The Protection of Women from Domestic

Violence Act, 2005

- Private concerns in public discourse.

Chetan. Basavaraj. Singai

Research Scholar
Centre for the Study of Law and Governance
Jawaharlal Nehru University
New Delhi – 110067
chetanbsingai@gmail.com

1
 “What is unique about women’s experiences of violence is that these acts
are not perpetrated by strangers and/or state on the basis of prejudice, but
rather by men women know, and are expected to trust and love: family
members; intimate partners; work colleagues; professionals; friends.” 1

“Households are sites of egocentric, strategic, and instrumental calculation

as well as sites of usually exploitative exchanges of services, labour, cash
and sex, not to mention sites frequently of coercion and violence”.2

Domestic Violence represents a serious abuse of power within the family, trust or
dependency relationships. It undermines the basic rights of people who, because
of their gender, age disability or dependence are most vulnerable to abuse.
Domestic Violence is a very pervasive, serious social malady and major health
(physical and psychological) problem. It has been in existence for a very long
time. Domestic violence bluntly, strips women of their most basic human rights:
the right to safety in their homes and community, it may kill basically questioning
RIGHT to LIFE of an individual. Despite this, Domestic violence tended and still
tends to be a ‘crime of silence’. This ensures that information about domestic
violence is sketchy and, as a consequence the perpetrators often escape
accountability and continue to commit violent acts. It is only but recently that the
situation is improving in most of the regions in our country and also among
countries in the globe and, for variety of reasons Violence against women is
recognized as a serious social issue demanding investigation and change.

In India, and probably the world over, domestic violence perpetrated against
women by partners and close family members continues to remain a matter of
silent suffering within the four walls of the home. Despite the awareness others
may have of a woman’s ongoing experience of abuse, the phenomenon of

1
Kelly, Liz (2006). An International Perspective on VAW: The contemporary reality and challenges.
British Council, Mumbai, December 20.
2
Fraser, Nancy (1987). What is Critical about Critical Theory? The case of Habermas and Gender. in
Gurpreet Mahajan (2003) The Public and the Private – Issues of Democratic Citizenship. Sage
publications: New Delhi.

2
intimate violence against women is typically identified as a private matter, made
invisible by society and kept under wraps because of concerns of guilt, shame
and secrecy. The norms that perpetuate silence and the stigma around domestic
violence in family and community settings permeate the formal institutional
response as well. Available evidence indicates that this silent crime reigns
rampant within Indian homes. Not only has the overall number of cases of crimes
against women (CAW) gone up in the past five years, there has been a dramatic
increase in violence against women within the household. Torture (cruelty by
husband and relatives) forms the largest category of reported crime against
women, constituting 32.3 per cent of the total recorded CAW in 1999, showing a
5.9 per cent increase over the previous year3.

Contextualizing Domestic Violence:

Considering the history of Violence against women there was no specific
legislation in our country to deal with the domestic violence caused by the evil of
dowry – which was affront on the society. Our Parliament enacted a new chapter,
Chapter 20A, which contains the sole provision, Sec 498A in the Indian Penal
Code (IPC).4 Definition of the expression ‘cruelty’ is somewhat truncated. There
may be situations of abuse or harassment that may not necessarily endanger the
life of the victim but would nevertheless make the life of the victim anything but
peaceful. However, Sec 498A has been largely misused with ulterior motive. Sec
498A has become a good source of revenue for the prosecuting agencies.
Secondly, if resort to Sec 489A is made and as it is both cognizable and non-
bailable, the husband and in–laws would be taken into police custody and
thereafter continuance of marriage itself becomes impossible as the gulf between
the woman (esp. wife) and the husband and the in-laws widens so much that it
becomes impracticable to bridge the gap.5 As Sec 498A is not compoundable,
nothing fruitful emerges out of the efforts to settle. The need of the hour was to
enact a legislation to curb domestic violence where the remedy should not be
3
Crime in India, 1999, NCRB, Ministry of Home Affairs, Government of India.
4
This section punishes a husband or a relative of the husband of a women who subjects her to cruelty with
punishment of three years and fine which is not specified.

