The discussion on the Protection of Women from Domestic Violence Act, 2005 (PWDVA, the Law or the Act), should be preceded by the context in and the International framework from which the Act came into force.
Violence Against Women (VAW) has been, and still continues to be, one of the most wide ranging yet surprisingly under-recognised Human Rights violations. Taking into consideration the gravity and varying forms of abuse that women are being subjected to, it is apparent that acts of VAW are not isolated events in a particular society or culture but are, in fact, a global phenomenon which circumvent socio-economic structures and educational classes.
It is only in recent years, due to the untiring efforts of the International women’s rights movement, that VAW received the attention it deserved. This led to the drafting of various legislations dealing with VAW, such as the Vienna Accord, Beijing Declaration and the Convention on the Elimination of all forms of Discrimination Against Women (CEDAW).
In the year 1993, with the adoption of the United Nations (UN) Declaration on Elimination of Violence Against Women, International law defi ned the concept of VAW for the fi rst time as “any act of gender-based violence that results in, or is likely to result in, physical, sexual or psychological harm or suffering to women, including threats of such acts, coercion or arbitrary deprivation of liberty, whether occurring in public or in private life.” This acknowledgement of VAW in the private sphere has given International focus to domestic violence as an unacceptable human rights violation.
Domestic violence is indeed one of the most hidden and tragic forms of VAW as it takes place in the sanctity of the home, at the hands of someone who is in an intimate relationship
with the woman and professes to or ideally should love and care deeply for her. In the Indian context, as a result of deep-rooted cultural norms and patriarchal values, domestic violence is viewed as a private family matter that should be settled within the home without any need for ‘unnecessary’ external intervention. It is a burden that women are expected to bear in silence rather than ‘shame’ the family. This systematic violence, indirectly condoned by existing societal attitudes, values and culture, forces gender inequality and curtails women’s freedom.
Historically, women were viewed as homemakers while men were viewed as breadwinners. Although this is changing, with more and more Indian women educating themselves, engaging in employment and becoming high profi le public fi gures, the change in societal attitudes has been slow. This is evident from the visible public reluctance to recognise women as equal stakeholders. Therefore, inflencing societal mindsets is an ongoing struggle for the women’s rights movement in this country.
As such, this ‘social malaise’ needed to be addressed by the enactment of a suitable legislation. It was hoped that, in the long term, this legislation would ameliorate public silence and passive tolerance surrounding the issue of domestic violence and act as an instrument of social change.
Prior to 2005, there was neither a clear legal defi nition of domestic violence nor any law in India that specifi cally addressed it. In order to create a framework from within which the concept of domestic violence could easily be recognised to prevent its occurrence, there was a need for a comprehensive description of what constituted domestic violence.
Although remedies were available in the form of civil laws such as those dealing with divorce and criminal laws such as Section 498A Indian Penal Code, 1860 (IPC), which acknowledged cruelty within marriages, these were limited in their approach and did not address the need for immediate relief and support — a prime requirement of women facing domestic violence.
Due to embedded cultural values, even the limited legal remedies available in cases of VAW, such as Section 498A IPC, were restricted to married women. There was no relief available to women in other domestic relationships such as mothers, daughters, women in live-in relationships and others facing domestic violence. It is also important to note that registration of marriage was, and still is, not compulsory and that many marriages were contracted under personal/customary laws. Therefore, prior to the enactment of a specific legislation that dealt with domestic violence, women were often unable to prove existence of marriage and avail necessary remedies.
In India, one of the most commonly occurring problems in cases of domestic violence is the dispossession of the dependent female from the shared household. In a patriarchal society such as ours, usually only male family members are given possession of the premises and it therefore, becomes easier to dispossess the dependent wife, daughter, mother and so on, as the case may be. This is specially so because the Indian matrimonial regime does not confer property rights on a woman upon marriage.
Key Features of the PWDVA
The International Human Rights regime recognises an individual’s right to life and the right to live that life with dignity. This is refl ected in various provisions contained in International legislation such as “All human beings are born free and equal in dignity and rights,” “Everyone has the right to life, liberty and security of person” and the recognition of “the urgent need for the universal application to women of the rights and principles with regard to equality, security, liberty, integrity and dignity of all human beings.”
Indian law also recognises the right to life in Article 21 of the Constitution. Although it appears to be limited in scope, judicial interpretation has given this right positive effect and extended it. For instance, in the landmark judgment of Visakha v. State of Rajasthan, the court held that sexual harassment in the workplace is a violation of Articles 15, 19 (1) (g) and 21 of the Indian Constitution. Unfortunately, efforts made by the Indian Constitution to guarantee women an equal status in society have not been able to fully address the extent of indignity suffered by women as a result of domestic violence. The PWDVA therefore, attempts to address this gap in the Indian legal system by unambiguously recognising a woman’s right to a violence-free life by classing domestic violence as a Human Rights issue and a deterrent to development.
