Rights On Paper, Silence In Practice - A Critical Study Of Domestic Violence Law In India
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RIGHTS ON PAPER, SILENCE IN PRACTICE: A CRITICAL
STUDY OF DOMESTIC VIOLENCE LAW IN INDIA Sunil Sudhakar Varnekar, Research Scholar, Alliance, School of Law, Alliance University, Bangalore, Karnataka, India Dr. Upankar Chutia, Associate Professor, Department of Law, Alliance School of Law, Alliance University, Bangalore, Karnataka, India
ABSTRACT
Violence against women is perhaps one of the most rampant types of violation of human rights worldwide and India is not an exception. Women remain the victims of violence despite constitutional provisions of equality, dignity, and right to life under Article 14, 15, and 21 of the Indian Constitution in the very place where they are meant to find some shelter; their homes. Understanding that only penal sanctions like Section 498-A of the Indian Penal Code would not be sufficient, Parliament passed the Protection of Women against Domestic Violence Act, 2005 (PWDVA), which represented a radical change indeed, as domestic violence was considered a civil right as well as a human right.
The Act expanded the definition of domestic violence to cover physical, sexual, emotional and economic violence as well as granting residence rights, protection orders, monetary and other remedies in the present. Nevertheless, almost 20 years after its introduction, the PWDVA has suffered due to major procedural and institutional deficiencies. Protection Officers are undertrained and overworked; shelter homes are few; service providers are few; police responses are still patriarchal; and long delays in the courts weaken the provisions of the law. Doctrinal and judicial critique also shows that although the courts have increasingly broadened the reach of the Act, identifying live-in relationships, invalidating gender-based limitations on respondents, and clarifying residence rights, the transformative possibilities of the law remain undercut by ineffective enforcement mechanisms.
This paper is a critical analysis of the procedural flaws of the PWDVA in the Indian legal system and proposes reform based on lessons learned in other jurisdictions in the United Kingdom, the United States, and Australia. Keywords: Domestic Violence; Protection of Women from Domestic Violence Act, 2005; Indian Legal System; Women’s Rights; Gender Justice; Constitutional Law; Enforcement Lacuna; Comparative Jurisprudence; Procedural Law; Access to Justice.
INTRODUCTION
Domestic violence is one of the most burning problems of women rights in all countries of the world, including India. The equality and dignity that Indian women were assured in the Constitution (Article 141, 152 and 213) are yet to be achieved but Indian women continue to be targets of violence in the very places where they are supposed to be safe, their home. The National Family Health Survey (NFHS-5, 201921)4 reported that 29. 3 percent of women aged between 18 and 49 years of age indicated that they had at some time in their lives been victimized by their spouses. This data however does not reflect the problem since most women do not report abuse due to stigma, fear or economic dependency. Previously, India attempted to resolve such an issue by criminalizing cruelty by a spouse or his relatives by applying the penal code of the Indian Penal Code 1860 (Section 498-A).
Nevertheless, this form of punishment did not pass without censure and was seen to lack the strength to provide immediate civil remedies, such as shelter, maintenance or protection orders. Following the identification of these vices, parliament enacted the Protection of Women from Domestic Violence Act, 2005 (PWDVA) which was presented on October 26, 2006. This law was a paradigm shift, in the sense that: • Causing the meaning of domestic violence to percolate the physical, sexual, verbal, emotional and financial abuse. • Defending wives, as well as women in relationships which have the character of marriage, female relatives, and live-in partners. • The establishment of support systems like Protection Officers and Service Providers to assist the survivors. • Assurances of residence status and of reliefs which otherwise were beyond the reach of criminal law.
1 INDIA CONST. art. 14
2 INDIA CONST. art. 15
3 INDIA CONST. art. 21
4 Ministry of Health & Family Welfare (MoHFW), Government of India, National Family Health Survey
(NFHS-5), 2019–21: India Fact Sheet (Int’l Inst. for Population Sciences 2021).
