Date published: February 6, 2012
Journal code: WNFS
New Delhi (Women's Feature Service) - When the Protection of Women from Domestic Violence Act (PWDVA) was passed by Parliament in 2005, it marked an important milestone in the country's legislative history. Indira Jaising, executive director, Lawyers Collective Women's Rights Initiative (LCWRI), which was involved with this piece of legislation from its very inception, termed that moment an "unforgettable one". It took a year for the law to come into force, and today - some five years later - while many gains have been made, there continue to be serious lags that undermine the efficacy of the Act. Excerpts from the report, Staying Alive: 5th Monitoring and Evaluation on the Protection of Women from Domestic Violence Act, 2005.
The issue of violence against women in India was highlighted for the first time in the mid-1970s, through the campaign against dowry and related violence.
The campaign led to the Criminal Law (second amendment) Act in 1983, which introduced Section 498A in the Indian Penal Code (IPC). Under this provision, 'cruelty' to the wife by the husband or his relatives was a cognisable, non-bailable offence punishable with imprisonment up to three years and a fine. Cruelty was defined as including both physical and mental cruelty, and any harassment associated with the demand for dowry.
Similarly, Section 304B was introduced in the IPC in 1986, which created a new offence of 'dowry death'. This provision made it possible to prosecute the husband and in-laws of a woman, if she died as a result of burns or any other injury within seven years of marriage under suspicious circumstances and if it could be shown that she had been subjected to cruelty or harassment by the husband/in-laws in relation to the demand for dowry.
Although criminal law is a powerful tool and its very objective is to act as a deterrent, violence against women did not disappear with the enactment of Section 498A. Criminal law, by its very nature, requires the state and its agencies to activate it, which means it necessitates the police to act, to make an arrest, to investigate and to prosecute. Hence, more often than not, the law was defeated by sheer inaction which soon came to be institutionalised all over the country, along with the policy of 'counselling, conciliation and mediation'.
Moreover, Section 498A included cases of everyday violence against women in the home or within its ambit, but Section 304B could only be used when the violence and the eventual death were linked with dowry. Secondly, only married women facing violence at the hands of the husband or their families could claim relief under Section 498A. Thus, a lot of other forms of violence faced in non-matrimonial relationships were not included in these provisions.
For example, it did not protect women from violence in natal relationships or in relationships that have not received the legal sanction of marriage. The definition of 'cruelty' also posed difficulties when one tried to include issues of sexual violence, economic violence or even threats of violence within the ambit of the same. Additionally, when the issue of support systems for affected women comes into play, the criminal law itself has little to offer with respect to taking care of the women's immediate needs of protection, shelter and monetary relief.
The PWDVA: The PWDVA was designed and passed to address the gap between the guarantee of the Constitution of equal rights and the problems faced in existing laws. It provided comprehensive definitions and effective civil reliefs, while incorporating a criminal element which comes into play on breach of civil order by a perpetrator which leads to imprisonment and fine.
Definition of domestic violence
The Act has a fairly broad definition of domestic violence and includes a range of harms, injuries and threats that degrade and/or terrorise women. The definition includes physical, sexual, verbal, emotional and economic abuses, with each aspect further defined with illustration.
The Act was an innovation over the conventional understanding of domestic violence, in that it did not limit the protection against violence solely to marital relationships. It introduced the concept of 'domestic relationship' which included all relationships based on consanguinity, marriage, adoption and even relationships which were 'in the nature of marriage'.
The inclusion of relationships outside the marital context was much needed since there was an urgent need not only to recognise that unmarried women faced violence from their natal families, but also to protect women in bigamous or fraudulent marriages and women who were in relationships in the nature of marriage. These women had been ignored by the laws existing so far and needed the same protection as women in 'legal' marriages.
Right to residence and shared household
The most important aspect of the Bill was the concept of 'right to residence' which protected women from being simply pushed out of their homes. The objective of the law was to provide a right to reside in the shared household and 'due process' protection to the women in domestic relationships.
The Act also introduced the concept of 'shared household' which was more appropriate since women in non-matrimonial relationships were also covered by the law. The PWDVA gave the women the right to reside in the 'shared household', even in the absence of a formal title over it. The Act does not create a substantive right over property but a right to residence and is a safeguard against dispossession.
The office of Protection Officers (Pos) was created to provide a link between the aggrieved women and the legal system. The role of the PO was seen as assisting the woman in accessing the court and other support services (such as legal aid, medical facilities, shelter homes etc.,) and assisting the court during the course of the proceedings and in the enforcement of orders. The PO are often termed as the 'face of the PWDVA'.
In keeping with the objectives of the law and the rights recognised, the Bill provided civil reliefs in the form of protection orders or stop violence orders, residence orders and others, including orders restoring the woman to the shared household, preventing dispossession, restraining the respondent from entering the shared household etc., orders for monetary reliefs including maintenance, compensation orders aimed at providing damages for the mental injury suffered by the aggrieved person, and temporary orders for custody of the children. The civil nature of the reliefs was deemed appropriate in recognition of the fact that a woman facing domestic violence requires holistic support, which cannot be met through a criminal proceeding or a divorce petition.
Challenges to Implementation of the PWDVA
Although domestic violence has now become a legally recognised category in the Indian legal framework, the phenomenon of violence against women within the confines of a home continues.
The law and its implementation face new challenges every day. In the count of law the issue of forced sexual relationships without marriage has taken a long time to be recognised as violence. The inclusion of 'relationships in the nature of marriage' continues to be debated with some questioning the morality of such inclusion while others pose questions of practical aspects of such a relationship. Magistrates across the country have struggled to interpret this law with a purposive approach and provide effective reliefs to women approaching the courts.
The mandate of disposal of cases within 60 days remains far from being achieved, with the case loads of magistrates increasing every day. The nodal departments of the state governments are still developing practices for the stakeholders in their respective states to facilitate the implementation of the law.
(Excerpted from 'Staying Alive: 5th Monitoring and Evaluation on the Protection of Women from Domestic Violence Act, 2005'. This Report has been brought out by LCWRI, in collaboration with the International Center for Research on Women and supported by the UN Trust Fund to End Violence Against Women)
(© Women's Feature Service)