Protection of Women from Domestic Violence Act 2005—An Appraisal

This research paper critically evaluates the PWDVA 2005. Violence against women has been acknowledged both nationally as well as internationally as a violation of human rights of women, something that impairs the overall development of women. This paper is divided into three parts. The first part of the paper gives a brief history of various IPC (Indian Penal Code), CrPC (Criminal Procedure Code) and Civil Law protections available to women against violence in India. The second part deals with the need to have a new law on domestic violence. And the last part critically evaluates the PWDVA (Protection of Women from Domestic Violence Act) 2005, with special emphasis on its ability to protect the human rights of women.

Introduction

Violence against women is a centuries-old phenomenon that has been perpetrated in the name of religion, social customs and rituals. The violence may manifest itself in different forms, like child marriage, witch-hunting, honour-killing etc. Many a time violence against women is due to defiance of the stereotyped role model of daughter, sister, wife and mother and, of course, as daughter-in-law. It is not the focus of this paper to go into the details of the numerous kinds of violence justified by as many reasons.

Resistance to domestic violence is a recent phenomenon. In the modern age voices have been raised against these inhuman practices and efforts made to bring about change by creating awareness, by educating people and, of course, through legal actions/reforms.

While talking about India, it is Raja Ram-mohan Roy who can be called the pioneer of the movement for women’s rights. He was to a great extent responsible for bringing about socio-legal changes pertaining to the de-legitimisation of child marriage1, sati2 and legitimisation of widow remarriage3. Roy’s mobilisation of Hindu thought against the system of sati created the necessary public opinion to make the practice a criminal offence in 1829.4

Though the term ‘domestic violence’ was not in vogue in those reforms, nevertheless their aim was indirectly responsible for making the woman’s life more humane and protecting her against domestic violence. Even during the colonial period there were provisions under the IPC and CrPC that aimed at providing protection to women against violence.5

IPC and CrPC Provisions on Domestic Violence

Till 1983 there were no specific legal provisions pertaining to violence within home. Husbands could be convicted under the general provisions of murder, abetment to suicide, causing hurt and wrongful confinement.

In Section 304B, IPC, where the death of a woman is caused by burns or bodily injuries or occurs due to reasons other than normal circumstances within seven years of her marriage and if it is established that the wife is subjected to cruelty by her husband or his relatives, the death is termed as ‘dowry death’. The husband or relatives who subject the wife to cruelty is/are presumed to have caused the dowry death and will have to prove that the death was not a result of the cruelty.

Sections 313-316, IPC—female infanticide, or forcing the wife to terminate her pregnancy—are also forms of domestic violence recognised as offences under the IPC.

According to Section 305, IPC, often victims of domestic violence, especially brides harassed for dowry, are driven to commit suicide. Abetment of suicide of a delirious person is an offence punishable with death or life imprisonment. Abetment of suicide is also an offence punishable with ten years imprisonment (Section 306).

Under Section 319, causing bodily hurt is a common form of domestic violence. The IPC defines hurt as causing “bodily pain, disease, pain or infirmity to any person”. A hurt may be ‘grievous’ if it results in serious injury such as a fracture, loss of hearing or sight, damage to any member or joint, etc. (Section 320).

The IPC makes it an offence to voluntarily cause hurt (Section 321) or grievous hurt (Section 322 read with Section 323, IPC). Also criminalised is voluntarily causing of grievous hurt by dangerous weapons (Section 326, IPC) and voluntarily causing hurt to extort property (Section 327, IPC).

Another common form of domestic violence is in the form of the wrongful restraint (Section 349) or confinement (Section 340) of the spouse within her matrimonial home. Use of force6 and assault7 on the spouse, other common forms of domestic violence, are also punishable under the IPC.

In 1983, matrimonial cruelty was introduced as an offence in the IPC (Section 498A, IPC). Cruelty was defined as “any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman”. It includes harassment of the woman in connection with demands for property and the like.

