By Revathi Satish 

Abstract

The Protection of Women from Domestic Violence Act 2005 is one of the most comprehensive legislations aimed at protecting women from all forms of violence. However, the path to achieving this milestone victory in women’s rights was a treacherous one. This article traces the journey of the Parliament of India over nearly 50 years through various legislations whose failure ultimately culminated in the passing of the Protection of Women from Domestic Violence Act, 2005.

Introduction

Indian legislation regarding domestic violence has travelled a long way since the 1860s when it first found mention in the Indian Penal Code. Today, women across the country have access to some of the most comprehensive legal remedies in the world, in the form of the ‘Protection of Women from Domestic Violence Act, 2005’, the Indian Penal Code of 1860, the Criminal Procedure Code of 1908 and various other specialised laws. These laws owe their distinctiveness to their wide scope and comprehensiveness that has ensured that domestic violence is not only remedied but positively deterred. It is important to note that arriving at this stature was made possible not only by the government, but the relentless demands, grit, and active engagement of thousands of women across the country through non-governmental organisations, women’s associations, rallies, and protests. These laws are the outcomes of the culminated effort of all the women who refused to stay silent on the issue of domestic violence even when the law itself remained a silent spectator.  

The Inadequacy of the Constitutional and Criminal Path  

In 1947, when India won independence from the British Empire, the founders of our nation decided that India would be a country free from gender bias and discrimination. Therefore, they included provisions in the Constitution to ensure that women are placed on an equal footing as their male counterparts. The Doctrine of Equality enshrined in Part III of the Constitution, under articles 14, 15 and 16 ensures that all individuals are equal under the law, prohibits discrimination on any basis and ensures equality in opportunity related to matters of employment. The Constitution under Article 51A(e)  prohibits practices that disparage the dignity of women. Additionally, the Indian Penal Code consisted of various provisions that criminalised acts of violence against women. These included Section 326 (acid attack), Sections 375, 376 and 511 (rape and attempt), Section 354A (sexual harassment) and Section 509 (word/gesture that insults the modesty of a woman) among many others. Many women were assaulted and subjected to violence over dowry by their husband’s family. Later in 1961, the parliament enacted a law that criminalised the practise of giving and accepting dowry through the Dowry Prohibition Act of 1961. However, these provisions did not cease the incidents of domestic violence which still ran rampant through households.  

In 1983, the Parliament amended 3 laws: the Indian Penal Code, the Indian Evidence Act and the Criminal Procedure  Code, and enacted new provisions to expand the scope of the law about the issue of domestic violence.  Amendments to the India Penal Code included the addition of section 498A, which dealt with cruelty by a woman’s husband or his relative. This section expanded the meaning of cruelty to include:  1. Any intentional behaviour towards a woman that would drive her to commit suicide or cause injury/danger to life, body or health. 2. Harassing a woman or her relative into giving up some property or valuable security. Section 498A also imposed a fine on the respondent along with a minimum sentence of 3 years in jail. 

Secondly, Section 113A was added to the Indian Evidence Act which deals with abetment of suicide of a woman by her husband or his relatives. If a woman commits suicide within 7 years of her marriage and it is proved that she was subjected to cruelty by her husband or his relatives, then according to section 113A the presumption of guilt will fall on the husband and his relatives. This section uses the definition of cruelty under section 498A of the IPC and works in consonance with the latter.  

Later in 1986, the Parliament added 304B to the Indian Penal Code that dealt with ‘dowry death’. This section lays down that if a woman dies within 7 years of her marriage and if it is proved that she was subjected to cruelty by her husband/husband’s relative and as a result either committed suicide or sustained bodily injuries in a matter related to dowry, then her husband or his relative will be held responsible for her death and will face a minimum of 7 years in jail. The definition of dowry under this section is as the definition in the Dowry Prohibition Act. Section 113B (Presumption of dowry death) was added to the Indian Evidence Act as a complementary provision, meant to be read with Section 304B. Under 113B, if all the criteria for dowry death are satisfied, the burden of proof shifts to the accused to prove that a dowry death did not occur.  

While these amendments were milestone additions to the justice system, there was one problem that was overlooked: all these remedies were criminal in nature and there were no civil remedies available.  