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worse than the disease. Something was to be done to avert disruption of the
family. Thus, a civil law on domestic violence was enacted by the Parliament
called the – The Protection of Women from Domestic Violence Act (here after
DVA), 2005. Punishing the offenders and protecting the victims should be (is) the
role of the DVA, 2005.

The Public – Private dichotomy: bringing the private into public

The law always views what goes on in the family as a ‘Private’ matter outside the
purview of the state intervention. The DVA is a landmark enactment as it brings
the ‘private’ into the ‘public’. Why this shift from private to public is significant?
Violence in the public sphere was largely talked about by the Women’s
movement during 1980s, but violence in the private sphere was ignored. This
ignorance was surmounted by the implementation of DVA.

The neglect of the family has been present in much of liberal feminism. The early
liberalists expressed the belief that a minimalist state is necessary for protecting
the freedom of the individual, the liberals attempted to carve out a sphere in
which the state would not enter. Feminists argue that the relegation of the
household to the private sphere has depoliticised gender discrimination and
disempowered women by removing it from the circle of political intervention.6

On one hand, the popular understanding is that, justice refers to ‘public’ realm.7
On the other hand familial relationships are ‘private’, governed by natural instinct
or sympathy. Thus the family becomes an important locus to struggle for sexual
equality. There is an increasing consensus amongst feminists that the fight for
sex equality must go beyond public discrimination to the patterns of domestic
devaluation in the private sphere. In fact, Carole Pateman (1987:103) says that
the ‘dichotomy between the public and the private…is, ultimately, what feminism
is all about’. Confronting the injustice within private sphere requires substantial

6
Eagleton, Mary (2003). A Concise Companion to Feminist Theory. Blackwell Publications: UK
7
A realm where adult men deal with other adult men in accordance with mutually agreed upon
conventions.

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changes in family life. Liberals refuse to intervene in the family, even to advance
liberal goals of autonomy and equal opportunity, because they are committed to
a public-private dichotomy, and because they see the family as the centre of the
private sphere. Jaggar, Alison (1983:199) argues that because the liberal right to
privacy ‘encompasses and protects the personal intimacies of the home, family,
marriage, motherhood, procreation, and child rearing’, any liberal proposals to
intervene in the family in the name of justice, it ‘represent’ a clear departure from
the\is traditional liberal conception of the family as the centre of private life...as
the liberal feminist emphasis on justice comes increasingly to overshadow its
respect for so-called private life, one may being to wonder whether the basic
values of liberalism are ultimately consistent with one another’. Further Liberals
have accepted a sharp separation between the female domestic sphere and the
male public sphere.

The above background provides us with an understanding that DVA has made
itself as an important act as it addressees the violence against women in the
‘private’ sphere, which the state did not intervene hitherto. It is only recently that
society has begun viewing domestic violence as a social problem within the
context of violence against women, thanks to DVA. However, even when women
gather the courage to approach external institutions, they are met with insensitive
attitudes and inadequate redressal mechanisms. A study on judicial records8 has
shown that conviction rates in cases of domestic violence are very low. Lengthy
court proceedings, inordinate delays in investigation and irrational procedures
such as requirement of sufficient evidence to prove intimate partner abuse are
serious deterrents for women to approach courts, let alone see the entire case
through. How do we over come this paradox?

The Convention on the Elimination of Discrimination against Women

(CEDAW) was adopted by the UN General Assembly in 1979. India has signed

8
Elisabeth, V S. (1999). ‘Patterns and Trends of Domestic Violence in India: An Examination of Court
Records’. NLSUI.

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the Convention (in 1993) with some reservations to Article 16, which deals with
inequities in personal laws. The Convention states that the acts of inflicting
physical, mental or sexual harm or suffering of threats of such acts, coercion and
other deprivations of liberty – are violations of women’s fundamental human
rights. The recommendations of CEDAW include among other things, the making
of a law on the civil side as discussed above. After adaptation of CEDAW, 44
countries have enacted separate laws on domestic violence.9

