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Assignment on

The laws for the protection of women against violence


prior to The
PWDVA, 2005

&

A critical analysis of – The Protection of Women against


Domestic Violence Act, 2005

Most of India is made up of patrilineal communities which add a patriarchal attitude


in Indian society. In other words, one would not be very wrong to say that Indian
society is largely patriarchal. As a patriarchal society, laws for the protection of
women’s rights in India have always had an importance. The Indian Constitution has
had laws for the protection of women’s rights from the time it started functioning.
Initially, women’s were given special attention though a few constitutional articles.
However, it can be seen that special laws and acts for the protection of women’s
rights were made gradually with the realization of the need for such laws.

The Constitution of India guarantees equality of sexes and in fact grants special
favors to women. These can be found in three articles of the Constitution. Article 14
says that the government shall not deny to any person equality before law or the
equal protection of the laws. Article 15 declares that government shall not
discriminate against any citizen on the ground of sex. Article 15 (3) makes a special
provision enabling the State to make affirmative discriminations in favor of women.
Moreover, the government can pass special laws in favor of women. Article 16
guarantees that no citizen shall be discriminated against in matters of public
employment on the grounds of sex. Article 42 directs the State to make provision
for ensuring just and humane conditions of work and maternity relief. Above all, the
Constitution imposes a fundamental duty on every citizen through Articles 15 (A) (e)
to renounce the practices derogatory to the dignity of women. All these are
fundamental rights. Therefore, a woman can go to the court if one is subjected to
any discrimination. When we talk about constitutional rights of women in India, we
mainly pertain to those areas where discrimination is done against women and
special laws formulated to fight those bigotries. The most important issues stand as
those pertaining to marriage, children, abortion, crimes against women, and
inheritance.
In our contemporary Indian society, a large number of crimes are committed
against women within the sphere of marriage. E.g. Domestic violence. In this
regard, we should have a glance into the marriage laws in India.

Before modern Hindu laws were passed, child marriages were the norms, inter-
caste marriages were banned, the girl became a part of the husband's family, and
polygamy was common. In the 19th century, the British rulers passed several laws
to protect customs and traditions while abolishing detestable practices like Sati.
Some such revolutionary laws were Hindu Widows Remarriage Act 1865 and the
Brahmo Samaj Marriage Act 1872, the forerunner of the present Special Marriage
Act. In the beginning, the Act sets four essential conditions for a valid Hindu
marriage. They are:

1. Monogamy
2. Sound mind
3. Marriageable age
4. The parties should not be too closely related

Polygamy was permitted among Hindus before the Act was passed in 1955.
However, after the act was passed, any man marrying again while his wife is living
will be punished with fine and imprisonment up to seven years. Formerly, child
marriages were common. The Child Marriage Act of 1929 was not very effective as
such marriages were continued to be performed. Now, however, the bridegroom
must be 21 years old and the bride 18 years. However, there is a separate Muslim
Code of Conduct, which allows polygamy of up to four wives as per Islamic laws.

A marriage may be invalid without the boy or the girl realizing it at the time of the
wedding. A civil marriage would be void if four essential conditions are not complied
with. These conditions are listed in the Special Marriage Act (Section 4), as
enumerated below:

• If it is bigamy
• If either party was suffering from mental disorder
• If the boy has not completed 21 years and the girl 18 years
• The boy and the girl are too closely related, or in legal language, are "within
degrees of prohibited relationship" unless custom governing at least one
party permits the marriage between them. Prohibited relationships are listed
in the Special Marriage Act.
• A fifth reason for invalidating a marriage is impotence of either party.

There are some grounds available to the wife only, both in Hindu and civil
marriages. One such ground available exclusively to the wife is her husband's
commission of rape, sodomy or bestiality. Under the Hindu Adoptions and
Maintenance Act 1956, a Hindu wife is entitled to be maintained by her husband.
Section 125 of the Criminal Procedure Code also deals with maintenance of wife and
children. If there is a decree of maintenance against the husband and the couple
has been living apart for over one year, it would be a ground for the wife to seek
dissolution of marriage. Here again the Muslim Personal Law has a different set of
conditions for the annulment of an Islamic marriage.
The Dowry Prohibition Act of 1961 says that any person who gives, takes, or abets
the giving or taking of dowry shall be punished with imprisonment, which may
extend to six months or with fine up to Rs. 5,000 or with both. Dowry that started
off as a practice to give away presents to the departing daughter, usually some
resources to begin her new married life, slowly assumed extraordinary proportions
and turned into a social evil. Brides were expected to bring the "gifts" regardless of
their personal willingness. The bride's family could no longer have an individual
say; lists were prepared and sent to the girl's house before the final agreement of
marriage between the two families. The condition being that the boy would marry
the girl only if the demands were met. Such a custom is being practiced not only in
India but also in other countries like Bangladesh and Nepal. The reason behind this
custom is the poor economical condition of the people along with a lack of
education; unawareness of legal rights among women and a general bias against
the women.