The Civil Legislation Path 

In 2001, the Parliament drafted a bill that sought to legislatively prohibit domestic violence. The intent was to safeguard women from all forms of violence and provide civil remedies. The bill was called the ‘Domestic Violence  Against Women (Prevention) Bill, 2002’. However, this bill did not pass through the houses of Parliament because of several controversial clauses that spiked huge protests among women across the country.  According to the criteria laid down in Chapter II of Section 22, violence had to occur regularly for it to be actionable. This implied that if a woman was subjected to violence occasionally it was acceptable as sometimes, women need to be ‘disciplined’. Secondly, the bill only defined violence against married women.  It did not provide a woman the right to reside in a shared household.  Thirdly, it provided for mandatory counselling to attempt to mend the dispute instead of heading to court. Fourthly, the only relief granted under the bill was restraining the aggressor from being around the victim or providing monetary compensation. Finally, the bill mandated service providers like NGOs and help shelters only act as intermediaries between the victim and the court. They were under no legal obligation to help the victim. 

Due to these controversial clauses, the bill was never passed. The Women’s Rights Initiative of Lawyer’s Collective created a radical alternative draft referred to as the ‘Remedies for Domestic Abuse Act’, whose inputs were taken up by the Ministry of Human Resources and the Parliament and were inculcated in the 2005, Protection of Women from Domestic Violence Act.   

The Right Path: Protection of Women from Domestic Violence Act, 2005 

In August 2005, the Parliament passed one of the most comprehensive acts aimed at rooting out domestic violence in society. The reason for the success of this piece of legislation is that it has managed to overcome the loopholes present in previous legislation while giving access to both civil and criminal remedies. The factors that make the Protection of Women from Domestic Violence Act unique are:  

1. Section 3 of the act defines domestic violence as ‘any act, omission or commission, that’-
   1. Causes emotional or physical danger to health, body, life, or wellbeing.  
   2. Causes mental or physical harm.  
   3. Threatens any person or anyone related to them.  
   4. Causes harm to anybody to coerce them into giving away any property, asset, or dowry. 

2. Under section 2(a) the act defines an ‘aggrieved person’ as anyone who has been in a past or present domestic relationship with the respondent and has been subjected to violence by them. This overcomes the previous limitation of only married women having access to remedies. This section is important as it is the first time law has recognised ‘live-in’ relationships.  

3. The legislation under section 3(d)(i) recognises 4 types of domestic violence: physical, sexual, verbal/emotional and economic abuse. PWDVA (Protection of Women from Domestic Violence Act) is one of the few legislations in the world with such a broad definition of domestic violence. Most legislations in the world do not recognise economic abuse. Even the United Kingdom until recently did not recognise economic abuse as a form of domestic violence.  

4. Sections 4, 5, 8 and 9 deal with ‘Protection Officers’, people who are appointed by the state government to act as intermediaries between the court and victims. A protection officer’s duties include: 

a. Assisting the Magistrate. 

b. Making a ‘Domestic Incident Report’ when a complaint has been filed.  

c. Maintaining a list of all service providers.  

d. Forwarding a copy of the complaint to the police station.  

e. Get victims medical help and find them a safe shelter home.  

5. Section 10 involves service providers by mandating them to register themselves with respective state governments and allowing them to contact protection officers on the victim’s behalf while helping the victim by providing financial, physical, legal and emotional aid.  

6. Section 17 guarantees the aggrieved person a right to reside in the shared household – a right never given before – whether they have any interest, right or title to the same.  

7. Sections 20, 21 and 22 offer not only monetary relief but custodial and other compensations respectively. Section 20 ensures that the victim receives monetary compensation in the form of medical expenses, loss of earnings etc. During the hearing, a magistrate may grant temporary custody of the children to the aggrieved person upon filing an application. The Magistrate may also award compensation for mental torture, injuries and emotional distress.  

8. Section 26 allows cases of domestic violence to be heard in civil, family or criminal courts to speed up the process.  

Conclusion

While PWDVA may not have eradicated the problem, it closed a lot of loopholes. The system may, at most, need to be amended, not rebuilt. The difference between 1947 and now is that we are much better equipped to deal with domestic violence. The comprehensive remedies and provisions of PWDVA make it one of the most effective legislation of its kind. There is an urgent need to build basic awareness about PWDVA’s remedies and legal safeguards, make the law more accessible to women and distil complex or voluminous legal information into easily understandable language. Gaining legal understanding and awareness among women is the need of the hour to help lift the fog of incognizance around domestic violence victims silently crying for help.

Author’s Bio

Revathi Satish is a first-year student of BA LLB at Jindal Global Law School. She is interested in International Human Rights Law and International Criminal Law.

Image Source: https://www.un.org/en/coronavirus/what-is-domestic-abuse