The need for an understanding of domestic violence and specific legislation to

address it in India has been extensively debated before the Domestic Violence
Act, 2005 was passed. A Bill drafted in 1994 by the National Commission on
Women, and a subsequent LokSabha (Union Parliament) 2002 Bill differed
substantially from recommendations and draft bills from women’s organizations
such as the Lawyers Collective Women’s Rights Initiative (LCWRI), exemplifying
the reluctance on the part of legislators to recognize violence within the family, or
to enact any measures that may be seen as an intervention into the private
sphere. The LCWRI Bill was drafted keeping in mind the situation in India—
provisions such as the inclusion of economic abuse exemplified this. However,
the LokSabha Bill that was introduced as a result of this debate came under
severe criticism, since its provisions were such as would have resulted in a
complete failure of the domestic violence legislation to make any actual
difference. For example, only a legally married woman, or one related by blood or
adoption could avail of remedies under the Act. Domestic violence was defined to
mean habitual assault or harm. Both single acts of violence, as well as economic
or mental abuse were not expressively included, and it is doubtful whether any
court would have taken cognizance of such instances of domestic violence under
that Bill.

9
Each Nation (44 countries) has adopted Domestic Violence Act depending upon their social, political and
cultural context.

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The Protection of Women from Domestic Violence Act, 2005: An Appraisal
The above background is very useful to contextualize the critical appraisal of
DVA. It would be my endeavour to analyse the larger approach of the DVA – The
Protection of Women from Domestic Violence Act, 2005 (DVA) is it praiseworthy?
Is it successful to overcome the evil of ‘domestic violence’?

The Approach:
The present DVA has taken over its predecessors due to the importance it places
on defining clearly the concepts it works with. As will be seen, the recognition of
domestic violence as a crime has resulted in broadening the understanding of
what domestic violence is, who may seek protection under the act, and what type
of protection may be sought.

In its understanding of domestic violence itself, the present Act clearly scores
over the former Bill. In Sec.3 of the 2005 Act, domestic violence is defined in
terms of mental, physical, sexual, verbal, emotional and economic abuse. The
extent of domestic violence hence extends from physical hurt, to emotional and
economic blackmail and may be interpreted by courts and lawyers to include and
punish marital rape as well. The 2002 Bill, however, only included habitual
assault and ‘cruelty’, and exempted cases in which the assaulter committed the
act in self defence, or in the protection of his property. The Act introduces the
concept of a domestic relationship. This has broadened the scope of those
who may ask for relief under the act. Previously, only a woman who could prove
a relationship with the respondent – either by blood or marriage – could avail of
relief against domestic violence. The present Act only requires the proof of a
domestic relationship as the basis for action. This provision goes a long way in
recognizing existing social realities in India, where a vast number of marriages
are legally invalid due to a number of reasons. The Act now makes it possible for
the victims of violence in such relationships to approach the court for redressal.

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The Domestic Violence Act, 2005 does not account for violence perpetrated
against people with whom the accused might have shared a relationship in the
past, or against people who are employed to work in the household.10 (They
forced the state to enact the Domestic Violence Act, 1994. Thus Malaysia
became the only Muslim country to go in for such a progressive Act).

The status of child is unclear in the Act as well. While Sec. 2 (b) defines who a
child is for the purposes of the Act, it is not clear whether or not a child can be an
aggrieved party. Sec. 18 (c) seems to suggest that a child may be an aggrieved
party. The rest of the Act does not lead to the same conclusion, since Sec. 2 (a)
defines an aggrieved person specifically as a woman, and in many cases the
prescriptions in the Act are not child-friendly. While the authors agree that it may
not be expedient to combine child-protection laws with domestic violence
legislation as the two have substantially different requirements, the criticism here
is in the unclear status of the child in the Act.11

The relief system in the Act clearly shows the attempt on part of the legislature to
allow for the accused to have access to a variety of relief measures, to be
adapted to differing circumstances. The Domestic Violence Act provides
monetary compensation, Protection Orders and Residence Orders. A Protection
Order is a relief measure that has been used in most domestic violence
legislation internationally. It is a method by which further domestic violence is
sought to be curbed by issuing directions to the offender. Once a case of
domestic violence has been proved, a Residence Order details the living
arrangements of the offender and the aggrieved, in order to make sure that
further violence is not perpetrated on the aggrieved. Both these forms of relief

