Critical Analysis of Protection of Women Against Domestic Violence Act (2005)

India’s the Protection of Women from Domestic Violence Act 2005[1] is the most successful campaign of the Lawyers Collective Women’s Right Initiative.[2] Since 1988 the Initiative was determined to accomplish the goal of empowering women through law. As a result, they had a major role in the enactment of the Act. This achievement has been recognized as a new era of law making that has been arrived through rigorous and detailed consultative processes directed towards consensus building.

The rationale behind bringing forth this Act was to essentially provide with emergency civil protection for female victims of domestic violence. The Act primarily provides for a Protection Order that exercises the role of prohibiting the alleged abuser from engaging in any other acts of domestic violence.[3] Moreover, the Lawyers Collective that discourages ill-treatment of women took a step ahead so as to provide a comprehensive definition of domestic violence and also facilitates them with the right to reside in her household.[4]

Although this Act is groundbreaking and an important  step towards gender equality for Indian women that was even manifested by the Lawyers Collective. They have constantly provided legal inputs to the women’s movement and have facilitated with legal aid to the survivors of sex-based discrimination, violence and abuse.[5] But even after so much of potential in the Act to assist women facing domestic violence it fails to take into consideration the patriarchal mindset of Indian society that is not dismantled yet. This can be substantiated by the Bombay High Court Judgement[6] that concluded that the abuse did not meet the requirement to acquire protection under the law as it was just inducing her to fulfill dowry demands.

The unified efforts by the Lawyers Collective, that drafted the statute including various women’s rights groups both India and Internationally.[7] The main purpose of the legislation was to facilitate a method of responding when women want to stop violence and need time to review.

their relationships and the alternatives available. One such alternative they propose is to negotiate their problems with their spouse with assurance of no violence.[8] The Act, nonetheless, has certain key limitations; especially with respect to the scope being limited, and the Act lacking the intended comprehensive protection for women against domestic violence.[9]

Background of the Act
The origin of the Act can be substantiated because of the problem in the criminal sanctions provided by the Indian Penal Code. The IPC only provides for two avenues wherein the perpetrator can be held liable. The two offences being Anti-Cruelty and Dowry Death. Sec 498-A of the IPC states that cruelty against the woman shall be punished with imprisonment and fine. Provided, the violence is such that it leaves no gate open for the woman but to commit suicide.[10]

Sec 304B of the same code covers Dowry Death, the death that has been caused in pursuance of dowry demands.[11] The inadequate remedies and the ignorance of other crimes that can be committed by the husband and his family can be said to the birth of the Protection of Women from Domestic Violence Act.

Although the Act came into existence in 2005 but the process of legislating it has been alive since 1993 when National Commission of Women approached Lawyers Collective to draft a law so as to curb the loopholes created by general domestic violence provisions.[12] The goal behind the advocation of the Act was to primarily protect a woman’s right to reside in her home, even after reporting incidences of domestic violence Also, it was necessary to give them time to reevaluate the future course of action so as to get an appropriate remedy.

The main feature of the Act also includes the provision of civil remedies prescribed in it i.e., it is not designed to punished the abuser but to protect the oppressed. The ratio behind this provision as stated in one of the interviews is that the civil nature ensures that the women are able to seek protection from domestic violence even if they are not willing to leave their spouses.[13]

Thus, the approach by the Lawyers collective helped in resolving the issue of woman’s option in seeking help that was only limited to cruelty and dowry death. And the greatest fear of a woman of exposing her husband’s violent behaviour would also restrict her from filing the case as filing of the same would lead to her homelessness and shame.[14] This was removed by the drafting of the Act.

Analysis of the Act
The Act begins with a definition clause consisting of terms most important of them being ‘domestic violence’. Which includes various forms of violence against the women such as emotional and economic other than the already recognized ones.[15] Another differentiating factor of the Act is the provision of proscribing threat of any abuse[16] as a ground for filing for a remedy.