But after almost 20 years, the difference between statutory framework and ground reality is very big. This legal study of Indian domestic violence legislation is a critical analysis of its procedural and substantive provisions, constitutional background, judicial interpretation, and lessons learnt. It indicates the regions of law which are more idealistic than practical. RESEARCH PROBLEM Although the PWDVA is touted as progressive, its implementation continues to be an uphill task. Domestic violence against women is still being witnessed in many parts of India yet solutions are still far away. The law is not as effective as it should be due to institutional gaps and biases, as well as evidential issues.
Therefore, the research problem may be summed up as: Is the present procedural legislation of the Indian legal system sufficient to deal with domestic violence against women, or is there still a gap between the intent of the legislative work and the real performance? RESEARCH HYPOTHESIS Hypothesis: The Protection of Women by Domestic Violence Act, 2005 has been thoroughly designed but, given the lack of procedural mechanisms, institutional capacity, and pervasive patriarchal bias, it may be argued that there is a huge gap in the implementation of the legislation that fails to protect and bring justice to female victims of domestic violence.
DISCUSSION
Evolution of Domestic Violence Law in India The Indian domestic violence law has adopted the changing socio-legal environment. Section 498-A of the IPC (since its enactment in 1983), which made the cruel treatment of a wife a crime, was the most prevalent during the pre-PWDVA era. It undoubtedly had some deterring effect by penal consequences but was attacked because it was too narrow in its scope, it overcriminalized, and was too limited in its victim-related relief. There were also differences in these judicial interpretations. The economic or emotional abuse is not usually recognized by the courts. Additionally, the women who attempted being charged with the crime were sentenced to longer trials, social penalties, and loss of reconciliation.
So the need did exist that a civil remedy system be established, in which women could easily seek direct protection, and not necessarily have to press criminal charges. Thus the PWDVA 2005 was a milestone. It was the zenith of making criminal and the beginning of rights-focused, civil protective regime. Nonetheless, as the current paper concludes, the requirements of the doctrine are valid, only that implementation is marred with procedural and institutional disadvantages. Doctrinal Framework of the PWDVA The Act consists of five chapters and thirty-seven sections. Key provisions include: • Section 3 presents a broad definition of domestic violence to encompass not only physical violence, but also sexual violence, verbal and emotional violence, and economic violence. This is in line with standards by international conventions of CEDAW and UN.
5 • Section 4 creates a social obligation, permitting any individual who is aware of domestic violence to report, therefore dispelling the privacy myth that the home is a private domain. 6 • Section 9 outlines the responsibilities of Protection officers as the main support structure to the victims. 7 • Section 12 to 23 gives the processes of getting protection orders, residence orders, monetary relief, custody orders and compensation. 8 • Section 17 ascertains the right of the woman to live in the common house even though she has no ownership or title right of the house. 9 This architecture represents a theological belief in gender justice. But the gap here appears in
5 The Protection of Women from Domestic Violence Act, No. 43 of 2005, §§ 3INDIA CODE (2005).
6 Id. §§ 4
7 Id. §§ 9
8 Id. §§ 12–23
9 Id. §§ 17
the procedural processes: Protection Officers are overworked, service providers are limited, and the courts are not thoroughly sensitized. Constitutional and Human Rights Dimensions Domestic violence implicates multiple constitutional rights: Article 14 (Equality before law)10 - The practice of domestic violence continues to create structural inequality between men and women. Article 15(3)11 - Permits special legislation on women, by which the PWDVA is justified. Article 21 (Right to life and dignity)12 - Courts have been consistent in ruling that the right to live with dignity includes the right to live a violence free life. In Francis Coralie Mullin v. The Court 13construed Article 21 to include dignity and humane living in Union Territory of Delhi, A.I.R. 1981 S.C. 746.
The ratification of CEDAW (1979)14 also commits India to make and enact effective legislation in the fight against gender-based violence. In this respect, the PWDVA indicates the effort of India to conform its domestic law to international obligations. Judicial Interpretation of Procedural Gaps The judiciary has been instrumental in shaping the contours of domestic violence law:
1. S.R. Batra v. Taruna Batra, (2007) 3 S.C.C. 169 (India)15
Facts: The respondent-wife argued that she had the right to live in her matrimonial home and it was owned by her mother-in-law. The house was to be considered a shared household and she needed the protection of the PWDVA.