10
However, the Indian definition provided doesn’t easily provide for domestic violence suffered by
members in a family who are not female. Take for example, the domestic violence law in Malaysia –
known for its progressive domestic violence legislation - which includes as aggrieved parties a spouse,
former spouse, children, mentally incapacitated adults, and any other family member.
11
In contrast to this, the status of the child in the England legislation is unambiguous, and domestic
violence law clearly applies to children. Here greater responsibility is placed on adults who live with
children. They can be made liable not only for intentionally causing hurt of any kind to the child, but also
for failing to protect the child from harm.

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may also be granted as interim orders while the case is underway. DVA does not
entitle a crime, however if any of the orders (protection orders) are violated than
it is a crime. Thus, an important advance made by the Act in understanding the
nature of domestic violence has been in the combination of civil and criminal
remedies. While civil remedies can be tailored to meet the circumstances of each
case, criminal sanctions provide a greater deterrent effect among perpetrators.

One of the improvements in the Act has been the duration of the Protection
Order. In the earlier Bill, the Order would lapse after two years, and would in the
discretion of the Court. In the present Act, however, Protection Orders exist till
the aggrieved person applies for it to be removed, and the Court is satisfied that
such an application is not being made due to coercion.

Sec 19 of the DVA provides for, Residence Order (while disposing of an

application under sub-section (1) of section 12) as a part of the civil relief
provided for is a feature of the Act that had been left out of the 2002 Bill, which
gives women the right to continue to reside in the shared household, and restricts
the access of the offender to the household. This is all the more relevant when
one keeps in mind the importance of the matrimonial home in the lives of women
in India. Women are often discouraged from filing complaints about domestic
violence because they will be left homeless and destitute once turned out of the
house of their husband. The idea of residence orders therefore has a dual
purpose in that it prevents the destitution of women, and empowers them to
utilise the legal system available by providing security. Following Sec 12 (4) & (5)
provides for a time-bound response to the application made under subsection (1)
of the DVA, which make the judiciary to be efficient and the victims to be
relieved.

A similarly progressive, easy form of relief is monetary compensation under the

Act, which includes compensation for expenses resulting from domestic violence
such as cost of treatment for injuries, maintenance of the aggrieved and her

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children, and damages for mental distress resulting from domestic violence as
would be awarded in a civil suit.

The criminal approach to domestic violence is also given a space in this Act,
under Sec 31, which criminalizes the breach of any of the above Orders, and
punishes it by a criminal sentence of imprisonment up to one year, a fine up to
rupees twenty thousand or both. The punishment of fine up to Rs.20,000 seems
to be effective among the poor and middle class families but what about the rich
families? The combination of a civil and criminal approach to address the
problem of domestic violence has been used in other jurisdictions as well.

The status of child is hazy in the Act as well. While Sec. 2 (b) defines who a child
is for the purposes of the Act, it is not clear whether or not a child can be an
aggrieved party. Sec. 18 (c) seems to suggest that a child may be an aggrieved
party. The rest of the Act does not lead to the same conclusion, since Sec. 2 (a)
defines an aggrieved person specifically as a woman, and in many cases the
prescriptions in the Act are not child-friendly. While it may be agreeable that it
may not be expedient to combine child-protection laws with domestic violence
legislation as the two have substantially different requirements, the criticism here
is in the unclear status of the child in the Act.12

Further the DVA provides an understanding where the nature of domestic

violence has been in the combination of civil and criminal remedies. While civil
remedies can be tailored to meet the circumstances of each case, criminal
sanctions provide a greater deterrent effect among perpetrators.

12
In contrast to this, the status of the child in the England legislation is unambiguous, and domestic
violence law clearly applies to children. Here greater responsibility is placed on adults who live with
children. They can be made liable not only for intentionally causing hurt of any kind to the child, but also
for failing to protect the child from harm.

