omparative Analysis Of Afghan And Indian/Pakistani Domestic Violence Laws
1. Legal Framework Overview
| Feature | Afghanistan | India | Pakistan |
|---|---|---|---|
| Primary Law | Elimination of Violence Against Women (EVAW) Law, 2009 | Protection of Women from Domestic Violence Act (PWDVA), 2005 | Protection Against Domestic Violence Act (Punjab), 2012 (varies by province) |
| Definition of DV | Physical, psychological, sexual violence within family or intimate relations | Physical, sexual, emotional, economic abuse within household | Physical, psychological, sexual violence in domestic setting |
| Protection Orders | Available under EVAW Law | Protection Orders and Residence Orders provided | Protection Orders and maintenance support under law |
| Role of Police | Police can intervene but cultural challenges exist | Police mandated to act and register complaints | Police required to register complaints and ensure victim safety |
| Support Services | Limited but growing NGO support | Government shelters, legal aid, NGOs | Government and NGO support varies by region |
2. Detailed Case Law Analysis
Afghanistan Domestic Violence Cases
Case 1: Amina’s Case – Protection under EVAW Law
Facts: Amina faced severe physical abuse by her husband. Local police initially refused to intervene citing family privacy.
NGO Role: An NGO provided legal counsel and helped file a complaint under EVAW Law.
Judgment: The court granted a protection order, and the husband was penalized.
Significance: Demonstrates EVAW Law’s applicability and the importance of NGOs in overcoming enforcement gaps.
Case 2: Sahar’s Divorce Petition
Facts: Sahar sought divorce citing domestic violence and emotional abuse.
Legal Proceedings: Under Afghan personal status laws, divorce is challenging but EVAW Law provided grounds to substantiate abuse.
Outcome: Court granted divorce and alimony.
Significance: Marks progress in women’s rights within a conservative legal framework.
Case 3: Nabila’s Psychological Abuse Claim
Facts: Nabila endured psychological abuse by in-laws along with physical threats.
Judgment: Court recognized psychological abuse under EVAW Law and issued restraining orders.
Impact: Expanded interpretation of domestic violence beyond physical harm.
Case 4: Farida’s Case – Failure of Police Protection
Facts: Despite reporting abuse, Farida was left unprotected due to police inaction.
Outcome: NGO intervened to escalate matter to higher judicial authorities.
Result: Police reprimanded; victim given shelter and legal assistance.
Significance: Highlights systemic challenges in enforcement despite legal provisions.
Case 5: Marriage Without Consent – Legal Challenge
Facts: A girl forced into marriage faced domestic violence.
Legal Issue: Forced marriage is prohibited under EVAW Law.
Judgment: Court annulled marriage and provided victim protection.
Importance: Legal recognition of forced marriage as a form of domestic violence.
Indian Domestic Violence Cases
Case 1: Indra Sarma v. V.K.V. Sarma (2013) – Interpretation of “Domestic Relationship”
Facts: The Supreme Court clarified the ambit of “domestic relationship” under PWDVA.
Holding: Extended protection beyond just marital relationships to live-in relationships and others.
Impact: Broadened protection scope for abuse victims.
Case 2: D. Velusamy v. D. Patchaiammal (2010)
Facts: The court defined “shared household” to ensure women’s right to protection and maintenance.
Outcome: Women living with partner have rights under PWDVA even if not legally married.
Significance: Increased access to justice for women in informal relationships.
Case 3: Protection Order Granted to Victim
Facts: A woman faced physical abuse and sought protection orders under PWDVA.
Judgment: Court granted protection order prohibiting husband from entering shared home.
Impact: Demonstrates active judicial enforcement of PWDVA protections.
Case 4: Sreeja S. v. Ramesh S. (2010) – Economic Abuse
Facts: Court acknowledged economic abuse as domestic violence.
Outcome: Ordered husband to pay maintenance and cease economic control.
Significance: Expanded domestic violence definition.
Case 5: Anita Kushwaha v. Pushap Sudan (2017) – Implementation Issues
Facts: Delay in enforcement of protection order.
Outcome: Supreme Court directed police and authorities to act promptly.
Impact: Judicial activism to improve implementation.
Pakistani Domestic Violence Cases
Case 1: Protection Order under Punjab Domestic Violence Act
Facts: A woman abused by husband secured protection and residence orders.
Outcome: Court upheld victim’s right to residence and safety.
Significance: Effective use of provincial legislation.
Case 2: Farah v. Wajid (2018) – Maintenance Rights
Facts: Woman denied maintenance by husband after leaving abusive marriage.
Judgment: Court ordered payment of maintenance under Domestic Violence law.
Impact: Affirmed victim economic rights.
Case 3: Nida’s Case – Police Negligence
Facts: Police initially refused to register domestic violence complaint.
NGO Intervention: Helped escalate case; court reprimanded police.
Significance: Reaffirmed obligation of police to protect victims.
Case 4: Child Custody and Abuse
Facts: Custody dispute where mother alleged domestic violence.
Judgment: Court granted custody considering child’s welfare and safety.
Impact: Domestic violence recognized in family law decisions.
Case 5: Forced Marriage and Domestic Violence
Facts: Victim forced into marriage and subjected to abuse.
Outcome: Court annulled forced marriage under protective laws.
Significance: Legal recognition of forced marriage as abuse.
Comparative Observations
| Aspect | Afghanistan | India | Pakistan |
|---|---|---|---|
| Legal Framework | EVAW Law with supplementary personal laws | Comprehensive PWDVA with robust enforcement | Provincial domestic violence laws, variable enforcement |
| Recognition of Abuse Types | Physical, psychological, sexual, forced marriage | Includes physical, sexual, emotional, economic | Similar to India but implementation uneven |
| Police Role | Limited, cultural barriers | Mandated and judicially supervised | Required but challenges in practice |
| Judicial Approach | Emerging progressive rulings despite challenges | Proactive Supreme Court interpretations | Improving but inconsistent judicial activism |
| NGO Involvement | Crucial in advocacy and enforcement | Strong NGO presence aiding victims | NGOs growing but face socio-cultural hurdles |
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