| Dr. Gayatri Yadav | Associate Professor | Career College of Law, Bhopal | Gayatriyadav00001@gmail.com |
Abstract
Domestic violence is a widespread and deeply rooted evil across the globe, with catastrophic results for its victims, especially women. In India, the Protection of Women from Domestic Violence Act (PWDVA) of 2005 is a legislative milestone in the battle against this social evil. Following the tireless efforts of groups such as the Lawyer’s Collective Women’s Rights Initiative (LCWRI), the passage of the PWDVA was a milestone in efforts to combat domestic violence, enacting a mature legal framework for protection and empowerment of survivors. This chapter explores the legal framework of domestic violence in India, tracking the history of the PWDVA from conception to passage. It analyzes the Act’s most significant provisions, noting its victim-centered approach and the plethora of civil remedies available to survivors. In addition, it analyzes the judicial response to cases of domestic violence, discussing landmark cases that have influenced legal interpretation and enforcement practice. Even with the presence of strong legal frameworks, there are issues with the effective implementation and enforcement of laws to combat domestic violence. The COVID-19 pandemic, with its concomitant lockdown measures and social distancing, further exacerbated vulnerabilities and increased the risk of violence at home. Against this context, the article sees the need for concerted efforts in combating domestic violence in a holistic sense, both through the law and wider societal actions towards gender equality and empowerment of survivors. Through a detailed analysis of the legal framework, judicial responses, and the role of extraneous factors such as the COVID-19 pandemic, this chapter hopes to throw some light on the dynamics of efforts to combat domestic violence in India and the ongoing struggle to safeguard the rights and dignity of survivors.
Keywords: Domestic violence, PWDVA, civil remedies, empowering survivors
Introduction
Domestic violence is a common crime throughout history. Men never stopped intimidating, harassing, and enslaving women in society to maintain their superiority. The patriarchal system has been rooted deep within Indian civilization since the beginning of time. Men are considered stronger and more powerful than women. They dominate women and their lives, which enables them to hurt women without any accountability. It can be said that this system was a driving force for the exploitation of women. Women of all classes are a victim of domestic violence, regardless of their age, caste, religion, or class. This inhumane crime has wider implications for society beyond impacting the victim and her children.
In an effort to address this issue, the Protection of Women from Domestic Violence Act, also known as the Domestic Violence Act, was legislated into law in 2005. The Act does much better to protect women in domestic environments. It is a fact that up to now, women who had been victims of domestic violence could file complaints under the Indian Penal Code (IPC). However, this Act has a broader scope than the IPC due to the extent of the domestic violence it covers and the victims it covers.
The definition of violence has changed over time to cover not only physical violence but financial, mental, emotional, and other types of cruelty. Therefore, acts that cause harm or endanger the health, safety, life, limb, or well-being (physical or mental) of the victim are domestic violence, as is any act of physical, sexual, verbal, emotional, or financial abuse by any person who is or has a domestic relationship with the victim.
Indian Supreme Court and High Courts have passed numerous judgments interpreting the legislative intent behind this act. For example, the Gujarat High Court, in the case of Bhartiben Bipinbhai Tamboli v. State of Gujrat and Ors, 2018, elaborately explained the provisions under the Domestic Violence Actthat: “Domestic violence is a common phenomenon in this nation, with numerous women facing violence on a daily basis. It is the least reported of inhuman acts. A woman leaves her destiny to the never-ending cycle of experiencing abuse and discrimination. Women are exposed due to the absence of retaliation, the absence of laws specifically enumerated to tackle women’s problems, people’s ignorance about the laws already enacted for them, and societal attitudes. Because of the social stigma that exists in our society and the mindset of women themselves, and the vast majority of domestic abuse cases go unreported. Women are to be submissive to men, not only to their husbands but to their male relatives.