The Dowry Prohibition (Amendment) Act, 1986

Dowry death or related harassment is a unique kind of crime practised in the Indian subcontinent. A legal ban was put on the practice of dowry way back in 1961 (Dowry Prohibition Act, 1961). The Act was amended 1984 and then in 1986 to make it more stringent.8

The Commission of Sati Prevention Act, 1987

‘Sati’ means the burning or burying alive of a widow along with the body of her deceased husband or any other relative, or with any article, object or thing associated with the husband or relative.9 The practice of ‘sati’ was declared unlawful during the colonial period itself. No Act, however, was drafted in post-colonial India to prohibit the occurrence of sati. It was only after the shocking incidence of sati in Rajasthan in 1987 that a law was enacted in 1987; that Act declares the observance, support, justification or propagation of sati as criminal activity.

The Pre-Natal Diagnostic Techniques

(Regulation and Prevention of Misuse) Act, 1994

It is not only that women face violence during their lifetime but also even before birth. Female foeticide using the Pre-Natal Diagnostic Technique is widely prevalent in India.10 A law was drafted for the purpose of curbing female foeticide unless medically required.

Civil Law

In India the problem of domestic violence has always been looked upon from the perspective of both criminal and civil laws. Under Indian civil law also several provisions are available to deal with different types of domestic violence.

Dissolution of Muslim Marriages Act,
1939 (DMMA)

The DMMA stipulates cruelty as a ground for divorce. Cruelty is defined to include11

• Habitually assaulting the wife or making her life miserable by cruelty of conduct even if such conduct does not amount to physical ill-treatment

• Associating with women of ill-repute or leading an infamous life

• Attempting to force the wife to lead an immoral life

• Disposing of the wife’s property or preventing her from exercising her legal rights over it

• Obstructing the wife in the observance of her religion

The Hindu Marriage Act, 1955 (HMA)

Under the HMA, cruelty is a ground for divorce12 as well as judicial separation (Section 10, HMA). However, the term ‘cruelty’ is not defined in the HMA. It is through decided cases that the term has been understood to mean acts of physical as well as mental cruelty.

Other Matrimonial Laws

The Special Marriage Act, 1954 (SMA)13, the Indian Divorce Act (IDA)14, and the Parsi Marriage and Divorce Act (PMDA)15—all allow ‘cruelty’ as a ground for divorce. However, all these laws are not sufficient as they do not elaborate the nature and extent of domestic violence.

Drafting of Domestic Violence Act 2005: Needs and Challenges

The phenomenon of domestic violence is basically rooted in the socio-cultural fabric of India. Indian society is highly patriarchal. It not only discriminates between a son and a daughter but also the former is highly preferred and latter unwanted. In many cases preference for a male child is so intense that it results in the death of a female foetus. Gender discrimination culminates into and is manifested in various types of violent practices within ‘home’. Since ‘family’ and ‘home’ denote ‘private space’, an area free from state as well as non-state interventions, therefore, domestic violence has largely remained free from legal restraints and remains even unacknowledged as a crime. Even if there were laws, victims were hardly taking recourse to law as women are socialised right from their childhood in patriarchal values. Consequently violence within ‘home’ and by their own relatives is not perceived as a crime or something wrong by women themselves. Thus the law was simultaneously used for the twin purposes of guaranteeing ‘equality’ (Articles 14-18 of India’s Constitution declare sex based equality as a Fundamental Right) on the one hand and also to legalise the ‘private space’ by not making a law exclusively on domestic violence on the other hand. The state has also failed in making required arrangements like sensitisation of masses; bringing the entire family in the purview of the domestic violence law; legal awareness, economic empowerment of women etc. for preventing the occurrence of domestic violence. The state, despite declaring women at par with men, really did not do much until the decade of the 1990s for making women safe in the so-called ‘poor man’s castle’, that is, home.