Crimes like rape, kidnapping, eve teasing and indecent exposure can be grouped as
crimes against women. Rape is the worst crime against women after murder and
the maximum punishment under the Indian Penal Code (IPC) is life imprisonment.
An abortion or miscarriage due to natural causes is not an offence. Therefore, the
law does not deal with it. However, violent and forceful abortion is a crime. Sections
312 and 316 of the Indian Penal Code deal with abortion as crime. Section 313 deals
with abortion without the consent of the woman. The punishment could even be life
imprisonment.

The Hindu Succession Act gives male and female heirs almost equal right to
inheritance. Section 14 says that any property possessed by a female Hindu shall be
held by her as full owner and not as a limited owner.

The Immoral Traffic (Prevention) Act of 1956 was the first Act made for the
protection of a right of women. An Act to provide in pursuance of the International
Convention signed at New York on the 9th day of May, 1950, for the Prevention of
immoral traffic. It was enacted by Parliament in the Seventh Year of the Republic of
India. The Immoral Traffic (Prevention) Act of 1956 says that - Any person who
keeps or manages, or acts or assists in the keeping or management of, a brothel
shall be punishable on first conviction with rigorous imprisonment for a term of not
less than one year and not more than three years and also with fine which may
extend to two thousand rupees and in the event of a second or subsequent
conviction, with rigorous imprisonment for a term of not less than two years and not
more than five years and also with fine which may extend to two thousand rupees.
(2) Any person who- being the tenant, lessee, occupier or person in charge of any
premises, uses, or knowingly allows any other person to use, such premises or any
part thereof as a brothel.

The Indecent Representation of Women (Prohibition) Act, 1986 laid restrictions and
prohibited indecent representation of women through advertisements or in
publications, writings, paintings, figures or in any other manner and for matters
connected therewith or incidental thereto. The act also says that any person who
contravenes the provisions of Sec 3 or Sec 4 shall be punishable on first conviction
with imprisonment of either description for a term which may extend to two years,
and with fine which may extend to two thousand rupees, and in the event of a
second or subsequent conviction with imprisonment for term of not less than six
months but which may extend to five years and also with a fine not less than ten
thousand rupees but which may extend to one lakh rupees.

Responding to calls from successive commissions for women and activists, the
Indian government established The National Commission for Women Act in 1990 to
help women gain equal status and participation in all areas of life and national
development. The parliamentary act which establishes this commission extends
over all of India except for the state of Jammu and Kashmir. The agency will be
comprised of a chairperson and 6 others to be nominated by the central
government for 3-year terms, and will be charged with reviewing and investigating
all provisions and matters regarding legal and constitutional safeguards for women;
conducting special studies into discrimination and atrocities against women, and
handling them through appropriate authorities where necessary; researching which
factors impede the advancement of women; helping plan and monitor the
socioeconomic development of women; inspecting places where women are held in
custody; and funding litigation on issues involving large groups of women. The
commission is also responsible for recommending changes and improvements to
existing legislation and practices.

Section 498A, IPC: Husband or relative of husband of a woman


subjecting her to cruelty.

Whoever, being the husband or the relative of the husband of a woman,


subjects such woman to cruelty shall be punished with imprisonment for a term
which may extend to three years and shall also be liable to fine.

Explanation-For the purpose of this section, "cruelty" means-

(1)Any willful 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; or

(2) Harassment of the woman where such harassment is with a view to coercing
her or any person related to her to meet any unlawful demand for any property
or valuable security or is on account of failure by her or any person related to
her meet such demand.]

Thus these were some of the legal provisions made for the protection of
women’s rights in India. There are some other laws like the section 125, CrPC
through which an aggrieved wife can attain maintenance from husband.