One of the most unique features of the PWDVA is that whilst it is primarily a civil law, an element of criminal law is incorporated within it to ensure more effective implementation. Both civil and criminal laws have their inherent limitations, such as protracted proceedings in the case of civil law and punitive focus in criminal law. The PWDVA seeks to rectify the same. Reliefs granted under the PWDVA are civil in nature, however, upon breach of civil orders by the perpetrator, criminal aspects come into effect, resulting in imprisonment and/or fine.
Defi nition of Domestic Violence
This Act also goes on to provide, for the fi rst time, a comprehensive defi nition of domestic violence that encapsulates the diverse forms in which it occurs. The drafters of the PWDVA have been very careful to follow internationally accepted legal principles so as to leave no doubt as to its validity. For instance, it incorporates defi nitions such as “Violence against women shall be understood to encompass…physical, sexual and psychological violence occurring in the family, including… dowry-related violence, marital rape… non-spousal violence…” and “All acts of gender-based physical, psychological and sexual abuse by a family member against women in the family, ranging from simple assaults to aggravated physical battery, kidnapping, threats, intimidation, coercion, stalking, humiliating, verbal abuse, forcible or unlawful entry, arson, destruction of property, sexual violence, marital rape, dowry or bride-price related violence… shall be termed “domestic violence.” It is also important to note that in the absence of a legal recognition of marital rape in India, the inclusion of sexual abuse within the definition of domestic violence in the PWDVA has categorised sexual abuse within marriage as a form of violence.
Right to Reside
The PWDVA seeks to address the non-recognition of a woman’s right to residence in the shared household. Whilst the right to reside is not a new concept in Indian Law, previously, this right has never been clearly defined. Section 17 of the PWDVA grants this right to the Aggrieved Person (AP). However, it is vital to understand that the right to reside granted to the aggrieved woman does not confer on her a right of ownership over the property. It is merely a procedural safeguard against dispossession.
Relationships in the Nature of Marriage
The recognition of ‘relationships in the nature of marriage’ as a type of domestic relationship under the PWDVA is also a hitherto unprecedented legal step forward. This provision affords protection against domestic violence to women in live-in relationships, legally void/voidable marriages and common law marriages. Thus, it enables women who are in bigamous or fraudulent marriages, who would otherwise have no remedy, to seek reliefs. Whilst this provision has invited much criticism and controversy, it is important to note that it does not make an invalid marriage valid or provide legal recognition to bigamous marriages. In a recent case where the constitutionality of the PWDVA was challenged on the ground that it jeopardises the rights of the legal wife, the court held that there was no reason why equal
treatment could not be meted out to a legal wife, common law wife, or mistress “like treatment to both does not, in any manner, derogate from the sanctity of marriage …” This provision merely seeks to denounce domestic violence in any quarter. It is not a judgment call on the morality of the choice to cohabit outside of marriage.
Mechanism under the Law
This Law also attempts to provide women facing domestic violence easier access to court. It imposes an obligation on state governments to put in place support structures to help the women by introducing new authorities under the Law such as the Protection Offi cer (PO) as the key implementing agency of this Law. Despite the civil nature of the PWDVA, the Police are also expected to play a very important role under the Act. The Law also puts into place Service Providers (SPs) registered under the Act, notified Shelter Homes and Medical Facilities, and Counsellors to conduct counselling on the direction of the court, and Welfare Experts to assist the court.
Single Window Clearance
Not only does the PWDVA hope to provide women easier access to justice, but in recognising the urgent need for reliefs sought, it also ensures speedier access. It puts into place a single window clearance system for women facing domestic violence. Previously, a woman had to seek different reliefs from different courts and this was both time consuming as well as dangerous given the threat to life encountered in most cases of domestic violence.
The PWDVA grants a woman a number of reliefs and she is thus, able to avail support as per her requirements.
- Protection Order is an injunctive order granted to prevent domestic violence or the threat of domestic violence.
- Residence Order protects against dispossession from the shared household, prevents any act that impacts upon peaceful occupation of the same and where the need arises, makes provision for alternate accommodation.
- Custody Order is a temporary order granted until such time as the parties’ parental rights are resolved in a separate civil proceedings.
- Monetary relief and Compensation Order are both remedies which are financial in nature. However, the main difference is that the former is intended to meet expenses actually incurred whilst the latter is meant to compensate for injuries caused above and beyond actual monetary loss or expenditure such as depression suffered as a result of being subject to domestic violence.
- Interim and ex-parte orders can be granted prior to final orders on proof of a prima facie case. The provision of immediate reliefs allows the woman the much needed violence-free environment to help her make an informed and well thought out decision on how to proceed.into place a single window clearance system for women facing domestic violence. reviously, a woman had to seek different reliefs from different courts and this was both time onsuming as well as dangerous given the threat to life encountered in most cases of domestic violence.
The PWDVA also imposes a duty on key players such as Police, POs, SPs and Magistrates to inform the woman facing domestic violence of her rights upon receipt of Complaint. Thus, she is made aware of her right to make an application for relief under this Act, availability of services of POs and SPs, her right to free legal aid and right to fi le a complaint separately/simultaneously under Section 498A IPC as the PWDVA exists in addition to and not to the exclusion of other laws.