10 INDIA CONST. art. 14.
11 INDIA CONST. art. 15(3).
12 INDIA CONST. art. 21.
13 Francis Coralie Mullin v. Union Territory of Delhi, A.I.R. 1981 S.C. 746 (India).
14 Convention on the Elimination of All Forms of Discrimination against Women, Dec. 18, 1979, 1249 U.N.T.S. 13
15 S.R. Batra v. Taruna Batra, (2007) 3 S.C.C. 169 (India)
Observation & Judgment: The Supreme Court decided that the term, shared household, in Section 2(s) of the PWDVA, only applied to a house, owned by or on rent by the husband, or held in common by both the husband. The Court deprived the wife of the rights to be a resident of the property owned solely by her in-laws. This was a very narrow meaning that many criticized because it watered down the residence rights of women under the Act.
2. Satish Chander Ahuja v. Sneha Ahuja, (2020) 15 S.C.C. 272 (India)16
Facts: Sneha Ahuja, the wife, petitioned to the PWDVA to seek the right to live in a house owned by her father-in-law. Batra made her deny her rights to the Delhi High Court. Observation & Judgment: The Supreme Court reversed Batra, and said that shared household also covers not only all property owned or rented by the husband, but also joint family property or in-laws property where the woman resides in a domestic relationship. The Court broadened the home qualification and revived the intentionalism of the Act.
3. Hiral P. Harsora v. Kusum Narottamdas Harsora, (2016) 10 S.C.C. 165 (India)17
Facts: The constitutionality of the PWDVA Section 2(q) was put into question. The section limited the claims of domestic violence to be made by adult male persons, thus the relatives of women were not included in the list of respondents. Observation & Judgment: Section 2(q) was declared unconstitutional by the Supreme Court, on the basis of
16 Satish Chander Ahuja v. Sneha Ahuja, (2020) 15 S.C.C. 272 (India)
17 Hiral P. Harsora v. Kusum Narottamdas Harsora, (2016) 10 S.C.C. 165 (India)
contravention of Articles 14 and 15. The Court believed that domestic violence can be committed by women, as well, including mothers-in-law or sisters-in-law. This expanded the protection of women victims.
4. Indra Sarma v. V.K.V. Sarma, (2013) 15 S.C.C. 755 (India)18
Facts: A woman in a live-in relationship petitioned under the PWDVA because she was deserted. The question was, was a live in relationship a domestic relationship under Section 2(f) of the Act. Observation & Judgment: The Supreme Court ruled that women who live in a relationship that is close to marriage, can be reimbursed protection by the Act. Nonetheless, the Court also provided a set of parameters to distinguish between valid relationships in the nature of marriage and casual relationships. This case made clear the scope of protection of women other than legally married wives.
5. V.D. Bhanot v. Savita Bhanot, (2012) 3 S.C.C. 183 (India)19
Facts: The complainant-wife made a complaint to PWDVA on domestic violence that occurred before the Act came into effect in 2006. The husband claimed that the Act could not be retrospective. Observation & Judgment: The Supreme Court did find that the PWDVA applies to events of violence that took place even prior to the enactment of the Act as long as the domestic relationship was persisting at the time of filing the complaint. This ruling widened the time frame of protection to women.
18 Indra Sarma v. V.K.V. Sarma, (2013) 15 S.C.C. 755 (India)
19 V.D. Bhanot v. Savita Bhanot, (2012) 3 S.C.C. 183 (India)
The direction of judicial precedents under Protection of Women against Domestic Violence Act, 2005 has been the major factor determining the scope of its operation in India. Premature constraining interpretations, e. g. in S. R. Batra v. In Taruna Batra, (2007) 3 S. C. C. 169, the rights of women to reside were curtailed but it was later rectified in Satish Chander Ahuja v. Sneha Ahuja, (2020) 15 S. C. C. 272 that the definition of shared household was expanded to offer more protection to women. And so in Hiral P. Harsora v. The Supreme Court in Kusum Narottamdas Harsora, (2016) 10 S. C. C. 165 broadened the definition of respondents to include female family members and sisters; therefore, recognizing the existence of female-to-female abuse. The law was further amended in the case of Indra Sarma v. V. K. V. Sarma, (2013) 15 S. C. C.
