HUMAN RIGHTS LAW

THE PROTECTION OF WOMEN

FROM DOMESTIC VIOLENCE
ACT, 2005- A CRITICAL
ANALYSIS
Submitted By: Sambridh Ghimire Id- 2012
Vth Year, B.A., LL.B. (Hons.) Submitted On: September 3rd , 2017
 TABLE OF CONTENTS

Table of Contents ..................................................................................2

Table Of Authorities ..............................................................................3

Research Methodology ..........................................................................4

Introduction ...........................................................................................6

Contextualising Domestic Violence in a Human Rights Framework ...7

Crucial Findings On Implementation of The PWDVA ......................11

Analysis of Judicial Trends .................................................................14

Conclusion ...........................................................................................19

Bibliography ........................................................................................20

2
 TABLE OF AUTHORITIES

Statutes

Code of Criminal Procedure, 1973

Protection of Women from Domestic Violence Act, 2005

Cases Referred

Aruna Parmod Shah v. Union of India [WP. Crl.425/2008Del]

Ashok Vardhan Reddy & Ors. v. P. Savitha Crl.P. No. 7063 of 2008
D Veluswamy v. D Patchaimal (2010) 10 SCC 469
Inderjit Singh Grewal v. State of Punjab & Anr. (2011) 12 SCC 588
Kanwal Sood v. Nawal Kishore& Anr (1983) Cr LJ 173 (SC)
Kavita Dass v. NCT of Delhi & Anr Crl.M.C. 4282/2011
M. Palani v. Meenakshi, AIR 2008 Mad 162
Mangesh Sawant v. Minal Vijay Bhosale & Anr Criminal Writ Petition No. 905 of 2010
Manish Tandon & Ors. v. State and Anr CRL. M.C. No. 1784/2009
P.Babu Venkatesh & Ors. v. Rani 2008-2-LW(Crl)451
S.R Batra v. Tarun Batra (2007) 3 SCC 169
Sri K.M. Revanasiddeshwara v. Smt K.M. Shylaja Criminal Revision Petition No.
836/2011
Vikram Singh v. State of Haryana Criminal Appeal No, 583-DB of 2001
Vineeta Devi v. Bablu Thakur & State of Jharkhand, 2011 (3) JCR 21 (Jhr).

3
 RESEARCH METHODOLOGY

Aims and Objectives

The aim of the project is to critically analyse the Protection of Women from Domestic Violence
Act, 2005.

The objective underlying this study is to delve into the merits of the PWDVA, examine the
issues surrounding the implementation of the Act, and trace some judicial trends in this regard.

Scope and Limitations

The scope of the project extends to understanding the need of the PWDVA, evaluate its uses
and problematic provisions, study the gaps in implementation and look at the judicial attitude
towards the PWDVA through analysis of some case laws.

The paper restricts itself to the PWDVA alone and doesnt cover domestic violence in the
context of other domestic or international legislations. The focus has been to present a overview
which gives insights into the practical working of the Act rather than doing a simply theoretical
analysis.

Research Questions

Through this paper, the researcher seeks to answer the following questions :

What was the need of the PWDVA?

How is the Act useful?
Are there any deficiencies in the legislation?
What are the hurdles faced in successful implementation of the Act?
How has the judiciary approached the cases involving the PWDVA?

Chapterisation

The paper is an article format and covers aspects like need for the PWDVA, the merits and
demerits of the Act, the problems in implementation, judicial trends, etc.

4
Sources of Material

The researcher has relied on a number of primary and secondary sources such as reports by
governmental and non governmental organisations, scholarly articles, commentaries,
newspaper articles, etc.

Style Of Writing

The researcher has adopted a purely analytical style of writing throughout the course of the
paper in order to critically examine the PWDVA.

Mode of Citation

The NLS Guide to Uniform Legal Citation has been followed.