Thus, the liberal expansion of the term is appreciated as being so wide so as to cover circumstances that have been restricted to private family matters in the past.[17] The wide approach of this Act is not only restricted in consideration to the definition of domestic violence but also to the prospective women that can be victims in their relationships. I.e., the protection under this Act extends to more than just married women.[18] It takes into account those domestic relationship which involves living in a shared household. Thus, it includes, women including sisters, widow, mothers, in laws, and unmarried women.[19]

Another provision that has been drafted never before is the idea of establishing the woman’s right to reside in a “shared household”[20] or to even seek support through other housing facilities.[21] It is a well-reasoned provision of this Act as it protects a woman from eviction even if the title of the house is not held by the husband but by her in-laws.[22]

It can interpreted that the same was drafted while keeping in mind the misery of these victims that are deprived of the option to return to their parents’ home or the essentials to suffice their needs. Moreover, the Act even subscribes for the court to order the abuser to provide with alternative accommodations for her.[23]

Additionally, this Act brings forth the network of protection officers and service providers. They are appointed essentially for the purpose of  enforcement of the Act.[24] And have the duties of facilitating the women in filing applications, providing them with free legal aid and even enforcing Court Orders.[25]

The duties delegated of the service providers are extended to NGOs or other voluntary organizations that also help in supporting the victims.[26] The establishment of such officers can be seen as a reason for the victims to be able to approach avenues like protection officers that can be easier than Indian Police.[27]

The Act provides with six remedial protections which in itself is a very different approach that has been adopted innovatively. The Protection Order ensures any violence against the victim by prohibiting it through a “stop violence” order.[28] The Residence Order was made so as to ensure that the woman is not deprived of homelessness.[29]

The victim is also entitled to receive monetary relief that can be used to cover her expenses that she was short off because of domestic violence.[30] Similarly, there is even a provision of Compensation Order that take cares of the victim’s physical and mental injuries through damages.[31] The other two relief include temporary Custody Order that ensures the custody of the children with the mother.[32] And passing of an ex parte order that authorizes the court to thwart immediate threats on the woman.[33]

Moreover, it is essential to note that the Act does not consider but requires that all the proceedings must be disposed of within sixty days of the first hearing.[34] Additionally the date of the first hearing is also fixed as within three days following the application.[35]

Although, it is civil in nature but in some respects, it can even cover criminal aspects. Such as when the abuser is brought under Anti-Cruelty Act or the Anti-Dowry criminal laws by the magistrate when or if he deems it appropriate.[36] The failure of compliance with the Order of the magistrate is treated severely and even results in criminal punishment.[37] Nevertheless it has certain limitations that need to be dealt with at the earliest.

Limitations in the Act

Essentially the cultural backdrop in India limits the effective implementation of the Act.[38] The patriarchy rooted in India’s social structure consists of widespread discrimination that results in frail legal solution because of Indian cultural norms.[39] The problem persists because the public does not accept domestic violence as a form of control over women. The cause of the same is the tolerance level of the Indian Society.[40]

Women are treated prejudicially in India. It begins with the female child-birth itself that uses the sex-selective abortion.[41] The problem ignites due to the social stigma that comes into picture because of the taboo i.e., associated with the concept of divorce.

Judiciary as a body is believed to aid the people when the other two pillars of democracy fail to prove their competence. But in the interpretation of the term “shared household” by the Apex Court of India minimized the scope of its definition. In S.R. Batra v. Taruna Batra, which is disappointingly the only case to date that goes even close to interpreting the Act.[42] It rejected the wife’s argument with respect to the plain meaning of the sec 2(s) and claims that right to reside can only be exercised if the property is a joint family one.[43]

This judgement has been criticized as neglect of the language and proper interpretation of the same.[44] One can say that although it has been criticized and has even not been fatal to the effectiveness of the Act. But to see the larger picture this negligence by the judges can be repeated and it is a possibility that they might not be lucky this time. Thus, it very important to find ways through judicial activism to keep it alive before it’s too late.

Many scholars and even this research appreciates the expansive nature of the Act with regards to the protection. It inculcates all women who have a relationship with the abuser. The issue that has been disregarded intentionally is that few males can also have a relationship with the abuser that also might need attention so as to maintain them. It is clear that the drafters have assumed that the father, brothers, uncles and other male members would definitely be involved in the process of ill-treating the victim. It neglects that they might try to stop the conflicts and even at times try to amicably resolve them. Thus, this factor must be taken into consideration.