As mentioned earlier, before 1983 there were no specific provisions pertaining to violence within the home. Husbands could be convicted under the general provisions of murder, abetment to suicide, causing hurt and wrongful confinement. But none of these provisions take into account the real problem of domestic violence in its totality, that is, in terms of its magnitude, type and of course nature of perpetrators. All these provisions target only the ‘husband’ and ‘in-laws’ as perpetrators or else only the violence faced by the daughter-in-law was addressed. The domestic violence faced by the daughter, sister, mother, girl friends etc. was all missing and they were denied legal protection. Also the violence committed by the husband and in-laws had to be proved ‘beyond reasonable doubt’. Since the crime is committed within four walls of the house, getting witnesses to corroborate their evidence is extremely difficult. Besides complaints can be registered only after an offence has been committed. But in cases of domestic violence the woman is living with her assaulter and on whom she is emotionally dependent. Over and above these, the attitude of the law-enforcement agencies is highly non-cooperative. Since the problem of domestic violence is rooted in social values and cultural practices that shape the attitude of police as well, therefore many a time the police refuses to register the cases of domestic violence. The law enforcement agencies also presume that the husband has a right to beat his wife.16

During the Fourth World Conference on Women at Beijing, the world community reaffirmed the rights of women as an integral part of the international human rights paradigm. During this Conference, 189 UN member-states adopted the Beijing Declaration and Platform for Action which specified the need to take steps to eliminate violence against women. Under its guidance the Government of India undertook some steps to protect women against domestic violence.17

In view of the fact that domestic violence is not simply a legal problem, the Indian the state adopted a number of legal as well as non-legal measures to combat or to enable women to combat violence against them.18

Under the non-legal measures the following steps were initiated:

1. Gender Sensitisation of police force; setting up of all-women police stations; Voluntary Action Bureaus and Family Counselling Centre in police stations; regular “Gender Sensitisation” programmes included in the regular programmes of the National Judicial Academy.

2. Women Empowerment and Rehabilitation Schemes were given special emphasis, for example, (a) ‘Swadhar’, a scheme for holistic rehabilitation of women in different circumstances like destitute women, widows deserted by their family, women released from prison, trafficked girls or women rescued from brothels, victims of sexual crimes;19 (b) helplines for women in distress; (c) family courts to adjudicate cases relating to maintenance, custody and divorce; (d) Parivarik Mahila Lok Adalat (PMLK) evolved by the National Commission for Women (NCW) is an alternative justice delivery system which is a part of the Lok Adalat (peoples’ court) for speedy justice.20

3. Amongst the non-state interventions develop-ment of ‘community based strategies’ for combating domestic violence have been employed like neighbourhood committees; Mohalla committees etc. ‘Nari Adalat’ and ‘Mahila Panch’ have emerged out of collectives formed under the ‘Mahila Samakhya Programme’ in select districts of UP and Gujarat which use community pressure and social control and system of punishing the perpetrators’ of violence within the family. Similar groups, working on the same lines, are the ‘Sahara Sangh’ in the Tehri Garhwal district of Uttaranchal and ‘Shalishi’ (traditional system of dispute resolution) in West Bengal. Other examples of such community policing initiatives to combat domestic violence are the ‘Mahila Suraksha Samiti’ and ‘Women State Committee’ in Gujarat which operate at district and the State levels. They are basically concerned with strategies to promote prevention, pressurise state bodies and mobilise public awareness programmes.21

4. Legal awareness programmes initiated by the NCW in 1996.22

However, all these efforts failed to make a pan-Indian impact on a consistent basis.

Legal measures taken by the Indian state included (1) review of the existing law, (2) drafting new laws if needed. In fact the PWDVA 2005 was a product of this strategy of the state to combat domestic violence.

Protective Measures for Women under PWDVA 2005

While most of the Western countries passed laws against domestic violence in the 1970s, in India only violence in matrimonial relationship, particularly dowry related violence, remained the focus of the women’s movements as well as that of legislative institutions. It was since the 1990s that efforts were being made to draft a bill on domestic violence exclusively.

In the light of the “Government of India Report on Platform for Action: Ten Years after Beijing” and the crime scenario prevailing in the country the need was felt for an exclusive law on domestic violence. Initiatives in this direction began with the collaborative efforts of the UNIFEM and Lawyers’ Collective Rights Initiative (LCWRI). A delegation of representatives from women’s groups and State Women’s Commissions met the then HRD Minister regarding the need to enact a law on domestic violence.23 It finally resulted in the drafting of the Bill on domestic violence, that is, “Protection of Women from Domestic Violence the Act 2005”, which was passed by Parliament in September 2005 and came into force in October 2006.