Legal Framework
The legal context in the case of domestic violence in India is primarily premised on the Protection of Women from Domestic Violence Act (PWDVA) of 2005. The act is the pioneering step towards the resolution of domestic violence by providing a comprehensive legal framework for the protection and empowerment of survivors. In the wake of the whopping hike in the number of offences against women by partners and in-laws, the pressing need for coding a legislation in this aspect was felt by the Lawyer’s Collective Women’s Rights Initiative (LCWRI) when they brought forth the gnawing issue of domestic violence being inflicted upon women since ages. LCWRI proposed the Domestic Violence (Prevention and Protection) Bill in 1998followed by a bill drawn up by Lok Sabha, Government of India entitled The Protection from Domestic Violence Bill, 2001. All the endeavors collectively put by all for the security of women, thus led to the enactment of Protection of Women from Domestic Violence Act on 13th September, 2005 with an aim “to provide for more effective protection of the rights of women guaranteed under the Constitution who are victims of violence of any kind occurring within the family and for matters connected therewith or incidental thereto”. The Domestic Violence Act was enacted in accordance with the recommendations of the United Nations Committee on the CEDAW. The Act incorporates all the provisions of the Specific Recommendations which are a part of General Recommendationno.19, 1992.
Women’s rights as per Articles 14 and 15 are supported by the Domestic Violence Act. Domestic abuse is one among the many things holding women back, and hence this Act is enacted in order to save them from it. The Act discriminates on the basis of men and women, its sole protection being women from domestic abuse. This discrimination, however, is on the basis of a reasonable distinction—gender—and is also related to the object of the Act. The Act is not arbitrary in any way; rather, it is a thoughtful and much-required attempt at preventing and ultimately eradicating domestic abuse. This civil law is designed to give immediate relief to women victims of domestic abuse. The benefit of a civil law system is that it is victim-centered, allowing the woman to go to the law without having to rely upon the police, and it
gives legal remedy in terms of civil reliefs like monetary relief, compensation, and injunctions. A complaint under this act cannot result in arrest. The legislative rationale behind enacting the Protection of Women from Domestic Violence Act, 2005 has been analyzed thoroughly in the case IndraSarma v.
V.K.V Sarma(2013) 15 SCC 755. It was held that the reason for the enactment of such an Act is to give protection of rights of women who are victims of any kind of violence taking place within the family. The Act gives protection to women from undergoing violence in the four walls of her house. The Madras High Court in the case, Vandhana v. T. Srikanth 2007 SCC Online Mad 553also expressed the Protection of Women from Domestic Violence Act, 2005 “is an Act to provide for more effective protection of the rights of women guaranteed under the Constitution who are victims of violence of any kind occurring within the family and for matters connected therewith or incidental thereto”.Following the enactment of this Act, as mentioned in the National Crime Records Bureau, the statistics on Domestic Violence was gathered for the first time in the year 2014 and 426 cases were registered under this Act in the year 2014.
The PWDVA under Section 3 of the definition of domestic violence in the Act includes any act, omission, or conduct on the part of the respondent, which causes hurt, injury, or danger to the physical or mental well-being, safety, life, limb, or health of the aggrieved person. It includes physical, sexual, verbal, emotional, and economic abuse and harassment with the intent to coerce the aggrieved person or her relatives to yield to illegal demands of dowry or other property. Any conduct which intimidates, harasses, molests, or physically or mentally injures or apprehends the aggrieved person constitutes domestic violence under the Act.An expansive definition that captures the diversity of forms and manifestations of domestic abuse, keeping in view that violence in domestic relationships goes beyond physical harm.The definition also includes maintenance as permitted under
S.125 of the Code of Criminal Procedure (CrPC) and claims for compensation through domestic abuse. The claim for reimbursement is not confined to the maintenance provided by that clause. It must be observed that the maintenance provided by this section must be on par with the lifestyle of the aggrieved party.
Major provisions of the PWDVA are:
- Protection Orders: Protection orders can be issued by the court to survivors. If the Magistrate, after hearing the aggrieved person and the
respondent, believes domestic violence has happened or is bound to happen, can issue a protection order. The order can consist of prohibitions such as the respondent not committing further violence, going to certain places visited by the aggrieved person, trying to contact them in any way, disposing of jointly owned property without consent, harming dependents or persons who support the aggrieved person, and any other actions as set out in the protection order- Section 18.
- Residence Orders: At the hearing of an application with regard to domestic violence, the Magistrate is empowered to pass a residence order if the Magistrate is satisfied that domestic violence has been committed. The order can contain directions such as restraining the respondent from interfering with the possession of the shared household by the aggrieved person, requiring the respondent to vacate the shared household, forbidding entry into certain areas of the shared household, forbidding disposal or encumbrance of the shared household, and forbidding renunciation of rights in the shared household without leave. In addition, the Magistrate can direct the respondent to provide accommodation equivalent to accommodation afforded by the aggrieved person in the shared household or to pay rent for such accommodation, if necessary. No direction for the respondent to vacate the shared household can, however, be issued if the respondent is a woman- Section 19 (1).