Out of all the limitations the most significant flaw is it being civil in nature. The Act nowhere mentions any punishment for the perpetrator/man that commits the offence of domestic violence. Therefore, it makes the Act redundant in a way because ultimately the woman has to file under Anti-Cruelty and Dowry Death Statute so as to attain criminal justice. Thus, it is not difficult to deduce the cause of the low publicity of the Act.[45]

Subsequently, the lack of information creates new drawbacks such as lack of training of protection officers and magistrate judges. Even though it is the primary duty to train these personnel it fails to do so hampering the information regarding the Act as well.[46]

Similarly, it has another shortcoming that the reliefs are not robust i.e., they are not permanent in nature. Although the temporary character was recognized so as to give time to the woman to decide the appropriate option. The protection is only limited during this time otherwise the victim does not have the protection from domestic violence. The temporary character creates a mindset for the perpetrators to not stop this behaviour as essentially the remedy is ephemeral.

Many scholars and even the researcher appreciates the recognition of the right to reside which in itself was a very unique idea but it can be questioned as to why the drafters had limited themselves to just one right i.e., the right to reside in a shared household.

A right to freedom from violence is essentially the main goal of this Act but the same right is temporary. It is thus, very important to draft a suitable provision that respects the dignity of the women related to the abuser and even holds their right to life, freedom and others.[47]

The story is not over yet as the deficiency of legal counsel also hampers the situation of the aggrieved persons therefore, their right to free legal aid must not be curbed.[48] Continuous monitoring and amendment of the Act is the need of the hour so as to achieve protection of women against domestic violence.

Suggestions for the Act

1. Eligibility of Protection Officers

   The success of the Act depends on protection officers. However, because the post of protection officer is relatively new, there aren’t many structural regulations to ensure that they perform their duties effectively. It remains unclear whether using protection officers to enforce the Act will be successful, especially since only a few have been appointed so far.

   The Act does not specify any background, training, or experience required for the appointment of a protection officer. Guidelines regarding their qualifications would help officers carry out their duties more efficiently and lend credibility to the post.

   Representatives from 23 states, during the National Women’s Conference in February 2006, called for the effective implementation and enforcement of the Act. Several suggestions were made at that meeting.

2. Role of Police Officers

   The Supreme Court of India has repeatedly stated that “the perpetrators of [dowry violence] not infrequently escape from the nemesis of the law because of inadequate police investigation.” Moreover, the Court has expressed concern over the police’s lackadaisical approach, which includes delays and insufficient evidence gathering.

   The Act promotes police sensitization and awareness training, which is essential for its proper implementation. These training sessions are integral to achieving the desired outcomes.

   Establishing more All-Women Police Units (AWPUs) can also be beneficial. While 295 such units currently exist across India, increasing their number would further enhance support for victims. Psychologically, women are more likely to confide in other women, making AWPUs a more effective and empathetic option. These units could also be granted powers to resolve issues amicably, wherever possible.

3. Publicity

   For victims to benefit from the Act, public awareness is crucial. People must know about the Act and how to use its provisions. The media can serve as a powerful tool to spread such awareness.

   Given the limited awareness of the Act, even negative media coverage can be useful as it still brings attention to the existence of the law. Both government bodies and women’s rights organizations must continue seeking media exposure.

   In addition to protection officers and police, women’s rights organizations play a vital role in implementing the Act. These organizations understand the objectives of the law and can guide victims effectively. However, their roles must be clearly defined to avoid duplicating the work of security and law enforcement agencies.

   Efforts to increase the culture of reporting abuse must also be promoted. One such initiative is Parivartan, implemented in Delhi’s Northwest District. This program encourages women to report violence without fear of police retaliation. It enhances police accessibility through female beat constables who approach victims proactively. Similar programs must be introduced nationally and followed up with regular updates.

4. Legal Assistance

   The Act requires police officials, service providers, and magistrates to inform victims about their right to free legal assistance. Although this provision exists, the number of lawyers offering public interest legal aid remains low.

   Victims often struggle to find affordable or free legal support due to the shortage of willing legal professionals. Unless more funding is made available, the existing public interest lawyers may become overburdened, making the legal aid provision ineffective in practice.