THE PROTECTION OF WOMEN FROM DOMESTIC VIOLENCE ACT, 2005

Domestic violence has always been one of the major women’s rights violations.
However, before this Act, there has not been any law dealing with domestic
violence specifically. Till 2005, remedies of domestic violence have been found in
form of civil law (divorce) & criminal law (s. 498A IPC). No clear definition of
domestic violence was formulated, and there was no civil law dealing with DV
specifically. Need for immediate & emergency relief was not given special attention.
Moreover, non-matrimonial relationships were not covered under domestic violence
by existing laws (e.g. between parents & children, brothers & sisters etc.)

The key features of the PWDVA are:


The definition of Domestic violence was formulated on the basis of the UN
Framework for Model Legislation on Domestic Violence & UN Declaration on
Elimination of Violence Against Women; Unambiguous recognition of the woman’s
right to live free from violence; Provides immediate relief to victims in cases of
emergency; The right to reside in shared household – recognizes inequality within
the home; Ensures effective access to justice – introduces new authorities &
mechanisms (PO as the interface between the woman and the court); Intended
specifically to protect women (children both male & female; Covers mothers,
daughters, sisters, widows, relations through adoption etc; Recognition to
“relationships in the nature of marriage” – victims of bigamous/
fraudulent marriages, relationships of cohabitation; Mix of both civil & criminal laws
– Two stage process –(1) Civil orders passed by Magistrate on Application under
Sec. 12 ,(2) On breach of civil orders by the perpetrator, arrest (imprisonment &/ or
fine).

The descriptions of the persons, who can complain i.e. the aggrieved
person, are
Any woman who is or has been in a domestic relationship with the respondent
(sisters, widows, mothers, daughters, women in relationships of cohabitation,
victims of bigamous marriages, single women etc.) and who has been subjected to
acts of domestic violence; children are also covered. Any person can file a
complaint on their behalf. Notably, domestic relationships are not restricted to the
marital context.

The descriptions of the persons against whom a complaint can be filed


[Section 2 (q)]:
Any adult male member who has been in a domestic relationship with the woman
who files a complaint of domestic violence; Relatives of the husband or the male
partner. Notably, they include both male and female relatives of husband or the
male partner.

The descriptions of a “Domestic Relationship” [Section 2(g)] are:


Relationship between two persons who live or have, at any point of time, lived
together in the shared household. Such relationships include relations of
consanguinity, marriage, or through relationships in the nature of marriage,
adoption, or joint family.

The Definition of Domestic Violence (Section 3) consists:


Any form of abuse causing harm or injury to the physical and / or mental health of
the woman or compromising her life and safety; Any harassment for dowry or to
meet any other unlawful demand; Threat to cause injury or harm; The overall facts
& circumstances of the case must be considered by the
Court.
The concept of domestic violence has also been categorized. The Kinds of
Abuse that would come under domestic violence are: Physical and Sexual
Abuse, Verbal & Emotional Abuse and Economic Abuse.

• Physical Abuse:
(i) Any act or conduct that causes bodily injury or hurt.
(ii) Includes assault, criminal intimidation and criminal force. E.g.: Beating,
Kicking, Punching etc.
• Sexual Abuse:
(i) Any humiliating or degrading sexual act.

• Verbal and Emotional Abuse:


(i) Insults, ridicule and threat causing harm or injury. E.g.: name calling,
ostracizing, blaming a woman for not having a male child etc.
• Economic Abuse:
(i) Deprivation of the basic economic or financial necessities of life and
entitlements that causes injury
or harm.
(ii) Including prohibiting/restricting access to the shared household. E.g.:
denial of food, disposing
of household assets to the detriment of the woman, disposing off her own assets
(such as Stridhan) against her will etc.

Section 17 of the PWDV Act provides women the right to reside in “Shared
Household”. The descriptions of the right are:
Every woman in a domestic relationship shall have the right to reside in the shared
household, whether or not she has any right, title or beneficial interesting the same;
An aggrieved woman shall have a right not to be evicted or excluded from the
shared household or any part of it by the respondent save in accordance with the
procedure established by law.
The descriptions of a “Shared Household” [Section 2(s)] are: As previously
mentioned, the PWDV Act gives women the right to live in shared household looking
at the fact that most of the times women are victimized by throwing them out of
their homes. The descriptions of a “shared household” are as follows:
A household is where the aggrieved person lives / has lived in a domestic
relationship, either singly or along with the respondent; Includes a household
whether owned or tenanted either jointly by the person aggrieved and the
respondent, or by either of them," Where either the person aggrieved or the
respondent or both jointly or singly have any right, title, interest or equity; Includes
such a household which may belong to the joint family of which the respondent is a
member, irrespective of whether the respondent or person aggrieved has any right,
title or interest in the shared household.

