11 National Legislative Framework -The Protection of Women from Domestic Violence Act,2005

Ajay Sangai Sangai and Severyna Magill

Learning aims

This chapter will introduce the reader to (i) domestic violence as a human rights issue, and (ii) provisions in human rights law applicable in this context, before elaborating on the provisions of the Protection of Women from Domestic Violence Act (2005). The module will end by identifying some of the weaknesses in implementing the Act and make recommendations for its better implementation.

Introduction

Domestic violence is an important site of gender inequality across the world and is rampant and widespread almost all over India. Women from all socio-economic groups face matrimonial violence. The National Family and Health Survey – III noted that nationwide about 40% women hadexperienced sexual or physical violence after marriage.

The status based discrimination that women are subjected to, as well as patriarchal cultural norms and institutions, entail that a large number of incidents of domestic violence are: (a) not understood as problematic and illegal; (b) seldom reported even if identified as problematic; (c) not pursued to their end, perhaps, at the intervention of local/ familial/ community mediators, or due to invocation of ideas of ‘honour’ or other institutional barriers; and (d) given inadequate and unequal consideration when pursued, because law enforcement agencies themselves are products of ideologies and cultures that have normalised gender based violence and discrimination against women.

Domestic violence may range from acts of intimidation or mental/ emotional abuse to acts of physical violence ranging from simple to grievous hurt to sexual abuse and murder. In this context, it is important to note that under criminal laws, marital rape is still not recognised as an offence.

Obligations under International Human Rights Law and the Constitution of India

Domestic violence is a violation of human rights that occurs with alarming regularity and has a permanent and even inter-generational impact. The 1993 UN Declaration on Elimination of Violence Against Women (herein DEVAW) held that violence against women, ‘is an obstacle to the achievement of equality, development and peace’; ‘constitutes [a] violation of the rights and fundamental freedom of women’; ‘is a manifestation of historically unequal power relations between men and women’; and while, because of such power relations women, in general, have been dominated and discriminated against, certain groups of women such as members of a minority, refugees and migrants, etc. are disadvantaged at multiple levels leaving them ‘especially vulnerable to violence’. As the DEVAW is a declaration, it only serves to provide useful information on how to conceptualise both violence against women and how this may constitute a rights violation. The Convention on Elimination of all forms of Discrimination against Women (CEDAW) as a treaty does, however, establish legal obligations upon all states which ratify it.

India ratified CEDAW in 1993. Although the convention lacks a provision explicitly addressing violence against women, it enjoins states party to ‘modify the social and cultural patterns of conduct of men and women, with a view to achieving the elimination of prejudices and customary and all other practices which are based on the idea of the inferiority or the superiority of either of the sexes or on stereotyped roles for men and women.’ Further, it enjoins the state to ‘take all appropriate measures to eliminate discrimination against women in all matters relating to marriage and family relations…’ These provisions, with their emphasis on ‘modifying’ the conduct of men to eliminate discrimination against women, can clearly be applied to domestic violence. This is because domestic violence is overwhelmingly perpetrated by men against women and the impacts may be both physical and psychological, sometimes last for the remainder of a woman’s life and may even result in her death. “Globally, as many as 38% of murders of women are committed by a male intimate partner.”

Whilst CEDAW issued its first general recommendation on violence against women in 1989; it was with General Recommendation 19 in 1992 that violence against women and state responsibilities were most clearly articulated. GR 19 required a ‘holistic approach to different manifestation of violence against women, identifying violence as discrimination against women, and thereby adopting a rights-based approach’, violence against women was brought ‘unequivocally into the domain of international human rights law.’ The Recommendation followed the UN Decade for Women where the most commonly considered form of violence at international level was family or domestic violence.’ It is now credited as shaping both opinio juris and state practise to such a large extent that violence against women and obligations to redress it are now customary international law.

Domestically, the Constitution of India prohibits discrimination on the grounds of sex and permits special provisions for women and children. This provision has been interpreted to both allow affirmative action as well as the creation of laws applicable to women’s social reality. The Constitution, therefore, recognises the role of both formal and importantly, substantive equality in combating discrimination against women. In addition to this, Article 21 recognises right to life and personal liberty. Through judicial activism, Article 21 now includes a substantive due process in addition to the formal procedural one. Consequently, it has received an expanded interpretation and now includes right to live with dignity. Various laws have been enacted to correct gender-based discrimination and have met with limited success. New laws have been enacted, and existing laws have also been amended, but the statistics continue to give us a grim reality of increasing incidents of gender-based violence and in particular, domestic violence. For the reasons discussed earlier such as stigma and societal pressure, it is plausible that the data could understate the phenomenon, yet the numbers, whatever they are, are, in themselves unsettling and alarming.

