favour respect for human rights. And cases of obvious injustice like Kurt provide the perfect opportunity for interpreting subsidiarity in this way.

In Bangladesh, section 2 (j) of the Prevention of Oppression against Women & Children Act, 2000 provides the definition of Dowry. Before the amendment in 2003, the definition of ‘Dowry” used to include any money, material or property demanded “directly or indirectly” by the bridegroom`s side or given or agreed to be given by the bride`s side. But, the amendment narrowed down the language and retained only “direct” demands. While in the matrimonial arrangement in Bangladesh, the bridegroom`s party shrewdly and impliedly expects “marital gifts” from the bride`s relative, it would be difficult to bring these ‘indirect’ demands to justice. Also, the present definition indicates that the demand must be as a consideration for or continuation of the marital relation. This means that if the husband does not threaten to end the marital relationship but physically abuses his wife to extract money, he can technically escape the liability for demanding Dowry. Thus, this amendment has adversely impacted the scope of the definition.

Moreover, in 2019, the High Court Division (HCD) held a controversial decision in the case of Shofiqul Islam vs State. In this case, the husband was convicted for repeated physical assault to his wife for dowry. Even one such incident of assault amounted to miscarriage, which is a separate offence under the Bangladeshi criminal law. As per the wife`s request, the HCD permitted out-of-court settlement and acquitted the husband. First of all, the criminal justice system of Bangladesh permits out-of-court compromise only in cases of compoundable offences listed under section 345 of the CrPC, 1898 (reaffirmed the issue in the apex court judgment) and the present offence (Section 11 ) is not one of them. Thus, this decision is against the codified law and is unjustified. Also, whether the wife`s request is voluntary is doubtful as in Bangladesh, women victims are always under pressure to drop their charges (Para 72).

But, what is more surprising is the ratio decidendi of the case which says that in Dowry Cases compromise should be permitted because the provision of the law is not bigger than protecting a family. The existing conservative society of Bangladesh compels thousands of women to tolerate domestic violence and lead an abusive life in the name of protecting the family system.This adversely affects women`s physical and mental health in the long run.  This highly contentious HCD reasoning  sheds light on the prevalent patriarchal mentality in the justice system, which puts significance on maintaining traditional family system while suppressing the need of ensuring justice.

Article 2 of the CEDAW requires the state parties to repeal the discriminatory practices in criminal justice system. Bangladesh has reservations only on Article 2 and 16, but only from Sharia Law perspective relating to marriage and inheritance issues and not for criminal justice system, and otherwise promises to comply with the section if not contradictory with other laws(Para 45).  Furthermore, CEDAW Committee obligates (Para11) the states to be aware of the traditional attitudes and practices which justify gender-based violence in a society. This “protecting the family system” approach is not adopted in any other non-gender based / general offences in the Country to exempt the liability of a criminally convicted person or for narrowing down the scope of the definition. This selective application of this approach reveals the chauvinistic attitude of the legal system to provide a man-friendly justice framework. Therefore, it is clear that Bangladesh is failing to comply with the aforesaid CEDAW regulations in relation to Dowry crime. Also, these discriminative approaches violate a women`s fundamental right of equality before and equal protection of law under Article 27 of the Constitution of Bangladesh.

In Bangladesh, where Dowry violence is increasing at an alarming rate (2019, 2020), the patriarchal justice system is making the situation more vulnerable for the women.