Domestic violence is sadly a reality in Indian society, a truism. In the Indian patriarchal setup, it became an acceptable practice to abuse women. There may be many reasons for the occurrence of domestic violence. From a feminist standpoint, it could be said that the occurrence of domestic violence against women arises out of the patriarchal setup, the stereotyping of gender roles, and the distribution of power, real or perceived, in society. Following such ideology, men are believed to be stronger than women and more powerful. They control women and their lives and as a result of this power play, they may hurt women with impunity. The role of the woman is to accept her ‘fate’ and the violence employed against her meekly.
The Protection of Women from Domestic Violence Act (or the Domestic Violence Act) is a laudable piece of legislation that was enacted in 2005 to tackle this problem. The Act in theory goes a long way towards protection of women in the domestic setup. It is the first substantial step in the direction of vanquishing the questionable public/private distinction traditionally maintained in the law, which has been challenged by feminists’ time and again. Admittedly, women could earlier approach the Courts under the Indian Penal Code (IPC) in cases of domestic violence. However, the kinds of domestic violence contemplated by this Act, and the victims recognized by it, make it more expansive in scope than the IPC. The IPC never used the term domestic violence to refer to this objectionable practice. In fact, the only similar class of offences addressed by the IPC dealt with cruelty to married women. All other instances of domestic violence within the household had to be dealt with under the offences that the respective acts of violence constituted under the IPC without any regard to the gender of the victim.
Scope of the Act
The scope of this piece of legislation has been expounded in plethora of judgments by the High Courts and the Supreme Court in India. For instance, in a recent judgment the High Court of Gujarat in the case of Bhartiben Bipinbhai Tamboli vs. State of Gujarat and ors, 2018 (1) Crimes 11 (Guj) while extensively discussing the provisions under the Domestic Violence Act remarked that: “The domestic violence in this country is rampant and several women encounter violence in some form or the other or almost every day. However, it is the least reported form of cruel behaviour. A woman resigns her fate to the never-ending cycle of enduring violence and discrimination as a daughter, a sister, a wife, a mother, a partner, a single woman in her lifetime. This non-retaliation by women coupled with the absence of laws addressing women’s issues, ignorance of the existing laws enacted for women and societal attitude makes the women vulnerable.” The laws within the act also extend to protect women who are widows, mothers or sisters from acts of domestic violence. Under the act, domestic violence includes all actual abuse or the threat of abuse, regardless of whether the actions are of a physical, sexual, economic, verbal or emotional nature.
Under this Protection of Women from Domestic Violence Act, women can seek protection orders, residence orders, and monetary relief. Notable sections include:
Section 18: Courts grant protection orders to prevent further acts of domestic violence.
Section 19: Women have the right to reside in the shared household, ensuring they cannot be forcibly removed from their home.
Section 20: This section allows women to seek monetary relief for loss and damages resulting from domestic abuse.
Section 22: Victims can request damages and compensation for the suffering caused by domestic abuse.
Till the year 2005, the remedies available to a victim of domestic violence were limited. The women either had to go to the civil court for a decree of divorce or initiate prosecution in the criminal court for the offence punishable under Section 498A of IPC. In both the proceedings, no emergency relief is available to the victim. Also, the relationships outside the marriage were not recognized. This set of circumstances ensured that a majority of women preferred to suffer in silence, not out of choice but of compulsion.
Protection of Women and Fundamental Rights
In Francis Coralie Mullin v. Union Territory Delhi, Administrator, AIR 1981 SC 746, the Supreme Court stated, any act which damages or injures or interferes with the use of any limb or faculty of a person, either permanently or even temporarily, would be within the inhibition of Article 21 of the Indian Constitution. This right is incorporated in the Act through the definition of physical abuse, which constitutes domestic violence (and is hence punishable under the Act). Physical abuse is said to consist of acts or conduct of such nature that they cause bodily pain, harm, or danger to life, limb or health, or impair the health or development of the aggrieved person. Apart from this, the Act also includes similar acts of physical violence and certain acts of physical violence as envisaged in the Indian Penal Code within the definition of domestic violence. By adoption of such an expansive definition, the Act protects the right of women against violence.
Misuse of the Act
A criticism that has been prominently raised in the past is the scope of misuse of this Act by women against their husbands by ling false cases. The courts in the past have often faltered in understanding the sensitivity of this issue and often passed judgments which are criticized to be stereotypical, misogynistic and unthoughtful. This inherent misogynistic approach of courts isn’t just limited to cases under DVA but extends to other women-centric issues such as adultery, rape etc. Consider for instance, Rajesh Sharma v State of UP wherein the Apex Court issued a directive to the police that no automatic arrests be made without adequately determining the veracity of the complaints lodged under section 498A of the IPC. Without examining enough empirical material required to gauge the ground realities, the court concluded that the law is being misused by ‘vengeful’ women in general. Such a directive can prove to be counter-effective and run contrary to the object of the law.
Way Ahead
The Protection of Women from Domestic Violence Act, 2005 (PWDVA) has played a crucial role in ensuring economic security for women facing domestic abuse by granting them the right to maintenance and financial relief. However, the implementation gaps, procedural delays, and challenges in enforcement continue to hinder its effectiveness. The existing maintenance laws in India, spread across various statutes and personal laws, lack uniformity leading to disparities in access to justice. The judiciary has made significant efforts to streamline maintenance laws, as seen in cases like Rajnesh v. Neha (2020) and Bhuwan Mohan Singh v. Meena (2015), where the courts emphasized time-bound relief and financial transparency. However, mere judicial guidelines are not sufficient; there is an urgent need for comprehensive legal reforms to ensure faster adjudication, strict enforcement mechanisms, and penalties for non-compliance. The misuse of maintenance laws, which sometimes leads to false claims and exploitation of legal provisions. Governments and legal institutions must work together to ensure that maintenance laws serve their true purpose providing financial stability and dignity to those in need, without being subject to delays, exploitation, or gender bias.
Dr.S. Krishnan is an Associate Professor in Seedling School of Law and Governance, Jaipur National University, Jaipur.
Dr. Vandita Chahar is an Assistant Professor in Seedling School of Law and Governance, Jaipur National University, Jaipur.
Ms. Chari Vajpayee is an Assistant Professor in Seedling School of Law and Governance, Jaipur National University, Jaipur.