Last Updated on March 9, 2022 by Administrator
Authored By– Shianjany Pradhan
2nd Year Student, BA LLB Hons.
Symbiosis Law School Noida
Violence against women and girls is a problem of pandemic proportions. At least one out of every three women around the world has been beaten, coerced into sex, or otherwise abused in her lifetime with the abuser usually someone known to her– Kofi Annan
In the early Vedic era, women were placed on a high pedestal in society. Gradually with the emergence of property, as human beings turned from, pastoralists to landowners, the whole issue of equating women with property started coming up. With this came the subjugation of women and in extreme cases, subjecting them to cruelty. One such extreme is the violence that was being conducted within the four walls of the house. Earlier, it was not considered respectful, for a woman to bring such issues in front of society, as it would amount to bringing shame to the family as they had to maintain their marriages at all costs. Slowly and steadily, such problems started being recognized. During the 1930s and 1940s, many women’s groups emerged with the issue and started aligning themselves with the Indian national movement that was going on at that time. It was in 1971, when the united-nations told the government of India to come up with a report on the legal machinery of the country and the results of the report were shocking, which showed the miserable conditions of the women, facing inequalities and atrocities, beginning at their homes.
Protection of women from domestic violence act, 2005
As a result of the developments, the government inserted section 498 A in the Indian penal code which said, anybody, being the relative of the husband, subjects the women to cruelty, will be punished. Along with this, the government also added section 304B, where the government defined dowry death, saying, if a woman dies within 7 years of her marriage, due to bodily injuries or burns, then the family or the husband, will be held liable for dowry death. Such measures did not prove to be successful, as domestic violence became an intrinsic issue, which needed a complete framework for eradicating the problem from the roots. This was realized and in 2005 the government came up with the protection of women from the domestic violence act (PWDVA), which got adopted in 2006. PWDVA has been landmark legislation. It defines what is a domestic relationship. This event opened the way for recognizing live-in relationships in the nature of marriage. As per section 2(f) of the act, a domestic relationship goes on to include –
- Relationships that are arising out of consanguinity which means blood relationships
- Relationships by affinity, which means a relationship that arose out of marriage
- Relationship in the nature of marriage, which means live in relationships
- Relationship created out of the adoption
- Joint family members
Even a female, who was in a shared household, before the coming up of this act will also be included in the act, as it was said by the court in V.D. Bhanot v. Savita Bhanot[1]. The act is not confined just to the wife, but all the females that will be coming under the domestic relationship, even the live-in-partner, but it is to be noted that it cannot be just any living partner. The interpretation of the term wife in the case of live-in relationships first came up in the case of Chanmuniya v. Virendra Kumar. In this case, the term wife as mentioned in the act was interpreted in the widest possible terms, to accommodate even the female live-in partner. This was taken ahead in the case of D Veluswamy v. D Patchiammal[2], where the court defined what comes into the nature of marriage so that a woman in a relationship can claim maintenance under section 125 of the crpc, and the PWDVA. The court also highlighted in the discussions that, the relationship must be long enough, stretching over to a long period, where the couple has been residing as husband and wife, the restriction to the same being that they should be in a position, where they can legally get married. In the case of Indra Sarma v V.K.V Sarma[3], where the husband was living away from the family for a very long time, and with another woman, but was still married, suddenly, deserted the woman with whom he was living. She filed a case for the same, and it was said by the court, that the man was still married, which would not allow his second relationship to be in the nature of marriage. This shows how the horizons were broadened by the act and yet the institution of marriage was preserved.
Section 3 of the act, defines what constitutes violence. These are: –
- Physical abuse, which means the bodily hurt and injuries that were caused to the woman
- Mental and verbal abuse, anything which affects the psyche of the aggrieved party. This takes into account the emotional aspect of domestic violence.
- Economic abuse, which amounts to exploiting the aggrieved party economically or to rather not providing them with adequate economic means, to sustain themselves.
- Sexual abuse, which means any abuse which is sexual.