5. Amendments in the Act

   The government and NGOs must continuously monitor how effective the Act is in reducing domestic violence. They must evaluate both the provisions and the mechanisms available for women seeking redress.

   Providing shelters is vital for women who choose to leave abusive relationships. As women’s independence grows, societal beliefs that women must remain in marital homes may diminish, encouraging more women to seek safety and shelter until they become self-sufficient.

   Indian courts, in establishing common law, must also consider international treaties and obligations. The Indian Constitution mandates the acknowledgment and enforcement of such treaties. When domestic law is silent, courts should consider international standards—provided they do not conflict with existing laws or the Constitution.

6. Empowering Women

   Empowering women is crucial to reducing domestic violence. This empowerment would challenge deeply entrenched patriarchal norms and establish gender equality.

   Women must have access to education and employment opportunities. NGOs and the government should prioritize the education of female children and the provision of vocational training.

   Economic independence can reduce domestic violence, as financially independent women are more likely to be seen as equals by their partners.

Conclusion
Indian women now have more rights and safeguards than ever thanks to the Protection of Women from Domestic Violence Act. Unlike earlier domestic violence legislation, which only offered protection in certain situations. The Act defines domestic abuse broadly to encompass everything from physical assault to mental harm to pecuniary threats, with the exception of dowry killing and extreme cruelty.

The Act also offers civil remedies to bridge the gap between the harsh criminal legislation and the extreme civil remedy of divorce. The Act offers women a specific right, the ability to live in a shared household, which is crucial for the Indian struggle for women’s rights.

The Act’s language is exceptional, and if correctly applied, it has a great deal of promise to improve the lives of women who have experienced domestic violence. However, a number of aspects of Indian culture pose a challenge. The efficiency of the Act. The established patriarchal worldview of Indian society is the greatest obstacle to effective adoption.

Women are seen as inferior to men across all societal strata and levels. The patriarchal worldview impacts not only the general populace but even those who are tasked with defending women from domestic abuse. As a result, numerous actions must be performed to promote the Act’s successful implementation.

End Notes:

1. The Protection of Women from Domestic Violence Act, No. 43 of 2005; India Code (2005) [hereinafter Protection of Women Act or Act].
2. Lawyers Collective Women’s Right Initiative, Only Her Word: A National Campaign for Law on Domestic Violence 45 (Gondals Press 2004) [hereinafter Lawyers Collective, Only Her Word].
3. Protection of Women Act, ch. 4, s. 18.
4. Id. ch. 2, s. 3; Id. ch. 4, s. 21.
5. Waghmare v. State of Maharashtra, (1991) 1 HLR 438.
6. Ibid.
7. Lawyers Collective, Only Her Word, supra note 2, at 45; Interview with Brototil Dutta & Kamolika Dutta, Esquires, Lawyers Collective Women’s Rights Initiative, in New Delhi, India (March 5, 2007).
8. Interview with Dr. Jyotsna Chaterji, Director, Joint Women’s Programme, in New Delhi, India (March 6, 2007).
9. National Seminar, Stop Violence From Womb To Tomb: Battered & Shattered, Domestic Violence & Rape: A Bitter Reality 4 (Nat’l Seminar 2006).
10. Indian Penal Code (1986), s. 498A; Kirti Singh, Violence Against Women and the Indian Law, in Violence, Law & Women’s Rights 77, 82 (Savitri Gooneskere, ed., 2004).
11. Indian Penal Code (1986), s. 304B.
12. Interview with Brototil Dutta & Kamolika Dutta, supra note 7.
13. Judith G. Greenberg, Criminalizing Dowry Deaths: The Indian Experience, 11 AM. U. J. GENDER SOC. POL’Y & L. 837-839 (2003); Jayoti Gupta, Property Ownership of Women as Protection for Domestic Violence, in Property Ownership & Inheritance Rights of Women For Social Protection-The South Asia Experience 37, 47 (Int’l Ctr. of Research for Women, ed., 2006), available at http://www.icrw.org/docs/2006_propertyrights-southasia.pdf.
14. Protection of Women Act, ch. 2, s. 3.
15. Id.
16. Laurel Remers Pardee, The Dilemma of Dowry Deaths: Domestic Disgrace or International Human Rights Catastrophe? 13 ARIZ. J. INT’L & COMP. L. 501 (1996).
17. Protection of Women Act, ch. 1, s. 2(f).
18. VakilNol.com, The Act to Protect Women from Domestic Violence Comes into Effect from Today, Oct. 26, 2006, www.vakilnol.com/news/Protection-of-Women-From-Domestic-Violence.php.
19. Protection of Women Act, ch. 1, s. 2(s).
20. Pami Vyas, Reconceptualizing Domestic Violence in India: Economic Abuse and the Need for Broad Statutory Interpretation, 13 MICH. J. GENDER & L. 185 (2006).
21. Protection of Women Act, ch. 4. s. 19(f).
22. Protection of Women Act, ch. 3. ss. 8(1) & 9(1).
23. Protection of Women Act, ch. 3. s. 10.
24. Protection of Women Act, ch. 4. s. 18.
25. Protection of Women Act, s. 19.
26. Protection of Women Act, s. 20.
27. Protection of Women Act, s. 22.
28. Protection of Women Act, ch. 4. s. 21.
29. Protection of Women Act, s. 23.
30. Protection of Women Act, ch. s. 12(4)-(5).
31. Protection of Women Act, s. 31(3).
32. Protection of Women Act, ch. 5. s. 31(1).
33. Int’l Ctr. For Res. On Women, Violence Against Women Must Stop (2005), available at http://www.icrw.org/docs/2005_brief_mdg-violence.pdf.
34. Puma Manchandia, Practical Steps toward Eliminating Dowry and Bride-Burning in India, 13 TUL. J. INT’L & COMP. L. 305, 319 (2005).
35. Namratha S. Ravikant, Dowry Deaths: Proposing a Standard for Implementation of Domestic Legislation, 6 MICH. J. GENDER & L. 449, 457 (2000).
36. SR Batra v. Taruna Batra, 136 (2007) DLT 1 (SC).
37. Shalu Bansal v. Nitin Bansal, CC 1250/1 (Delhi, Unreported Judgment January 3, 2007).
38. Interview with Purnima, Nirantar, in Delhi, India (Mar. 6, 2007); Interview with Reenu Ram and Anubha Rastogi, Human Rights Law Network, in Delhi, India (Mar. 5, 2007).
39. Protection of Women Act, ch. 4, § 14.
40. Protection of Women Act, ch. 4, § 22.
41. Protection of Women Act, ch. 3, s. 5(d).
42. Solution Exchange for Gender Community E-Discussion Summary, http://www.solutionexchange-un.net.in/gender/e-discuss/disc01-tO-fullsumm.htm (Mar. 1, 2007).
43. Bhagwant Singh v. Delhi Comm’r of Police, (1983) S.C.R. 3 109, 121.
44. Protection of Women Act, ch. 3, § 11(b).
45. Rebecca Ruiz, India’s All-Women Police Pursue Dowry Complaints, WOMEN’S E-NEWS, Sept. 13, 2006, http://www.womensenews.org/article.cfmi/dyn/aidi/2886.
46. Delhi Police, Parivartan: Vision 2006-2011 (Delhi Police Pub. 2006).
47. National Secretariat, Protection of Women Act, 2005, Recommendations from Second National Women’s Conference, Delhi (Feb. 18–20, 2007).
48. Interview with Gita Gupta, UNIFEM, New Delhi (Mar. 9, 2007).
49. Interview with Dr. Sagar Preet Hooda, Delhi Police, New Delhi (Mar. 5, 2007).
52. Protection of Women Act, ch. 3, § 5(d).
53. Interview with Subbayamma Nagubadi, Valparaiso, Indiana (Feb. 25, 2007).
54. Justice Gita Mittal, Delhi High Court, Speech on the PWDV Act, 2005.
55. India Const. art. 4, §51(c).
56. Interview with Brototil Dutta & Kamolika Dutta, supra note 7.
57. Interview with Purnima, supra note 52; Interview with Dr. Jyotsna Chaterji, supra note 8.