755, which gave women in live-in unions the protection afforded to married women and men. Savita Bhanot, (2012) 3 S. C. C. 183, further explained that the previous acts of violence might be taken into account provided that the domestic relationship existed when the application was being made. Taken together, these decisions have turned the PWDVA into a broader, victim-centered law, addressing early doctrinal failures and strengthening constitutional promises of dignity and equality of women. Implementation Challenges and Institutional Lacunae The core gap in the PWDVA is the lack of its enforcement in a procedural manner rather than substantively. • Protection Officers (POs): They are frequently assigned as extra duty to already overworked government workers, which makes them incapable of doing a good job. Some states have failed to employ full-time POs.
• Shelter Homes: Section 6 works towards the State obliging to supply shelter homes. In reality, shelters are inadequate, in poor condition and staffed by untrained personnel. • Medical Facilities: Section 7 obliges hospitals to offer medical assistance. But most hospitals do not have policies or trained personnel to approach victims sensitive. • Police Function: Although legally required, police officers often tell away complaints labeling them as family issues. Their patriarchal mentality will mostly place pressure on reconciliation instead of protection.
Delays in Courts: Despite the speed envisaged in the Act, there are usually delays in courts because cases are at the backlog. Most of the time magistrates have no special training in dealing with cases related to gender based violence. In this way, the essential lacuna is the gap between law and practice. Socio-Cultural Barriers The law of India is still operating in the context of a patriarchal world where the issue of domestic violence can be easily brushed off as a family affair. Victims of abuse are ostracized and deeply socially stigmatized when they seek legal redress. Women are often afraid of a loss of honor to the family name or the marital home, a fact that reinforces an underlying system of inequalities already to be abolished by the Constitution itself under Article 14.
Research has revealed that victims always fear taking legal action based on the Protection of Women against Domestic Violence Act, 2005 (PWDVA), owing to social values that demand unity within families, at the expense of human rights. 20 The other formidable barrier is economic dependency. Most women are still dependent financially on their abusers, and this poses a significant deterrent to litigating or even filing complaints. In the case of middle-class women, this is made even harder by social image, as domestic violence is hidden in the name of respectability, and women are coerced to uphold the appearance of a successful marriage. In practice, this creates a chain of silence and denial, with no effective remedy to victims despite the legal rights to a residence, and protection order under Sections 17 and 19 of the PWDVA.
21 It is even more dangerous when it comes to rural women as they might not be aware of their rights under the law or they might not have access to justice institutions established under the PWDVA. Their inability to invoke remedies is also restricted by illiteracy and poor connectivity, and service providers and Protection Officers envisioned by the Act tend to miss women in remote locations, thus further increasing the gap between law and lived reality. Therefore, in conceptual sense, the PWDVA offers all-inclusive protection but due to socio-
20 Biswajit Ghosh & Tanima Chouhari, Legal Protection against Domestic Violence in India: Scope and
Limitations, J. FAM. VIOLENCE, Vol. 26, 319, 324 (2011). 21 Rachana Kaushal, Protection of Women from Domestic Violence Act-2005 Appraisal, MAINSTREAM WEEKLY, Vol. XLVIII, No. 11 (2010). cultural forces such as economic dependence, male patriarchy, and ignorance, access to justice is still elusive to a large majority of victims. 22 Comparative Jurisdictions An analysis of domestic violence legislation in different jurisdictions reveals some of the strengths as well as the weaknesses of the legal framework of PWDVA, 2005 in India. Whereas the United Kingdom, the United States and Australia have established specialized courts, integrated systems of service delivery and police-delivered emergency protection systems, India remains dependent on the general magistrate courts and under-resourced Protection Officers.