Domestic violence can be said to be the power possessed by one which is used to subjugate the other, within the confinement of the domestic relationship. Within the PWDVA, any woman who has been subjected to any such cruelty, by the husband or his relative, may file a case under the PWDVA. Not just the woman, even the child with the woman, can be made a co-applicant if they are also subjected to some form of cruelty. They are also entitled to relief under the PWDVA. On the other hand, a respondent can be the husband as well as his relatives which can be both male and female. Initially, in the act in section 2(d), the definition of respondent included “any adult male”. Later, in the case of Harsora v. Harsora[4], an issue was raised in the court, regarding the word adult male, violating article 14 of the constitution. In its judgment supreme court said that limiting the respondents just to the male, will ultimately, limit the objectives of the PWDVA. It was said, that women can be subjected to cruelty by anyone in the house, both male and females and it also agreed the law being violative of Article 14, therefore, it deleted the word adult male. Though, after this, various debates did arise, regarding the act of the court being ironic, as the act aims to protect women and then respondents including women, would defeat the meaning.
Rights and the duties of various authorities
Section 5 to 11 of the act talks about the duties that have been assigned to various authorities. As per section 5, police or a protection officer gets any complaint regarding domestic violence, they have to inform her about all the rights that will be available to her, including the services that will be provided by the legal aid authorities. Proper duties of shelter homes have also been assigned[5]. They have to provide, medical, food, clothing facilities to the aggrieved. If the woman fears society in any way, then she has to be granted protection in the shelter homes. Even the duties of the medical facilities are stated in the act. As per section 9 of the PWDVA, a list of duties of the protection officer is mentioned. It tells how the complaints can be filed by the protection officer on behalf of the aggrieved party. It also has the function to provide assistance to the magistrate and also ensure that the right help is provided to the female. They are also liable to ensure that the females are given proper protection and facilities in the shelter homes. Further, in section 10 all the duties of any recognized service provider which is registered under the companies act or the societies registration act, are mentioned. And lastly, the duties of the central and state governments are defined in section 11 of the act, which includes taking proper measures to ensure that the act is complied with and even taking measures to induce timely sensitization and awareness among the judicial magistrates and ensure the coordination between all the departments that will be involved in any of the stages.
Procedures involved
The procedures which are involved are mentioned in chapter 5 of the act. Firstly, an application will be presented in front of the magistrate, by the aggrieved person herself or any other person on her behalf. The same can also be done by the protection officer. After receiving such an application, the date of hearing will be fixed by the magistrate but a limitation is placed on the same, that date should not go beyond 3 days since the application was made. After the same, a notice will be issued containing the date of hearing and then it will the duty of the protection officer to ensure that the same is presented to the respondent so that they can appear on the said date for hearing. This has to be done within 2 days from the issuance of the notice. If the court feels that counseling has to take place then the court can tell either of the parties or both of them to undergo counseling and if the same is done then the next date for the hearing will be within 2 months. As per section 17, assistance can be taken by the welfare experts. As per the act, the proceedings have to be held on camera. And an appeal from the sessions court has to be made within 30 days.
Orders and its types that are granted by the court
When the matter reaches the court, it can grant different types of orders depending upon the situation. They are: –
- Protection orders – After hearing both the parties, when the court feels that there is a need for protection being granted to the woman, as the domestic violence may further take place again, then the protection order is granted by the court. Through this, the respondent can be restricted from alienating the woman from any assets, for example, a bank locker or the stridhan.
- Residence orders – If the court feels that there is a need and the woman needs to be provided a residence then the court can order for the same. in this, if a woman has been disposed of her house, then the same is returned to her and the relatives and the husband are not allowed to do the same. Also, if there is a need then there can also be a restraining order to restrict the members of the family from coming into the area where the woman is residing. The court can even order the respondent to leave the house where the woman is residing so that a safe environment is created for the woman[6].
- Monetary relief: – If the court feels that the woman is in dire need of economic relief or medical aid, then the court can direct the husband for paying the same. It has to be fair and reasonable and should take into account the standard of living of the woman. This also includes the maintenance orders that are provided under c.r.p.c
- Custody orders: – The court can also give way for custody orders if the aggrieved party has a child and can grant visitation rights to the respondent, depending upon the circumstances.
Apart from all of this, the court can also grant compensation orders for the distress that was caused to her or medical aid or support that needs to be provided. The court provides copies of the order free of cost to the parties. as per section 25, if the court feels that a change in circumstance has taken place, then it can even alter the orders granted by it.