Protection of Women from Domestic Violence Act 2005

The Act defines domestic violence to include actual abuse or threat of abuse—physical, sexual, verbal, emotional or economic violence. Section 3 of the Act says that any act, omissions or commission or conduct of the respondent shall constitute domestic violence in case it

(a) harms or injures or endangers the health, safety of life, limb or well-being, whether mental or physical, of the aggrieved or tends to do so and includes causing physical abuse, sexual abuse, verbal and emotional abuse and economic abuse; or

(b) harasses, harms, injures or endangers the aggrieved person with a view to coerce him or any other person related to her to meet any unlawful demand for any dowry or other property or valuable security; or

(c) has the effect of threatening the aggrieved person or any person related to her by any conduct mentioned in clause (a) or clause (b); or

(d) otherwise injures or causes harm, whether physical or mental, to the aggrieved person.

For the purpose of Section 3:

(i) “physical abuse” means any act or conduct which is of such a nature as to cause bodily pain, harm, or danger to life, limb, or health or impair the health or development of the aggrieved person and includes assault, criminal intimidation and criminal force;

(ii) “sexual abuse” includes any conduct of a sexual nature that abuses, humiliates, degrades or otherwise violates the dignity of woman;

(iii) “verbal and emotional abuse” includes

(a) insults, ridicule, humiliation, name calling and insults or ridicule specially with regard to not having a child or a male child; and

(b) repeated threats to cause physical pain to any person in whom the aggrieved person is interested.

(iv) “economic abuse” includes

(a) deprivation of all or any economic or financial resources to which the aggrieved person is entitled under any law or custom whether payable under an order of a court or otherwise or which the aggrieved person requires out of necessity including, but not limited to, household necessities for the aggrieved person and her children, if any, stridhan, property, jointly or separately owned by the aggrieved person, payment of rental related to the shared household and maintenance;

(b) disposal of household effects, any alienation of assets whether movable or immovable, valuables, shares, securities, bonds and the like or other property in which the aggrieved person has an interest or is entitled to use by virtue of the domestic relationship or which may be reasonable required by the aggrieved person or her children or her stridhan or any other property jointly or separately held by the aggrieved person; and

(c) prohibition or restriction to continued access to resources or facilities which the aggrieved person is entitled to use or enjoy by virtue of the domestic relationship including access to the shared household.

Thus the Act prima facie appears to be comprehensive. The term “domestic violence” has been defined for the first time in such a detailed manner which includes actual abuse or threat of abuse that is physical, sexual, verbal, emotional or economic. Even harassment by way of unlawful dowry demands to women or her relatives would also be covered under this definition. The Act seeks to cover even those women who are or have been in a relationship with the abuser, where both parties have lived together in a shared household and are related by consanguinity, marriage or adaption. Also, relationship with family members living together as a joint family are included. Legal protection is thus available to women who are sisters, widows, mothers, single women or living with the abuser. Besides, the Act protects the rights of women to secure housing.24 Moreover, the Act is not relying only on law enforcement agencies for protecting women against domestic violence. It refers to “protection officers” and allows registration of NGOs as “service providers for legal aid, medical examination or shelter for women in distress”.25

The term ‘cruelty’, as defined under section 498A of IPC, is covered in the new Act as well. Further, the new law has widened the meaning of the word ‘WOMAN’ and it covers the woman facing violence outside matrimony.26 Also the secular outlook of the Act is clearly reflected as it deals with domestic violence regardless of the religion of the parties. The term ‘woman’ here is religion neutral. Many a time general protections available to women, irrespective of their religion, are denied on account of religion based personal laws.27

Critical Evaluation of PWDV Act 2005

Despite the above mentioned positive features contained in the new law, still some lacunae can be seen in this law. Firstly, though the Act covers physical abuse, sexual abuse, verbal or emotional abuse as well as economic abuse, it does not speak anything regarding ‘forced sex’ or ‘sex without the wife’s consent’, that is, ‘marital rape’. While the West has legally recognised the consent of women even in marital relationship violation/rejection of which is equivalent to a criminal act, in India this is an area still awaiting legal recognition.