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Implementation of the DVA:
“Lot of effort has gone into this Act and the rules are framed with lot of care. But
a problem is that rules have to be implemented by State governments and my
concern is that it should not become like a Dowry Prohibition Act, where the
prohibition officers were supposed to be appointed by the state governments but
never came.”13 Thus the paper further explores to look at the provisions keeping
in mind the viability of implementation. In this section, some of the provisions that
do not lend themselves easily to establishment have been highlighted. Since
many scholars believe that the DVA is of a certain value in the redressal of
domestic violence, constructive suggestions have also been made wherever
possible to fill certain gaps in the provisions with regard to implementation.

There has been a significant amount of debate during the drafting of this Act
regarding the procedure to be adopted, which would best serve the purposes of
the Act and would be the easiest to implement. An example of this has been the
provision of settlement of domestic violence cases in the Magistrate’s courts. The
reasoning behind this provision is that of easy access for the aggrieved. The
option of Family Courts, wherever they have been set up, was also considered.
However, it was noted that the Family Courts, are greatly overcrowded due to the
channelling of cases under Sec 125 CrPC14 to these courts. Another argument
that has been brought out against the Family Courts is that they tend to place
cases of domestic violence within the field of family ‘disputes’. The argument
against Magistrate’s courts has been that a Magistrate may not be in a position to
carry out the objectives of the Act effectively without proper training, for which
there is a lack of resources. However, the provision of relief under the Protection
and Residence Orders has been far more detailed in this Act, unlike the
corresponding provisions in the former Bill proposed by the Government, so that
the Magistrate is bound to follow such directives. Thus, Magistrate’s courts have

13
Sarah Matthew (President, Feminist Association for Social Action), Business Line, Thursday, December
21, 2006.
14
Deals with maintenance of wife and children.

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been incorporated to serve the purpose of greater accessibility.

There has been an effort in this Act to simplify and make more effective issues of
procedure in the method of filing a complaint of domestic violence and of
obtaining relief under this Act. It also simplifies procedural matters for an
aggrieved who wishes to file a complaint. For example, the Act allows anyone,
perhaps a friend or an NGO, who has witnessed a case of domestic violence to
file a complaint to the Protection Officer.

A problem where a valuable provision may be compromised by a lack of

resources is with regard to the Protection Officers. Protection Officers, as per
Sec 18 of the DVA, are a rung of officers whose duty is to assist the aggrieved
party with the processing and completion of the domestic violence suit. While the
exact power, functions and duties are to be set down through rules and
regulations of the government, the role of the protection officer is to work in
tandem with service providers [NGOs and other civil society groups] to provide
the aggrieved party with sufficient legal and moral support during the course of
the trial. The institution of protection officers is a useful one, emphasizing the
need for societal intervention in order to prevent domestic violence, by directly
addressing from an external standpoint the relationship of power and control in
an abusive relationship. The problem however lies with the resources required
for the creation of such a rung of officers. The grave problem is whether the
protection officers will be appointed speedily and effectively.

All the provisions of this Act, however, do not serve the purpose of effective
implementation as the above examples, sometimes due to a lack of resources or
due to extraneous factors. S.12 (4), for example, is a laudable provision which
makes it mandatory for the magistrate to hear a case within three days of the
complaint being filed. The idea of prompt relief is carried on in s. 12(5) which
directs the magistrate to finish hearing the case within six months of it reaching

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court. However, the overcrowding of courts makes it difficult to see if they can be
practically realised.

Sec.10 of the DVA is important as it talks about the role of service providers.
These service providers have to be registered according to legal provisions. This
section provides power to these service providers to record the domestic incident
report, to get the aggrieved person medically examined and to provide shelter in
a shelter home. This helps the respective State government to address or report
violence effectively. These service providers act as a neutral agent as the
aggrieved person finds faith in them.