Sections 18 – 23 of the PWDV Act provide women the Provisions for Relief:
(i) Protection Orders (Section 18)
(ii) (ii) Residence Orders (Section 19)
(iii) (iii) Monetary relief (Section 20)
(iv) (iv) Custody Order (Section 21)
(v) (v) Compensation Order (Section 22)
(vi) (vi) Interim/ Ex parte Orders (Section 23)

Under the PWDV Act, women are given the right to claim residence orders.
Residence Orders can be passed by court directing the Respondent to:
Restrain from disturbing possession of the aggrieved person from the shared
household, or from entering any portion of the shared household in which the
aggrieved person resides; Direct the Respondent to remove himself from the shared
household (This order cannot be passed against a woman); Restrain the respondent
from alienating/disposing off/ encumbering the shared household or from
renouncing his rights in the shared household (except with the leave of the court);
Direct the respondent to secure alternate accommodation for the person aggrieved.
(When she so desires).

Other Reliefs under the PWDV Act includes:


Monetary Relief to meet expenses incurred and losses suffered, including
maintenance, medical expenses etc; Temporary Custody of any child (Best Interest
of child principle); Compensation and damages for injuries caused by acts of
domestic violence committed by the respondent (mental injury included); Interim &
Ex parte Orders on the satisfaction of Magistrate.

The Procedure of filing a case of domestic violence under the PWDVA is:

Stage I: Information of Incident of DV.


Information by Any Person (Section 4) - Must be reduced into writing
(i) To the Protection Officer, or
(ii) To the Police

Stage II: Complaint.


Aggrieved Person to lodge complaint:
(i) Directly with the Magistrate. This can be done even if POs have not been
appointed.
(ii) Directly with the Police. Police will record it as DIR & forward it to PO &
Magistrate.
(iii)With the Protection Officer. PO will record it as DIR & forward it to Magistrate.
(iv) With the Service Provider. Will record it as DIR & forward it to PO
&Magistrate.

Stage III: Proceedings in Court.


Application should be forwarded by woman or any other person on her behalf (for
relief u/Section12). After this is done, Ex Parte Order or Notice would be served
(within 3 days). Parties would appear before court. Then the Interim Order would be
passed. Evidence would be observed and examined & arguments would take place.
Only after this procedure, the Final Order would be passed (within 60 days).

Stage IV: Post-Order Proceedings.


From Final Order:
(i) There could be an Appeal by either party - before Sessions Court within 30
days (Section 29).
(ii) Application for Discharge/Alteration (Section 25).
(iii)Discharge of the Order [Section 25(1)].
(iv) Protection order to continue till its discharge. An application asking for
discharge only by woman. A woman may apply for a discharge if she has
settled her case. [Following Procedure for Counseling: Rule 14].
(v) Alteration/Modification/Revocation of Order [Section 25(2)].
(vi) Either party can ask for alteration / modification / revocation of orders.
(vii) This order must be in writing & on satisfaction of Magistrate that there is a
change in circumstances

Consequences of the Breach of Protection Order (Section 31)


(i) Breach of a Protection Order passed is deemed to be a punishable offence.
(ii) Charges under Section 498A IPC can also be framed by the Magistrate in
addition to the charges under this Act.
(iii)Offences are non-bailable and cognizable.
(iv) Punishment may extend to one year imprisonment and /or a maximum
fine of Rs 20,000/-.

It has been said in the PWDV Act that the Act can be used in Addition to
the other existing laws:
(i) PWDVA is in addition to existing laws (Section 36). Hence, an aggrieved
person can continue to use the existing provisions of law (offences under
IPC& other laws).
(ii) An aggrieved person has the right to file a complaint simultaneously under
Section 498A IPC (Section 5).
(iii)Reliefs under PWDVA can be asked for in other legal proceedings (Section
26). E.g. petition for divorce, maintenance, Section 498A IPC petitions.
(iv) An application can be filed in a pending proceeding for a residence order
according to the Rules of the court in which the case is pending.