Secondly, there has been significant research indicating a direct correlationship between women’s economic status and violence faced by them.28 Therefore, it is very necessary to provide economic security to women in order to fight back domestic violence. In this context, several suggestions have been made from time to time. According to one such suggestion, a necessary step to make the woman economically secure would have been to make available a fixed share of the husband’s salary. This was one of the recommendations of the Sub-Committee on Women within the broader framework of the “National Planning Committee” in 1939-40.29 Any such reference regarding this aspect is missing in the Act and this shows the apathy of the law-makers towards a comprehensive and effective strategy to tackle the issue of domestic violence against women in India. The law-makers are looking upon domestic violence only as a legal problem and are concerned more about “protection” and less about “prevention”.

The larger section of victims who have used the PWDVA 2005 comprises married women. This is an indication of its wider non-acceptance yet or non-recognition of domestic violence in the non-marital plane.

Institutional Mechanism under PWDVA 200530

The Act is an improvement over the earlier/prevailing legal mechanism as far as the role of the law-enforcing agencies is concerned. The success of any law is dependent to a large extent upon how effectively the law-enforcing agencies play their role. Earlier the enforcement of law was largely the responsibility of ‘police’ that itself never accepted domestic violence as a crime; rather it always perceived such violence as a part and parcel of Indian culture. But this Act creates two new offices for the purpose of implementing the law, one is “protection officers” and the second is “service providers” (now onwards, POs and SPs respectively).

Protection Officers (POs)

The State Government by notification appoints POs in each district, entrusted with the task of reporting domestic violence to the “Magistrate”, as prescribed, upon the receipt of a complaint of domestic violence and forwards the copies thereof to the police officers incharge of the police station within the local limits of whose jurisdiction domestic violence is alleged to have been committed and to the “service providers”.

From November 2006 to July 31, 2007 there were no Protection Officers (PO) in five States at all whereas in the remaining States with the exception of the National Capital Territory of Delhi and Andhra Pradesh, only part-time POs were appointed. POs were also not fully trained and there was a lack of adequate infrastructure. Also, lack of coordination was found between judiciary and POs in the States of Assam, Kerala, MP and Orissa; the system, whereby POs are routinely and regularly informed about court orders, was missing. The lack of training infrastructure and support has led to over-burdening. Similarly only five States had registered Service Providers (SPs) and only 12 had notified medical facilities and shelter homes. The report of the Lawyers’ Collective suggests the inadequacies of government sponsored support facilities in meeting the prevailing needs.

In fact, the enforcement aspect reflects severe dissimilarities and deviations from the law; for example, in the States of Rajasthan, Punjab and Haryana, heavy reliance on privately appointed lawyers was found. Legal awareness and economic capabilities were presumed on the part of the victims. There has been a complete oversight of the role of “protection officers” or registered “service providers”. The only State, where all the agencies – police, POs, SPs providers and legal aid service authorities—play their due role of facilitating women’s access to court, is Andhra Pradesh.

However, there have been improvements in the following years. All the States have had appointed POs; since the Act does not fix the number, it varies from State to State. Ideally the Act should have fixed the number of POs in proportion to the population. For the appointment of POs the Act says only that preference shall be given to women in matter of appointment and does not talk about the qualifications and training of POs and Service Providers. In fact a majority of POs appointed are without any specialised education or training. Ideally POs should be from a specialised branch in social work or law. The Act should have also specified the need for training in the light of which the State governments should have arranged for their proper training. The Act only talks about periodic sensitisation and awareness training on the issue as a duty of the government (Section 11 of PW DV Act, 2005). The second monitoring and evaluation report by the Lawyers Collective also found lack of adequate administrative/logistical and infrastructural support, that is, personnel, office space, transport, telephone, travel allowance etc. creating bottlenecks in the efficient discharge of duties by POs. In some States even ‘police officers’ have been appointed as POs (Maharashtra) which made the implementation difficult in view of the patriarchal attitude of the police towards women, issues, particularly regarding ‘domestic violence’.31

Section 10 of the PWDVA (2005) states that “any voluntary association registered under the societies Registration Act 1860.. or a company registered under the Companies Act, 1956 or any other law for the time being in force with the objective of protecting the rights and interest of women by any lawful means including providing legal aid, medical, financial or other assistance shall register itself with the State Government as a service provider for the purpose of this Act”. Thus the Act does not lay down any specific requirements in terms of qualification, training or expertise of these Service Providers particularly in law/practices, of domestic violence. Appointment of SPs. is entirely the discretion of States; while earlier in 2007 only five States had registered SPs, now about 18 States have appointed SPs. In very few States (Andhra Pradesh, Assam and Rajasthan) NGOs dealing with domestic violence or women’s issues are working as SPs. The Act does not provide for any follow-up of the working of POs and SPOs.