The following table summarizes the institutional, enforcement, and support features in these jurisdictions thus highlighting the gaps in the procedures that remain prevalent in the Indian setup. Table 1 – Comparative Legal framework related to Women Protection United States Australia India (Status/Gap) Specialized Feature / United Kingdom Aspect Specialist Domestic Abuse Courts Many jurisdictions Specialist family/domesti No specialized DV courts; PWDVA courts have specialized DV c violence lists/courts in several states matters in magistrate courts with heavy general (SDACs) in many areas; courts or dedicated trained benches; coordinated (e. g.
, Victoria’s caseloads dockets; problemsolving court Specialist Family Violence Courts)23 advocates models s (DVPN/DVP interim orders in some states enforcement uneven O) for rapid, short-term protection24 Police emergency DVPNs/DVP Wide emergency Police can issue shortterm orders (e. g.
, NSW, Police protection available but often Os enable police to remove/keep powers; mandatory/arres under-used; attitudes and training vary widely; limited powers alleged perpetrator away without t-preferred Vic); mandatory risk policies in many states; assessment real-time emergency separation tools victim application emergency protocols protective orders by oncall judges Enforcement tools & breach Breach of orders is a Criminal penalties for Breach is Breach punishable, criminal; electronic monitoring but followthrough weak; limited monitoring; criminal violations; consequences offense; electronic monitoring used in some firearm surrender and active compliance management compliance checks policies common; federal VAWA inconsistent in some jurisdictions pilots offenses enhance accountability26 Residence/shel Occupation Emergency shelter network; Integrated Statutory right to Orders can “Safe at Home”-type reside in shared ter & housing exclude perpetrator; transitional housing; rapid household (s.
17 programs; PWDVA), but shelter stock & housing pathways refuge network with rehousing grants via VAWA/VOCA crisis accommodatio inadequate27 government n; rental assistance funding assessment conferences) counseling + health28 Risk assessment & Standardized Lethality/risk Statemandated risk No uniform national risk tool risk tools; MARACs coordinate police, health, assessments (e. g. , Jacquelyn case conferencing frameworks; regular interor mandated case Campbell’s conferences; coordination depends on local tool); coordinated agency information probation, community response (CCR) NGOs sharing initiative models Timeframes Very rapid via Same-day ex Police-issued interim orders Ex parte relief for interim DVPNs (48– parte orders common; full hearings within possible, but delays common due to docket load
72 hrs)
followed by effective immediately; relief DVPO hearing; injunctions court confirmation and process days/weeks bottlenecks typically within days available quickly Evidentiary Civil standard Civil standard Civil for Similar split; documentation & (balance of probabilities) for orders; orders; criminal for approach criminal standard for proof of nonphysical abuse (economic/emotio nal) often difficult for injunctions; breaches violations criminal standard for in practice breaches Perpetrator Courtmandated Batterer intervention Men’s behavior Counseling directions possible, programs behavior programs (quality varies); change programs with but coverage/quality inconsistent; few change programs; accreditation judicial monitoring in specialist courts practice standards in accredited programs Funding architecture standards some states commissionin g31 Training & National Extensive bench books; prosecutor/polic State guidelines; Patchy training; practice guidance; judicial and police training no consistently enforced national guidelines mandatory e training; training in many agencies curriculum for magistrates, police, traumainformed practice spread on coercive POs control Digital access Online applications/pi E-filing, virtual Online forms, E-filing/virtual hearings present in hearings common; multilingual remote hearings, statewide & reporting lot portals; pockets; no universal digital remote hearings expanded intake for hotlines helplines PWDVA Data & monitoring National stats; VAWA grant reporting; state State reporting Sparse, nonuniform data on MARAC outcomes on order volumes, breaches, outcomes dashboards; PWDVA orders, tracked; inspectorates audit services court performance compliance, outcomes; weak feedback loop Notable innovations metrics Criminalizatio Full faith & MARAM framework; police-issued interim orders; Residence right in statute; multi-relief single forum; thirdn of coercive & controlling credit for orders; integrated court-based behavior; MARACs; party complaints Safe at Home permitted DVPN/O rapid safety32 services; programs firearm relinquishment powers, robust data/metrics33 By the comparative analysis, it can be seen that the statutory design of India is strong conceptually, but weak procedurally.