Mechanisms for Implementation of the Appointment of Protection Officer


(PO) under Rule 3:
(i) To be appointed by state govt. from the Govt. or NGOs – preference to
be given to women.
(ii) 3 years of experience in social sector.
(iii) Tenure of PO to be a minimum of 3 years.
(iv) State govt. to provide necessary office assistance (infrastructure &
support staff)

Protection Officers are a special feature of the PWDV Act. They are to be
appointed in the following order:
(i) Full time POs to be appointed.
(ii) Number of POs to be appointed to depend on size, population & accessibility.
(iii)Must be sensitive to needs of the woman & ability to coordinate with court
also important.
(iv) Training & sensitization of POs essential.

The role of Protection Officer (Section 8) is as follows:


(i) The PO is under the control and supervision of the Court, and is responsible
to the court for cases of domestic violence. PO appointed by State
government.
(ii) To assist the court in the discharge of its functions.
(iii)To make a Domestic Incident Report (DIR) or application for protection order
on behalf of the woman.
(iv) To ensure the aggrieved woman is provided legal aid.
(v) To ensure medical services, safe shelter & information on service providers is
provided to the woman.
(vi) To ensure that orders for monetary relief are complied with.
(vii) PO can be penalized for failing/refusing to discharge his/her duty (previous
sanction of State govt. necessary).

The role of Protection Officer (Under the Rules) is as follows:

With direction of Court (rule no. 10) –


(i) Conduct home visit & make enquiry before grant of ex-parte interim order.
(ii) Conduct enquiry on assets, bank accounts or other documents.
(iii)Restore possession of personal effects & shared household to aggrieved
woman & assist her in regaining custody of children.
(iv) Assist the court in enforcement of orders passed.
(v) To assist in any other duty assigned by state govt. or court.
Without direction of Court (Rules 8 & 9):
(i) To inform aggrieved woman of her rights.
(ii) To prepare a safety plan (Form V of the Rules).
(iii)To invite applications fm SPs, Counselors, maintain records of support
services & all documents related to the matter.
(iv) Emergency action: If PO receives information of case of DV through
email/telephone etc., shall reach place of occurrence with Police
immediately & record a DIR & present it to Magistrate for appropriate
order, without any delay.

The role of Service Providers (Section 10) is as follows:


(i) Service Providers are org. regd. under Companies Act/Societies Registration
Act. They will have to register with State govt. as Service Providers.
(These are generally NGOs working for women’s rights - SPs)
(ii) To record the Domestic Incident Report & forward it to Magistrate.
(iii)To get the person aggrieved medically examined.
(iv) To ensure that the aggrieved person is provided shelter in a shelter home,
if she so requires.

It needs to be noted that a service provider is protected for all actions done in good
faith in exercise of the powers under this Act towards the prevention of commission
of domestic violence as per as [Section 10(3)].

The role of the Police (PWDVA & Existing Laws) is as follows:

• Role under PWDVA :


(i) Complaint of DV can be lodged directly with Police. Police required to record
a DIR on lodging of complaint. DIR to be forwarded to PO & Magistrate.
(ii) Police to assist in enforcing court orders.

The Police should continue to play their role under existing laws & take appropriate
action (investigation, arrest etc.) for cognizable offences under IPC – offences like
grievous hurt, rape, dowry death, Section 498A used in domestic violence cases
(Section 36). Once a complaint of domestic violence is received by Police, they must
record a DIR (also under PWDVA).

It is a duty of the Police Officer, Protection Officer, Service Provider or


Magistrate to inform the Aggrieved Person of her Rights on receipt of
Complaint as per (Section 5). The following basic information should be
given to the aggrieved person:
(i) Right to make an application for relief under this Act.
(ii) Availability of services of the Service Providers and Protection Officers.
(iii)Right to free legal aid.
(iv) Right to file a complaint under Section 498A IPC.

Duties of Registered Shelter Homes, Medical Facilities (Sections 6 – 7):


(i) Shelter homes & Medical facilities to register with the State govt. under the
Act.
(ii) Shelter homes shall be bound to provide the woman with shelter if
approached
by the woman or the PO.
(iii)Medical facilities shall be bound to provide medical aid if approached by the
woman or the PO.