Procedural Aspect

As far as the procedures for obtaining the orders and relief are concerned, an aggrieved person or PO or any other person on behalf of the aggrieved person may present an application to the Magistrate seeking relief under this Act. The Magistrate at any stage of the proceedings may direct the respondent or the aggrieved person to undergo counselling. What is important about the Act is that it rejects the Anglo-Saxon notion of locus standi. Anybody on behalf of the aggrieved person may also file a report. Secondly, the Magistrate shall fix the first date of hearing within three days from the receipt of an application by the Court. The Magistrate passes the protection order in favour of the aggrieved person, prohibits the respondent from committing or aiding in the commission of acts of domestic violence, attempting to communicate with the aggrieved, alienating the asset of the aggrieved person. The Magistrate is also empowered to pass an order of residence. From the above it is clear that the Act tries to grant relief to the aggrieved party on an urgent basis but in so doing it ends up in overlooking the ground realities of the situation of the victims of domestic violence as is evident from the judgement pronounced in the following case. The Supreme Court declared in S.R. Batra versus Tareena Batra that a woman could claim this right only in relation to a household owned and rented by her husband.32 The judgement is a clear oversight of the ground social realities of the joint family system in India. Even if the right to residence is granted, in such a situation there is always a threat to the life and dignity of the woman. Consequently she has no way but to search for an alternative shelter. Also the Act acknowledges speedy justice in the cases. Though the law is civil in nature, criminal procedure is to be applied in accessing reliefs.33 Again, though the Act addresses the need to have speedy justice in such cases, it overlooks the security needs of victims of domestic violence. Also the offence under the Act is non-bailable, and anyone may play with the Act and create problems in the family.34

The Magistrate may also direct the respondent to pay the ‘monetary relief’ to meet the expenses incurred and losses suffered by the aggrieved person. However, the Act does not take into account the financial condition of the other party (that is, the respondent)—how the ‘losses’ and ‘expenses’ are estimated being very subjective terms there are again no clear guidelines in the Act. While the maintenance provision under the HMA 1956 clearly defines the amount of monetary support (as maintenance) not to exceed one-third of the total income,35 no such provisions are enumerated in the PWDV Act (2005)—how long monetary relief shall be provided is also not mentioned in the Act. Moreover there is a provision for compensation for the damages and injuries including mental torture and emotional distress by acts of domestic violence. But the entire provision of monetary compensation, relief and other protections is largely dependent on the subjective satisfaction of the Magistrate. The Magistrate may even give custody of the child to the aggrieved (though temporary) which is contrary to the provisions of the Hindu Guardianship Act 1956 which declares the father as the natural guardian36 and which may further create guardianship tussel between the parents causing legal complications for the aggrieved. Ideally justice should be delivered within three months but in view of the fact that the courts are overloaded with work, the case may linger on for months. In many places, including the model State of Andhra Pradesh, cases may drag on for more than six months.

If in case of domestic violence the complaint is registered both under the PWDVA 2005 as well as Section 498-A of the IPC, both the agencies carry out their investigations and if the reports are contradictory then what is the way out? Double enquiry may create confusions.37

The Act may further be criticised on the following grounds:

1. A lot of scope for the Magistrate’s discretion in matters pertaining to monetary relief, monetary compensation, child custody, contradictory reports of enquiring authorities (as the complaint may simultaneously be filed under Section 498A of the IPC as well as the PWDVA 2005). Similarly there are maintenance provisions within the various personal laws (Hindu, Muslim and Christian) which may stand contrary to the provisions of monetary compensation and relief and even right to residence within the PWDVA 2005.