Protection of Women from Domestic Violence Act, 2005

Prior to the enactment of the Protection of Women from Domestic Violence Act, 2005 (hereafter, PWDVA or the Act) there were several laws in India that punished different forms of domestic violence. These included: Dowry Prohibition Act, 1961; IPC provisions Section 498A (cruelty) and Section 304B (dowry death). The PWDVA came into force in 2006 to provide: a comprehensive definition of domestic violence, various civil remedies and the creation of support structures to aid its implementation and help to effectively resolve the plight of domestic violence survivors. It is a civil law with criminal features supplementing the existing family, property and criminal laws and it recognises domestic violence as a human rights issue and a serious deterrent to development which criminal law is unable to address in its entirety.

Definition of domestic violence as per the PWDVA:

Harms or injures or endangers the health, safety, life, limb or well-being, whether mental or physical, of the aggrieved person or tends to do so and includes causing physical abuse, sexual abuse, verbal and emotional abuse and economic abuse; or
Harasses, harms, injures or endangers the aggrieved person with a view to coerce her or any other person related to her to meet any unlawful demand for any dowry or other property or valuable security; or
Has the effect of threatening the aggrieved person or any person related to her to any conduct mentioned in clause (a) or clause (b); or
Otherwise, injures or causes harm, whether physical or mental, to the aggrieved person.”

In addition to acts of commission, the law also includes acts of omission and general conduct of a man that harms, injures or otherwise tends/threats to endanger a woman. The law also recognizes various ways in which a woman could be abused, including physical (beating, kicking, or any physical act of injury), sexual (humiliating or degrading sexual act), economic (deprivation of basic resources and necessities), and verbal and emotional abuse (insulting or ridiculing). It also includes coercion and violence in relation to dowry.

PWDVA recognises a ‘woman’s right to reside in a violence free home and provides emergency remedies in case this right is violated.’ The Supreme Court of India in D. Velusamy v. D. Patchaiammal ruled that this law applies not only to matrimonial relations but also live-in relationships under the rubric of ‘relations akin to marriage’.34 Unlike criminal law, no arrests are made under this law. Instead, it adopts a rehabilitative approach to keep a marriage functioning, but safely, and provides for other remedies such as a right to reside in the shared household, residence orders, protection orders, compensation and other monetary relief, and the power to grant interim and ex parte orders. While some of the acts and conduct mentioned in PWDVA are also punishable under the IPC, the civil remedies under this law are easier and faster to access.

The Act recognises three important rights, namely: (i) the right to be free from violence; (ii) the right to reside in the shared household; and (iii) the right to obtain remedies provided by the law.

To enable the access to remedies, the Act provides that the State Government should appoint ‘Protection Officer and Service Providers’ as per the requirements of the area. Any person with credible information of domestic violence being committed or likely to be committed may inform the Protection Officer who shall then take appropriate steps as mentioned in the legislation. Recognising that police stations may also be the sites of distress and violence for women, many protection officers are based in mahila thanas (women police stations). It is hoped that these officers will facilitate access to justice by being more convenient as well as congenial access points to the legal process. The Act, therefore, mandates that both complaints brought to the attention of police officer, magistrates and protection officers are all taken cognisance of. Protection officers and police officers should acquaint the woman of her remedies in criminal law.

Remedies under the Domestic Violence Act:

Right to reside in the shared household: The Act recognizes the right of every woman in a domestic relationship to a shared household irrespective of whether she had any title or beneficial interest in it. This provision recognises that in India the majority of women will, upon marriage, move into their husband’s home and this home is often multi-generational and shared with the husband’s family.

Such practices result in most women being unlikely to have any legal claim to the property, e.g. a shared title deed. Until recently Hindu women had unequal inheritance laws and even today accessing ancestral property remains fraught with barriers. It is known that women own a very small proportion of property which is mostly akin to ‘benamis’ since they rarely exercise any real control over it. This measure is important to ensure that women living in relations are not removed from their houses, thereby compounding their vulnerability. Aggrieved women may seek appropriate legal intervention and retain their residence in case they are thrown out illegally.

Protection order: An aggrieved person may also apply for a protection order. A court may then direct the perpetrator to immediately stop any act of violence against her or anyone related to her, end any communication with her, and prevent the respondent from visiting her place of employment.

Moreover, the court could also direct the respondent to not undertake any financial transaction to the detriment of the woman.