- Shared Household: Regardless of any other existing laws, every woman
in a domestic relationship is entitled to stay in the shared home, regardless of her legal right or ownership. The aggrieved should not be evicted from the shared home by the respondent, other than by legal proceedings as given by law- Section 17.
- 4. Monetary Relief: While disposing of an application for domestic violence under section 12(1), the Magistrate may order monetary relief to be paid by the respondent to the aggrieved person and any children against them for loss of costs and due to domestic violence. The relief may be for loss of wages, medical treatment, loss of property, and maintenance to the aggrieved woman and her children. The relief must be reasonable, just, and proportionate to the standard of living of the aggrieved woman. The Magistrate can order lump sum or monthly payment depending on the case. A copy of the order is communicated to the parties concerned and the local police station. The respondent must pay the monetary relief within the stipulated time, and in case of default, the Magistrate may order their employer or debtor to pay the same directly to the aggrieved
person or leave them with the court, which can be varied against the relief due- Section 20. In addition to other reliefs granted under this Act, the Magistrate, on the application of the aggrieved person, can direct the respondent to pay compensation and damages for injuries caused by domestic violence, including mental and emotional trauma caused by the actions of the respondent- Section 22.
- Custody Orders: On hearing an application for a protection order or any other order in this Act, the Magistrate may, on her discretion, grant temporary custody of a child to the aggrieved person or to the applicant on her behalf. The Magistrate can also order visitation arrangements by the respondent if necessary, but if in the view of the Magistrate such visits would be detrimental to the interests of the child, the Magistrate can refuse the same.
- Access to Support Services: PWDVA requires the deployment of protection officers and service providers to enhance the access of survivors to support services like medical support, counseling, and legal assistance.
Other than the PWDVA, there are certain legal provisions intended to counter domestic violence, and these include:
- Indian Penal Code- 1860 (IPC): Section 498 A pertains to the harassment of a woman by her husband or her in-laws or any other relative of husband. Imposes punishment for 3 years and fine.
- Dowry Prohibition Act, 1961: This act prohibits the acceptance or giving of dowry, which in most instances is a causative factor of domestic violence against women.
3.Evidence Act and CrPC:
Procedural laws such as the Indian Evidence Act, 1872 and the Code of Criminal Procedure, 1973 exist for gathering evidence and trying cases of domestic violence.
Although there are such legal frameworks, there are still problems in their implementation and enforcement. In India, 32% of ever-married women ever suffered physical, sexual, or emotional violence by their husbands during their lifetime. National Family Health Survey-5 (NFHS-5), 2019-2021, states that “29.3% of married Indian women aged 18-49 have experienced domestic/sexual violence; 3.1% of 18-49-year-old pregnant women have experienced physical violence during pregnancy and87% of marital violence victimized married women don’t seek help.”
JUDICIAL RESPONS
The judicial response to domestic violence in India is a determining factor in shaping outcomes for survivors, as well as the efficacy of legal protection. The courts are tasked with interpreting and applying the relevant laws, for instance, the Protection of Women from Domestic Violence Act (PWDVA) of 2005, in a manner that works to promote the rights and dignity of survivors and hold perpetrators to account. Some of the relevant case laws that illustrate the judicial response to domestic violence in India in different ways:
V.D. Bhanot v. Savita Bhanot(2012): In this case, the Delhi High Court upheld the expansive definition of domestic violence under the Protection of Women from Domestic Violence Act (PWDVA). The court held that domestic violence is not only physical but also emotional, verbal, sexual, and economic abuse. This construction reflects a broad conception of the intimate partner violence dynamics and ensures legal recovery of survivors of abuse for all categories of abuse.
Kusum Sharma & Ors. v. Mahinder Kumar Sharma & Anr.”” (2015): In this case, the Supreme Court emphasized the importance of granting protection orders under the PWDVA to ensure the protection and well-being of survivors. The court reaffirmed that protection orders are to be granted efficiently and in a timely manner to prevent further harm to survivors. This ruling reflects the judiciary’s emphasis on prioritizing survivor safety and granting immediate relief in matters of domestic violence.