2. The Act is not ‘gender neutral’ since it is for ‘women’ only. There are about five petitions challenging it on the grounds of constitutional right to equality.

3. There are no safety valves in the Act to prevent its misuse. It may prove disastrous not only for an individual in case the complainant has ‘malafide’ intentions. The Act is civil in nature but criminal in procedure and offence under this Act is cognisable and non-bailable.

4. Violence faced by the ‘mother-in-law’ is completely missing. There is no mention of it. The Act completely ignores violence by the daughter in-law against the in-laws. The country has already seen the misuse of the Dowry Prohibition Act 1986. It was found that every four minutes in India, innocent persons including old mothers/pregnant sisters/children, are facing false and fabricated dowry cases and are sent behind bars without any evidence (Section 498A is non-bailable).38

5. There is no mechanism to make it mandatory by the States to enforce the law in its totality; consequently in most of the States implemen-tation is half-hearted. One can find extreme disparities in the appointment of POs: providing inadequate budgetary support, maintaining poor record thus making the collection of data difficult; for example, while Maharashtra has appointed approximately 3687 POs, Assam only 27 and Gujarat just 25. The Act needs a Centrally sponsored scheme for effective implementation.

6. Too many laws on one issue create lots of confusion in the large number of already illiterate women who are without any/adequate knowledge of law. It creates confusion for the decision-making authorities also, notably the judiciary. Consequently there is wider scope for judicial discretion—something that appeals to their wisdom than becomes the legal remedy or law. At the same time it also creates scope for further exploitation of the “victim” by lawyers.39

7. The biggest beneficiaries or main users are still ‘married women’ for whom there are already enough laws. This fact thus puts a question-mark on its wider utility and application.

8. Moreover this Act provides only temporary reliefs and on urgent basis; permanent solutions are still to be found in personal laws. The failure of personal law due to its civil nature is an open fact; for example, most of the Hindu women still prefer to seek maintenance under Section 125, CrPC rather than under the Hindu Maintenance Act 1956.40

9. At the same time creation of a new law despite the existing legal provisions on the issue of violence against women, including domestic violence, reflects the gravity of the problem. Taking into account this fact the state should have given emphasis to the overall (socio-economic and political) empowerment of women to strengthen their position in society and family. However, one may see the apathy of the government towards the issue of empowerment of women. Law, though very important, is not the complete solution for such problems.

10. Any legislation should have a simultaneous legal literacy and sensitisation plan. It is an open fact that the victims of domestic violence themselves do not accept it as something wrong. There is total ignorance regarding rights as well as the law on the part of women. Therefore, laws remain paper tigers rather than being the instruments of social change.

Conclusion

To conclude, it may be said that the strategy of the Indian state towards a problem, and particularly that of women, is to rely largely on law and often only on law. The responsibility of the state ends with the drafting of the required laws, whereas the problems relating to women, particularly domestic violence, are socio-economic and cultural problems which demand a multi-faceted approach. Multiplication of laws relating to women has led to the problem of overlapping, legal dilemmas and legal confusion. Moreover, to overcome the problem of socio-economic and cultural hurdles, it is desirable to adopt a human rights approach to women’s problems. It is only through the human rights perspective that one can help safeguard human dignity and create a “violence-free home” leading to a “violence-free society”. n

[Acknowledgement: I wish to thank Dr Kanan Gahrana

for her useful comments on the text—R.K.]

Notes and References

1. Child Marriage Restraint Act 1929 (also known as Sarda Act).

2. ‘Sati’ was made a crime of culpable homicide punishable with fine, imprisonment or both in 1829.

3. Hindu Widows Remarriage Act 1856.

4. Kumari Jayawardena, Feminism and Nationalism in Third World, Kali for Women, 1986.

5. IPC, CrPC and various civil laws like Hindu-Muslim and Christian Personal Laws were drafted during British period.

6. Section 349, IPC: A person is said to use force to another if he causes motion, change of motion, or cessation of motion to that other, or if he causes to any substance such motion as brings the substance into contact with any part of the other’s body, or with anything which that other is wearing or carrying or with anything so situated that such contacts affect that other’s sense of feeling.