Residence Order: A victim may demand a residence order in case she faces the risk of being thrown out of her marital home. The Act not only recognizes her right to the shared residence but also provides a remedy in case she loses her shelter. This recognises that for many married women returning to their ancestral home is not socially possible. Significantly, if the woman feels threatened in staying with her husband, she could either seek his removal from the residence or the court may direct him to provide her an alternate residence. No order can be obtained with respect to removal of a female from a shared residence under this legislation.

Monetary relief: A victim of domestic violence could also seek monetary relief such as medical expenses, loss of earnings or her/her children’s maintenance or any loss arising from damages to property. The court granting such relief should ensure that it is fair, reasonable and consistent with her standard of living. The magistrate may award a lump sum or monthly payment of maintenance depending on the nature and circumstances of the case. As an extra-ordinary measure, if the respondent fails to make the payment as fixed by the court, it could even ask his employer or a debtor to submit the required sum to the woman which could be set-off against his wages or the debt.

Custody Orders: A woman who is a victim of domestic violence is entitled to seek custody orders from the court to prevent being separated from her children. Fear of separation from children could dissuade a woman from reporting or seeking remedies against violence perpetuated on her. A court is empowered to draw up the arrangements to allow or disallow the respondent to visit the children.

The reliefs discussed above can be sought by the victim at any forum whether it is a family court, civil court or even a criminal court, even if a case was initiated before the enactment of this law.

Interim or ex-parte order:

The Act also empowers courts to grant interim reliefs and ex-parte orders while a case is still pending. Interim reliefs provide much needed support and security especially to a victim of violence who is otherwise socially and economically vulnerable.

‘Ex-parte order’ is another significant procedural relief which allows the court to pass an order in the absence of a party (ex-parte) if it is satisfied that there is a reasonable apprehension of immediate and irreparable injury to the applicant if the order is not granted and the balance of convenience also favours the victim. Hence, if a Magistrate is satisfied that the application on affidavit makes a prima facie case that the respondent is committing, or has committed or is likely to commit domestic violence, an ex-parte order could be granted against the respondent on the basis of that affidavit. This is an important provision along with the interim order to ensure that a victim is not prejudiced by the delays of legal process or due to dilatory tactics respondents may resort to by keeping themselves absent from the proceedings.

These orders operate for as long as the aggrieved woman wants them to operate for. In case she has received some other relief, or if the parties have arrived at a mutually satisfactory arrangement, either party should inform the court about it, and the order could be accordingly modified or cancelled.

There could be a reasonable apprehension in the mind of the aggrieved person whether any remedy exists if the respondent continues to violate these orders and continues violence against her. To tackle this, the Act also declares that violation of court orders and continuance of violence would be a non-bailable criminal offence attracting a maximum imprisonment for one-year and a fine of Rs.20,000. The court may arrive at a conclusion on such a matter even if it has only victim’s testimony to rely on without other pieces of evidence.

The magistrate may also initiate proceedings under Section 498A of the Indian Penal Code which provides for stringent punishments in cases of matrimonial cruelty if the alleged facts disclose that such acts were committed.

Match the following remedies with their functions –

Remedy	Function
Protection Order	A victim of domestic violence can seek use this relief in order prevent being separated from her children.
Monetary Relief	Allows an aggrieved woman, if threatened by her partner, to seek his removal from the residence or ensure he provides her with an alternate residence.
Interim/Ex-Parte Order	Prevents the perpetrator from continuing acts of violence against the aggrieved woman or anyone related to her, end communication with her and it also prevents him from visiting her place of employment.
Residence Order	Ensures the maintenance of an aggrieved woman and her children (including their medical expenses etc.)
Right to Reside in Shared Household	Ensures that the victim is not prejudiced by the delays of the legal process or any dilatory tactic that a respondent may resort to.
Custody Order	Ensures that a woman retains a residence at her marital home in case she’s been illegally thrown out.

The role of Service Providers/Protection Officers: Protection Officers (preferably women) are duty bound to assist aggrieved women in accessing justice under this Act. They’re appointed based on the qualifications and conditions prescribed by State Governments. They help facilitate a woman’s access to court remedies, legal aid and other support services. They’re needed to help her file a Domestic Incidence Report [DIR] and ensure its circulation to the competent police station to initiate an investigation. Protection Officers are also required to assist courts as well as Magistrates in discharging their functions. Non-Governmental Organisations (NGOs) or voluntary associations working for women’s rights can serve as ‘Service Providers’ by registering themselves with the State Government. Service Providers and Protection Officers must assist aggrieved women to get shelter, medical aid and ‘protection orders’ wherever required. Of course, they proceed on behalf of the aggrieved woman if she consents to it.

The Magistrate, in the meanwhile, could also recommend the aggrieved woman, and in some cases both her and the respondents, to counsellors or seek the assistance of a family welfare expert to arrive at a possible reconciliation. If this does not work out, the court may pass any interim order (discussed above) as it may deem fit.