The duties of Government (Central & States) are as follows:


(i) To ensure that the Act is given wide publicity through public media at regular
intervals.
(ii) To give periodic sensitization & awareness training to all functionaries (govt.
officers, police & the judiciary).
(iii)Effective coordination between services provided by all ministries &
departments concerned & conduct periodic review.
(iv) Ensure that Protocols for functionaries (including courts) are prepared &
put in place.
(v) State govts to appoint POs & register SPs under the Act. List of SPs must be
given to POs & published in newspapers & govt. websites.
(vi) Budgetary allocations are the responsibility of state government.

The rules regarding Counseling & Assistance of Welfare Expert are laid
down as follows:
• Appointment of counselor (Rule 13) :
a. To be appointed from list of available counselors forwarded to Magistrate by
PO.
b. Preferably a woman.
c. A person interested/connected with the case or parties & any legal practitioner
who has appeared for respondent in the case or any connected proceeding, not to
be appointed as Counselor.

• Under Section 15, Magistrate may also secure assistance of Welfare Expert
(preferably a woman) in discharge of her functions.

The counseling rules under PWDVA (Section 14 & Rule 14) are as follows:
(i) The primary objective of counseling under the Act is to end DV & to ensure
the victim is in a position to take an informed decision.
(ii) Under Section 14, Magistrate may direct the parties, singly or jointly to
undergo counseling, at any stage of proceedings. Counselor to be a
member of a service provider.
(iii)The perpetrator of violence will not be allowed to justify his acts of violence
at the stage of counseling. [Rule 14(5)]
(iv) The respondent requires to furnish undertaking before counseling
proceeding begins that he will refrain from causing further domestic
violence & in appropriate cases, refrain from all communication with the
woman [Rule 14(6)].
(v) Counselor's efforts shall focus on remedial and redressal measures.
(vi) Settlement of matter shall only be attempted on request by aggrieved
person

Procedure for Counseling:


(i) Parties directed to undergo counseling by Magistrate – Counselor appointed.
(ii) Respondent to furnish undertaking & the objective of counseling under the
Act be complied with by counselor & parties.
(iii)Resolution of dispute through settlement (only if the woman desires).
• Counselor will records terms of settlement of dispute, ensure endorsement by
both parties and submit to court for passing of an order.
• Court will satisfy itself that terms of settlement arrived at with consent of
parties.
(iv) Non-resolution of dispute through Counseling.
(v) Court shall continue with proceedings under the Act, following report by
Counselor.

The functions of the Judiciary are laid down as follows:


(i) Application for relief (Section 12) can be filed directly before court. It is not
necessary to approach PO first or to record a DIR before filing an
application in court.
(ii) Putting an immediate end to violence must be the chief consideration of the
judge (grant of interim relief, ex parte order in emergency situations,
speed disposal of application etc.)
(iii)Judge must keep in mind the objective behind the law – sensitization &
training of judges essential.
(iv) Responsibility to supervise & issue appropriate directions to PO. Ensure
that the POs fulfill their duties.
(v) Duty to inform the woman of her rights under the PWDVA (Section 5).
(vi) Court to follow criminal procedure (CrPC). But can also formulate its own
procedure (Section 28) – Important where applications filed in pending
litigation (the procedure of the court in which matter is pending to be
used).

CRITICISMS THE PROTECTION


OF OF WOMEN FROM DOMESTIC
VIOLENCE ACT, 2005

The PWDVA has no doubt revolutionized the approach of Indian women towards
attaining justice. Nonetheless, the Act has been widely criticized. When a criticism
of the Act is thought of the first thing that strikes is that the rules laid on the basis
of which someone is going to be prosecuted are not definite. With the passage of
the Domestic Violence Act, for the first time in the history of legal ramifications
directly linked to women, the state has recognized that violence is not only physical
and/or sexual. Equally, violence can be psychological, verbal, and economic and act
as warning signs of future physical violence. With this in mind, the Protection of
Women from Domestic Violence Act, 2005, has laid down stringent rules to
prosecute men who harass, beat or insult women at home.

The rules, notified under the PWDVA, classify domestic violence under four
categories - physical, sexual, verbal/emotional and economic. Anything remotely
resembling abuse by a man of his wife, live in partner or child, can land him in jail
for one year or cost him up to Rs.20, 000 in fines, or risk being booked under sundry
sections of the Indian Penal Code. Physical violence includes beating, pushing,
shoving, and inflicting pain. Sexual violence covers offences such as forced sex,
forced exposure to pornographic material, any sexual act with minors; emotional
violence spans insults, jibes for not having a male child, preventing a woman from
taking a job, forcing marriage against a woman's will, threat of suicide, preventing a
woman from meeting someone etc.; economic violence includes denial of money,
food, cloth and medicines, forcing a woman to quit her job, not allowing her to use
her partner's salary, not paying rent, and forcing her out.