7. Section 351, IPC: Whoever makes any gesture, or any preparation intending or knowing it to be likely that such gesture or preparation will cause any person present to apprehend that he who makes that gesture or preparation is about to use criminal force to that person, is said to commit an assault.

8. ‘Dowry’ as contemplated by the Dowry Prohibition Act is a demand for property or valuable security having an inextricable nexus with the marriage. In other words, it is a consideration from the bride’s side to the groom’s side for the agreement to wed.

9. Section 2(1)(c), The Commission of Sati Prevention Act.

10. Section 4, The Pre-Natal Diagnostic Techniques (Regula-tion and Prevention of Misuse) Act, 1994.

11. Section 2(viii), DMMA.

12. Section 13(1)(ia), HMA

13. Section 27(1)(d), SMA.

14. Section 10, IDA (but the cruelty has to be coupled with adultery).

15. Section 32(dd), PMDA.

16. Agnes Flavia, “Violence against Women: Review of Recent Enactments” in In the name of Justice, Women and law in Society, Swapna Mukhopadyay (ed.), Manohar, 1999.

17. The Beijing Declaration and the Platform for Action – Fourth World Conference on Women—Beijing September 4-15, UN Department of Public Information, UN, New York, 1996.

18. Platform for Action: Ten Years after Beijing, India Country Report Dept. of Women and Child Development, Ministry of HRD, Government of India.

19. http://www.wcd.nic.in/chap2.htm

20. People’s Court: A Study on Legal Status of Women in Maharashtra, SAK and NCW, 2002.

21. ‘Review of Women Studies’, EPW, April 26, 2003, pp. 1658-1673.

22. www.nationalcommissionforwomen.org.

23. Platform for Action: Ten Years after Beijing, op.cit.

24. “Bill on Protection to Women against domestic violence gets Cabinet nod”, The Pioneer, June 24, 2005.

25. “Domestic Violence Bill gets nod”, The Asian Age, June 24, 2005.

26. Raman Richa, “The Protection of Women from Domestic Violence Act 2005”, Cri Law Journal Jour/2/Feb. 2009.

27. Sundersan Harini and Ramakrishnan Nirupama, “Domestic Violence Act Constitutional Perspectives”, NALSAR. www.legalsrviceindia.com/articles/dmt.htm-

28. Agarwal Bina, “Landmark step to Gender Equality”, The Hindu Sunday Magazine, September 25, 2005.

29. Krishnaraj Maithrey, “Women’s Perspectives on Public Policy in India: A Half Century of Incomplete or Lost Agenda?” in Gender, Technology and Development 4(2), 2000, Sage Publication, New Delhi. [A Sub-Committee was set up to advise on women. This committee recommended that economic value of housework should be recognised and women should have absolute control of a portion of their husband’s income.]

30. Observation based upon the two reports of Lawyers’ Collective on PWDV Act 2005 – “Staying Alive;
First Monitoring and Evaluation Report” 2007 on PWDVA 2005, Print Graphics, New Delhi, 2007. www.laywerscolelctive.org

31. Hindustan Times, August 19, 2007.

32. S.R. Batra v. Tareen Batra 136 (2007) DLT 1 SC, Hindustan Times, March 26, 2009 in Venkatesan V., ‘Lacunae in Law’, Frontline, January 4, 2008, Vol. 25, No. 25.

33. Basu Asmita, “Legislating on Domestic Violence”, Seminar, 583, March 2008.

34. Raman Richa, op.cit.

35. Kishwar Madhu, ‘Codified Hindu Law—Myth or Reality’, EPW, August 13, 1994.

36. Ibid.

37. Raman Richa, op.cit.

38. http://mynation.net/petition?pg=2

39. PWDVA 2005 under Section 26 provides that an application for reliefs may also be filed in any pending litigation that affects the rights of the women. Hence application may be filed in pending divorce proceedings or criminal proceedings Under Section 498A of IPC.

40. Kishwar, Madhu, op.cit.

Dr Rachana Kaushal is an Assistant Professor (Human Rights), Department of Political Science, Aligarh Muslim University, Aligarh.