The court may then proceed to evaluate all the arguments, analyse the evidence, and pronounce a final order. A party, if dissatisfied with any order of a court could prefer an appeal with a higher court. It is envisaged that every domestic violence case is treated with requisite urgency and is disposed of in a time bound manner.

Proceedings under the Domestic Violence Act

Despite the comprehensive provisions under the PWDVA, challenges towards full and effective implementation that mirror the intent and provisions of the Act remain.

Shared household:

In 2006, the SC heard one of the first cases with sections of the PWDVA being invoked. Taruna and S.R. Batra were married in 2000. After their marriage, the couple lived together in a flat with the husband’s mother. In 2003, Taruna left the marital home due to an altercation with her husband. When she tried to return, she found the main entrance locked. She, therefore, filed an injunction with the courts to allow her access. In the meantime, her husband moved to a separate flat and filed for divorce, but his mother continued to live in the same flat. The High Court granted Taruna Batra residence in the flat she had lived in as the wife of S.R. Batra. It reasoned: “mere change of the residence by the husband would not shift the matrimonial home from Ashok Vihar, particularly when the husband had filed a divorce petition against his wife.” This interpretation is consistent with the provisions of the PWDVA: it recognizes that a shared household as provided for was the marital home where Taruna “lives or at any stage has lived in a domestic relationship either singly or along with the respondent” and that the household “may belong to the joint family of which the respondent is a member, irrespective of whether the respondent or the aggrieved person has any right, title or interest in the shared household.” Further, it recognized that section 19 states that neither the respondent nor his family members could dispossess a woman from her marital home.

When the case came on appeal to the SC, the judges ruled: “If the aforesaid submission is accepted, then it will mean that wherever the husband and wife lived together in the past that property becomes a shared household. It is quite possible that the husband and wife may have lived together in dozens of places e.g. with the husband’s father, husband’s paternal grandparents, his maternal parents, uncles, aunts, brothers, sisters, nephews, nieces etc. If the interpretation canvassed by the learned Counsel for the respondent is accepted, all these houses of the husband’s relatives will be shared households and the wife can well insist in living in the all these houses of her husband’s relatives merely because she had stayed with her husband for some time in those houses in the past. Such a view would lead to chaos and would be absurd. It is well settled that any interpretation which leads to absurdity should not be accepted.”

This is inconsistent with the purpose of the Act generally and section 19 specifically. The wide definition accorded to a shared household should be read to encompass the wide variety of potential marital homes a woman may live in. If the court felt that this was too broad a definition and vulnerable to misuse, they could have suggested that a shared home is read to understand one marital home.

Inequality before the law?

In India, women are able to claim maintenance under both the PWDVA and under Sec. 125 of the Code of Criminal Procedure. Any successful claim for maintenance will usually need a document to prove the income of the woman’s husband. If a woman is no longer living with her partner, it is unlikely that she’ll have access to such a document and these may be impossible to find. As the court can only rule on the evidence presented to it, maintenance orders provide far less than the amount claimed for and arguably less than an amount to be “consistent with the standard of living to which the aggrieved person is accustomed.” If the evidence produced before the Court is not ‘equal’ due to the absence of documents she is unable to procure, the Court’s decision will result in reinforcing inequality.

The Act states that a “Magistrate may direct the employer or a debtor of the respondent, to directly pay to the aggrieved person or to deposit with the court.” An additional provision may be added to the Act that if no title deed/salary certificate is presented as part of a maintenance claim, the court must subpoena the said document, or in the case of cash-in-hand employees, a certified statement from an employer regarding the respondent’s income. Such a measure may play a key role in equaling the playing field when cases go to court.

In recent years, there’ve been measures to push matrimonial cases towards mediation. Although mediation is affordable and less adversarial, it is also problematic. Mediation centres are unable to enforce certain provisions of the Act, and a lack of centralized record keeping makes it hard to know which aspects of the Act are being encouraged as part of the agreement and which are being complied with.

Conclusion

Despite the various remedies provided by law to ‘combat’ domestic violence, this evil continues to take place across the country. If the National Crime Records Bureau statistics are any indicator, every hour sees about one dowry death in India.

Lawmakers have enacted more stringent criminal laws as well as more victim-centric and convenient civil remedies that adopt a rehabilitative and protective approach. Information dissemination, awareness generation and widespread campaigning are needed to work in tandem with laws and judicial orders for any degree of amelioration. Legal literacy needs to be created not only with respect to informing women of their rights but also with respect to accessing the legal procedure to seek such remedies that would be most appropriate for their cases and situation.

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