ShaluOjha v. Prashant Ojha & Ors. (2016): The Delhi High Court, in this case, reaffirmed the granting of a residence order under the PWDVA to award sole possession of the joint household to the survivor. The court emphasized the provision of survivors with a safe and secure dwelling free of violence. This ruling reaffirms the judiciary’s emphasis on not displacing survivors and ensuring their right to a secure residence.
Nisha Saifi v. Md. Shahid & Ors. (2018): In this case, the Allahabad High Court awarded monetary relief to the survivor under the PWDVA to cover medical and loss of earnings arising from domestic violence. The court recognized monetary loss of abuse on the survivor and emphasized
the duty of the perpetrator to compensate. The ruling highlights the role of the judiciary in addressing the economic consequences of domestic violence and restoring the economic independence of survivors.
Gaurav Nagpal v. Sumedha Nagpal (2009): In this landmark case, the Supreme Court reaffirmed the best interests of the child as the paramount consideration for making orders of custody in domestic violence cases. The court held that the safety and welfare of the child are of paramount importance and may necessitate restricting the access of the perpetrator to the child. The decision establishes the precedent for the protection of the child and the child’s safety to be prioritized in making orders of custody in domestic violence cases.
These case laws highlight the role of the judiciary in interpreting and applying the law to address domestic violence efficaciously, prioritizing survivor safety, providing immediate relief, and holding perpetrators accountable. Through its role in facilitating access to justice and protecting the rights and dignity of survivors, the judiciary assumes an important role.
Domestic Violence During Covid-19
The COVID-19 epidemic has increased pre-existing vulnerabilities and the likelihood of domestic violence globally, especially in India. Lockdown protocols and financial instability have confined victims of domestic abuse to their abusers and restricted their ability to obtain assistance. The lockdown put in place to stop the virus’s spread led to a rise in violence. Despite being victims of domestic abuse, women have been forced to stay inside their houses due to lockdowns and other social isolation measures imposed by all impacted countries, with limited or no social support options available.
One month after the country was placed under lockdown, 315 reports of domestic violence were received, according to statistics issued by the National Commission for Women. The number of reports about domestic abuse doubled. Domestic violence increased as reported by Tamil Nadu Police. During the lockdown, they registered at least 40 such occurrences and got about 25 calls a day. In a similar vein, domestic abuse victims’ complaints to Bangalore Police increased from 10 to 25 calls each day. These statistics show that during the lockdown, there was a spike in domestic violence incidences nationwide. In contrast, domestic abuse complaint calls have decreased, according to groups like Jagori, Shakti Shalini, and the AKS Foundation. The decline may be attributed to confinement at home, constant monitoring and controlling decision-making by the abuser, social isolation of victims from friends and family members, and reduced options for support. The sharp increase in domestic abuse instances that are reported in India’s national news newspapers is indicative of the general trend that most women still feel unsafe in their homes. It should be mentioned that even though the pandemic threat has passed and the lockdown is lifted, the women who were impacted by the violence will always carry the scars from it.
CONCLUSION
In the face of domestic violence, India’s legal framework, anchored by the Protection of Women from Domestic Violence Act (PWDVA) of 2005, stands as a beacon of hope for survivors seeking justice and protection. Overall, while the legal framework concerning domestic violence in India represents a significant step towards addressing this pervasive issue, continued efforts are needed to overcome implementation challenges, enhance awareness, and foster a culture of accountability to effectively protect the rights and dignity of survivors. The judiciary’s role in interpreting and applying the legal framework has been pivotal in shaping outcomes for survivors and holding perpetrators accountable. Landmark judgments have expanded the understanding of domestic violence, prioritized survivor safety, and emphasized the importance of immediate relief and protection measures. The COVID-19 pandemic, with its attendant lockdown measures and social restrictions, exacerbated vulnerabilities and heightened the risk of domestic violence. Despite these challenges, the resilience of survivors and the tireless efforts of advocates and support organizations continue to drive progress in addressing this issue. As India moves forward, it is imperative to sustain and strengthen efforts to combat domestic violence comprehensively.
This requires not only effective implementation and enforcement of existing laws but also broader societal initiatives aimed at promoting gender equality, challenging cultural norms that perpetuate violence, and providing support and resources to survivors. In the journey towards a future free from domestic violence, India must remain committed to upholding the rights and dignity of all its citizens, particularly women, ensuring that no one suffers in silence behind closed doors. Through collective action and unwavering determination, we can create a society where every individual lives free from fear and violence, and where justice and equality prevail.
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