All of this is being welcomed widely by women's groups, but a little pause for
thought is also warranted. 'Protection' is a two-edged weapon. The very fact that
protection is the principal focus of the Act for women within marriage or out-of-
marriage relationships only reinforces the view that women, by and large, are
vulnerable to all kinds of violence in their relationships with men. This act is an
addressal mechanism to a problem that exists. This view also recognizes and
accepts that women are the weaker sex - physically, emotionally and sexually. This
is already an unwarranted stereotype that handicaps many women; those who are
professionally more successful than their husbands or male partners are often
forced to tone down their achievements for fear that the relationship might either
weaken or break because patriarchy has designed men to have egos that could
burst with women partners who are more successful. These can be called as the
hidden notions behind the Act which if given a thought, only strengthens the
stereotypes by identifying women as the weaker section which in turn, victimizes
women in a way.

Besides, if the woman ever needs 'protection' from the man she is living with, would
it not be simpler for her just to terminate the relationship? Will her male partner
take kindly to her later if she files a complaint against him under whatever ground?
The law is also short-sighted in a different sense; it forgets that not all domestic
violence is perpetrated by men against women, and targets only the male partner
as the perpetrator of violence. Importantly, no woman can file a complaint against
another woman or women under this Act.

Moreover, the framework of the new law calls for the appointment of protection
officers, service providers and counselors. This needs facilities to train existing
personnel, room for appointing new personnel and thus, a large amount of funds
flowing into the legal and judicial channels of the State. Does the State have the
necessary funding to support this programme? Or does the state have the
necessary willingness needed for the same or is the new law an apparently sweet
pill designed to satisfy some sections of women in the country?
Many lawyers have realized the inherent defects of the law and have opined that
this Act will place all man-woman relationships within and without marriage at risk.
For instance, how can a woman go to the magistrate and file a complaint against
her husband who does not provide her with medical help at all and does not give
her the money to buy medicines herself when he has been a good husband in other
ways? He has never abused her verbally, physically or even sexually. After 35 years
of marriage and three grown-up children, she is certain that if she approaches any
magistrate with this complaint, knowing fully well that this is economic violence, her
husband may suffer from a heart attack. So, how can this new Act help her in such
kind of a situation? The answer is the existing Act cannot do much about it.

Some opine that another basic problem with the present laws dealing with domestic
discord and marital abuse is that instead of providing effective remedies through
civil laws, the whole matter has been put under the jurisdiction of criminal laws,
with very draconian provisions to make their implementation stringent. This is what
scares many women from approaching the police or the courts for protection,
because once they put their husbands behind bars, they know then that they are in
a fight to the finish. Most women are not prepared for that. Instead, they prefer to
approach organizations that can mediate on their behalf and work out a better
solution for them.

One of the tragedies of independent India is that we have not yet learnt to
distinguish between reasonable and unreasonable laws, between implementable
and un-implementable laws, just as we have failed to create a law- enforcement
machinery capable of providing genuine recourse to all those whose rights have
been violated. The PWDVA will be closely watched by many and it is apparent that
there are many challenges. Lack of resources, lack of political will and entrenched
systems of patriarchy challenge the human rights movement's ability to protect the
rights of women. Most women are not even aware of their rights and, when they
are, they often don't place great stock in what human rights can do to help them.
To many women, human rights - leave alone women's human rights - are foreign to
their culture, and challenge deeply held notions of individual and community
identity. Moreover, women are frequently too preoccupied with their daily struggles
to invest much hope in abstract ideals or identify with a complex new law that
would be difficult to implement and execute in practical life.

Nonetheless, the positive part of the Act should not be missed. This Act has brought
change to the nature of legal provisions for dealing with domestic violence. It
challenges the attitude that society has that it domestic violence is a private matter
between husband and wife. The state now owns a responsibility that if reported it is
responsibility of the state to address the incidence rather than dismissing it as a
private matter.

……………………………………………………………….
ASSIGNMENT

Submitted to: Prof. U. K. Popli


(Faculty Supervisor)
Submitted by: Nabajit Malakar
Class: MSW(final)

Department of Social Work

Jamia Millia Islamia