Further criticism of the Act is with respect to Sec.14, which may prescribe
counselling for either of the parties, and delay proceedings up to two months. As
has been discussed earlier, addressal of domestic violence has always tended to
focus on conciliation between the perpetrator and the victim, even within the
criminal justice system. This is due to the judicial perceptions regarding the
importance of preserving the family unit, even to the jeopardy of a victim of
domestic violence. In recognition of this fact, a provision such as Sec.14 can be
counterproductive in two ways. Firstly, it might jeopardize speedy disposal of the
case, and secondly, it may also convince the aggrieved to continue in that
situation without taking any further action.

DVA in Practice: Case of Batra v Batra (2006)

In the first ever judgment under the DVA the Supreme Court (SC) has ruled that
a wife’s claim for alternative accommodation lie only against her husband and not
against in-laws and that her right to ‘shared household’ would not extend to the
self-acquired property of her in-laws. The bench of Justice S B Sinha and Justice
Markandey Katju said that “the claim of a Delhi woman who had claimed her right
for alternative accommodation under section 19 (1) (f) of the act is faulty” and
they dismissed the case.15 The court further commented on the poor drafting of

15
Hindustan Times, December 19, 2006. New Delhi.

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Sec 2 (s) of the Act, which defines ‘shared household’.16 However, the idea
behind illustrating the above is to show that, where DVA finds its failure. The SC
has clearly mentioned that certain provisions in DVA are poorly drafted. This is
not to say that DVA is not a good act, but it has some loopholes when put in
practice.

Evaluation:
It may be concluded from an overall study of the Act that the range and detail in
which various definitions and forms of relief have been drafted, show a clear
effort on the part of the legislators to provide adequate redressal and protection.
It is only in some cases were it is felt that implementation has not been
adequately provided for—for example, in the system whereby a breach in a
Protection Order is addressed.

I am tempted to quote John Murphy who says that: “No, matter how much
Parliament endeavours to provide a comprehensive code of prescribed forms of
conduct, the reality is that crimes are still committed, many of which go
unpunished. It is no surprise, then, that mere availability of non-molestation or
occupation orders does not always translate into guarantee.”17 Ultimately the
most effective answer to the evil of domestic violence is the sensitivity of society
as whole, and thus sensitivity to gender justice as a whole. Ultimately, the
enactment of the law alone will not help - the root cause needs to be eradicated.
This evil of domestic violence act has to given due recognition as a valid social
concern. And it is a reading of the provisions of the Domestic Violence Act in this
light that will enable it to play a significant role. Thus the combination of law and
self-realization (sensitization) we can ensure and assure some sought of relief.

16
ibid
17
Cited in Domestic Violence Law: Report of Colloquium on Justice for Women Empowerment Through
Law (2000). Lawyers Collective-Women’s Rights Initiative. Butterworths: New Delhi. Pp. 215

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REFERENCES:

Business Line. The domestic violence Act is well-framed, but it should be

implemented right, December 21, 2006.
www.blonnet.com/2006/12/21/stories/2006122100140800.htm.

CEDAW – Restoring Rights to Women. Partners for Law in Development,
New Delhi. 2004.

Eagleton, Mary (2003). A Concise Companion to Feminist Theory.
Blackwell Publications: UK

Hindustan Times. SC finds fault with Domestice Violence Act, December
19, 2006. New Delhi. www.hindustantimes.in/new/181_1873583,008.htm

Jaggar, Alison (1983). Feminist Politics and Human Nature. Rowman &
Allanheld Publishers. The Harvester Press, Sussex, USA.

Kelly, Liz (2006). An International Perspective on Violence against
Women: The contemporary reality and challenges. British Council,
Mumbai.

Lawyers Collective Women’s Rights Initiative (2000). Domestic Violence
and Law: Report of Colloquium on Justice for Women Empowerment
through Law. Butterworths: New Delhi.

Mahajan, Gurpreet & Helmut Reifeld (2003). The Public and The Private –
Issues of Democratic Citizenship. Sage: New Delhi.

Pateman, Carole (1987). The patriarchal welfare state: Women and
Democracy. Center for European Studies working paper series. Harvard
University Press.

Protection of Women from Domestic Violence Act (2005). Government of
India. www.Indialaw.com.

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