PWDVA and domestic violence laws in other countries
In India, where we have an extensive framework for the prevention of domestic violence, it is still surprising to observe that there are some countries where there is no domestic violence law to this date. One such nation is Russia, which has always played a major role in global geopolitics. Apart from Russia, there are countries like Chad, Yemen, Sudan, Haiti, etc. which have not passed any domestic violence law. Most of these nations are in the middle-east, West Asia and Sub-Saharan Africa. On the other hand, there are countries like the U.S, which is considered to have the most powerful domestic violence law. Violence Against Women Act of America was outlined in the year 1994 to curb domestic violence against women. Like the PWDVA, an intimate partner or a partner who is having a parental relationship with the child of the victim is recognized as a spouse under the VAWA. A huge leap was made by this act, as it leads to the implementation of severe penalties for inflicting violence upon women so that protection of women is ensured at all costs. These penalties were strengthened in 2000 with regards to domestic violence and stalking so that the victims get justice at all costs. Not just this, but grants are also provided by the act, which is a mechanism to provide streamlined services or facilities to all the victims. Even in PWDVA, there is a compensatory mechanism but the same is more streamlined in VAWA. Every government office needs funding, so the same is also provided in addition to the training programs, that are facilitated under VAWA. There is also an office of violence against women which works under the department of justice, specifically targeting vulnerable women. This shows that a more institutionalized focus has been made on the issue of domestic violence in comparison to India, but it is also important to note that PWDVA has had its share of achievements and that too in a short period. Since India has emerged as a major power in the south Asian region, it is equally important to understand the status in the other countries of the SAARC region. Our neighboring country Pakistan, got its domestic violence act in the year 2020, which has been considered as a delayed agenda as it concerns a very important issue of violence inflicted upon women. The domestic violence act of Nepal and Bangladesh are also almost on similar lines as of India. When it comes to the United Kingdom, then it has the domestic abuse act of 2021, which was in the shape of a bill in 2017. Here too the formalization of this act of violence upon women has been late, but the measures in this act are impactful. For example, domestic violence victims can get a lifetime tenancy at the place where they are tenants. Apart from some countries, sooner or later, many countries have recognized the crime of domestic violence and have implemented measures to curb it. When it comes to a comparison between the PWDVA and the domestic violence law in other nations, a thing has to be kept in mind that not all the societies are same. therefore, the mechanism to tackle any problem will be different in these societies. Therefore, we can just draw a comparative analysis but can’t say which country is faring in a better manner.
PWDVA, as said earlier is landmark legislation, but there are two sides to every coin. It is very important to realize that women’s satisfaction from this act is just 37 percent. Moreover, during the pandemic, a surge has been seen in the cases of domestic violence as there has been a rise in the calls made to the helpline numbers. Many times, the protection officers, are found not providing adequate relief to the aggrieved woman. as per section 33 of the act, the penalty is imposed upon the protection officer, if they do not perform their duty, though no arrest can be made for the same until a complaint is filed. It is also very important to check to what extent awareness campaigns are taken up to inform the magistrates. This tells, that the implementation of the act still lags. It is reported that many times women are granted maintenance when they are actually in need of protection and separation. It is to be understood that maintenance can never be adequate compensation for the violence that a woman goes through. Since the act empowers the legislatures to make rules for the correct implementation, reform can be done to put a check, to see whether adequate relief reaches the woman and the motive of the act is fulfilled. Domestic violence has always been an issue of social concern. In 2008, the ring the bell, or bell bajao movement was started, where if a person heard or witnessed any domestic violence taking place in their neighborhood. In 2020, as per the NCRB data, 22 732, housewives, had taken their own lives, and much of this has been owed to domestic violence. This had the highest rate of increase during the covid 19 period. as per the reports of UN women, there has been an increase in the calls made on the helpline numbers. Even before the pandemic, 1 in every 3 women faced domestic violence. At times, drugs and alcohol become the aggravating reasons behind domestic violence. And to curb all this, we have the domestic violence act. It is said, that the efficacy of the act is doubted since, many cases do not reach the court, so then the role of legal aid institutions becomes big, to facilitate the access of the legal framework to aggrieved. Such violence needs to be reported and ended, as they impact the society, as well as they, have a long-lasting impact on the aggrieved as well as the children born out of the relationship. “Overcoming abuse does not just happen, it takes positive steps every day. let today be the day”.
[1] VD Bhanot v. Savita Bhanot (AIR 2012 SC 965)
[2] d veluswamy v d patchiammal AIR 2011 SC 479:
[3] Indra Sarma v. V.K.V. Sarma, AIR 2014 SC 309:
[4] Hiral P. Harsora v. Kusum Narottamdas Harsora & Ors AIR 2015 SCC 4774
[5] Section 6, PWDVA 2005
[6] Sabita Mark Burges v. Mark Lionel Burges 2013(4) ABR542
https://www.bbc.com/news/world-asia-india-59634393
Protection of women from domestic violence, Act, 2005