In contrast to other jurisdictions offering quick emergency response, integrated victim care, and expert adjudication, India is not a state with a coherent enforcement structure to bring rights into life. The experiences of the UK, the US, and Australia indicate that India needs to go beyond legislative intention and invest in specialized infrastructure, integrated multi-agency processes, and systematic training to close the divide between law and practice on the issue of domestic violence protection. Doctrinal Lacuna in Law Doctrinal Lacuna under enforcement of PWDVA. Protection Officers • Conceived as frontline full-time victim support in Section 9. • In practice, frequently made a functional post of part-time appointment with more than one administrative responsibility. • Shortage of committed manpower leads to failure of effective assistance.
Shelters and Medical Facilities • Section 6 requires the provision of shelters; Section 7 requires medical aid. • The facilities are of very low quality, are under-financed, and not accessible, especially in the rural/semi-urban environments. • The lack of safe alternatives is likely to leave survivors without timely relief. Police Protocols • Police often shove off domestic violence as individual issue instead of violation of
33 Biswajit Ghosh & Tanima Chouhari, Legal Protection against Domestic Violence in India: Scope and
Limitations, JOURNAL OF FAMILY VIOLENCE, Vol. 26, 319–330 (2011). constitutional rights. • Lack of required gender-sensitivity training will result in uneven and sometimes disregarding reactions. • Victims face delays, pressure on reconciliation and non-enforcement of protection orders. Judicial Infrastructure • The Act is projected to bring quick solutions, yet ordinary magistrate courts are overwhelmed. • There are no domestic violence courts which are specialized or fast-track courts. • Cases that are supposed to be expedited take months or years to conclude. Resulting Gap The PWDVA is progressive in character and definition. Yet the procedural backbone is fragile--without proper officers, shelters, sensitive policing and fast courts, rights are a dream. The failure of law on paper to translate into remedies in practice is a limitation of the transformative power of the Act.
CONCLUSION
The Protection of Women against Domestic Violence Act of 2005 is rightly considered to be an Indian legal first because it was the first law to define a criminal offence as a crime against civil rights and human dignity, as opposed to a crime against marriage or criminal offence. This broad interpretation of physical, emotional, sexual and economic abuse promoted by it was a forward-looking move that brought India closer to constitutional provisions in Articles 14, 15(3) and 21 and international commitments in CEDAW. Yet, in the history of the Act, extended through almost twenty years of life, the Law has never been transformed into a normal defence of women. When there were no trained Protection Officers, there were no shelters, the policing was patriarchal, the judicial process was sluggish, etc.
--all these, of course, rendered the statute toothless in its application since they left an enormous gap between the intent and its realization in the actual execution. To be able to give the weak justice is the greatest signifier of a law, not its writing. The Act will continue to be more ornamental than functional unless India reinforces the procedural frame of the PWDVA with systematic investments in infrastructure, special courts, gender sensitive trainings and community based awareness. To seal this gap, does not simply reside in the fine tuning of the legislature, but in a desperate constitutional necessity to align itself with the right of women to equality and dignity.
Whether the State can transform the PWDVA to a living implement of justice that truly protects women against the scourge of domestic violence and not a good intentioned law, is the keystone of the future of the PWDVA.
SCOPE
FOR FURTHER RESEARCH Empirical evaluation of protection orders and remedies awarded under the Act and a follow-up of their results and effectiveness over time should be the basis of future research on the PWDVA. Comparative research based on experience (such as that of the United Kingdom, the United States, and Australia) is also necessary and timely, as these countries have already developed specialized courts and integrated service schemes, and India can learn to enhance its response in institutions. We should also have an intersectional analysis, which would explain the effects of the phenomena of caste, poverty, disability and rural-urban division on women experience of violence and access to justice.
Concurrently, the dynamic technological nature of the environment allows rolling out innovative digital options, like online complaints portals, helplines, and tele-counseling, through which the accessibility of remote victims will be enhanced. It is also quite important that the arrangement of protecting officer, police and magistrates training models should be structured in the way that the enforcement mechanisms are not hampered due to the impact of patriarchal mindset or insensitivity. Collectively these research questions can furnish the information and the responses that can narrow the chasm between the noble purpose of the law and its actual execution.
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