5
 INTRODUCTION

Violence against women is an age old practice that is done in the name of religion, traditions,
etc. It wont be completely wrong to say that the practice is founded in the social setup of Indian
society which is grossly patriarchal and gender discrimination is visible in all aspects of life.
The bias against females manifests itself in various kinds of violence within home and since
this constitutes a private sphere that is exempt from state interference, the issue of domestic
violence was free from any legal restrictions that is warranted for in any crime. The laws were
not beneficial initially due to the patriarchal indoctrination of violence at home not being a
wrong. It manifests itself in multiple forms like child marriage, honour killing and even witch
hunting. Most of the times, violence against women arises on account of the betrayal of
stereotypes by women however the resistance to such violence is only a recent development.
Voices are being raises against inhuman behaviour towards women and initiatives are being
taken to bring change through awareness by education, gender sensitisation drives, legal
reforms, etc. In the past as well, there were movements to protect women rights through
prevention of sati, child marriage and promotion of remarriage of widows. However, it must
be noted that though domestic violence as a term did not find a place in such reforms, the
objective underlying it was to make the life of the woman more humane.1

Violence against women takes place in the most intimate places like family which though
considered as a place of care can be a place where brutality is expressed. The CEDAW vide
recommendation 19 appealed to states to end gender based violence by taking immediate steps
and coming up with places of action, training programmes, etc. 2 Thus there has been national
and international acknowledgement of the violence perpetrated against women and the
consequential breach of their human rights which obstructs the overall development of women.
Women rights as an integral component of the international human rights regime was
reaffirmed by the world community at the Fourth World Conference on Women at Beijing and
the Beijing Declaration was a step towards elimination of violence against women and in light
of this, the Government took measures to protect women from domestic violence. These

1
R. Kaur & S. Garg, Addressing Domestic Violence Against Women: An Unfinished Agenda, vol. 33(2), INDIAN
JOURNAL OF COMMUNITY MEDICINE (2008) available at
http://www.ncbi.nlm.nih.gov/pmc/articles/PMC2784629/
2
R. Ray & B. Purkayastha, Challenges in Localising Global Human Rights, Vol. 7(1), SOCIETIES WITHOUT
BORDERS , 35 (2012)

6
include measures like gender sensitisation, legal awareness programs, setting up of counselling
centres, women rehabilitation and empowerment centres.3

Domestic violence, like in most of the world, is common in India. Most of the cases received
the state human rights commissions include cases of domestic violence. It is witnessed that
traditional abuses of human rights are influenced by gender.4 Domestic Violence amounts to a
severe contravention of fundamental human rights prescribed in the Universal Declaration of
Human Rights. Though domestic violence was recognised as a criminal act in 1983 itself, the
PWDVA became effective in 2005 in response to the need for a specific and comprehensive
legislation to deal with domestic violence5 and in furtherance of the constitutionally guaranteed
rights to women under Article 14, 15 and 21.6

Through the course of this paper, the researcher attempts to critically evaluate the PWDVA,
and examine how it is put in practice by analysing reports and studies on implementation and
studying some judicial decisions.

CONTEXTUALISING DOMESTIC VIOLENCE IN A HUMAN RIGHTS FRAMEWORK

The characterization of Domestic Violence as a Human Rights issue has very often been
disputed in academic circles. The current Human Rights regime is almost entirely the outcome
of western ideas and concepts of individual autonomy and integrity and its protection from the
violations by the state. Even so, the international language of Human Rights is gender neutral
in terms of the protection it accords to all human beings. For instance, the Universal Declaration
of Human Rights is applicable to all human beings and not just men, the recognition that it
grants to the intrinsic inviolable rights of human beings applies as much to women as it does
to men. In fact, under its tenets with regard to categories on the basis of which discrimination
against human beings is prohibited, discrimination on the basis of sex ranks as one of the most
ubiquitous and oft used ones. This is because, in simple words, human rights are the basic rights

3
A. Mishra et al, A Cross Sectional Study to Find Out the Prevalence of Different Types of Domestic Violence
in Gwalior City and to Identify the Various Risk and Protective Factors for Domestic Violence , vol 39(1),
INDIAN JOURNAL OF COMMUNITY MEDICINE (2014)
4
Supra note 2, at 34.
5
J. Sen, PWDVA 2005: A Handbook for Parliamentarians, CENTRE FOR LEGISLATIVE RESEARCH AND
ADVOCACY, OXFAM INDIA , 5(2014)
6
R.H. Waghamode et al, Domestic Violence Against Women : An Analysis, vol. 2(1), INTERNATIONAL
RESEARCH JOURNAL OF SOCIAL SCIENCES, 35 (2013)

7
that are guaranteed to all human beings irrespective of their sex, religion, nationality, race or
language.7

However, even though the concept of human rights was gender neutral in theory, it had to
interact with patriarchal and gender biased domestic laws that relegated the rights of women to
the backburner. The confluence of international notions of human rights with the domestic laws
of countries often created structural difficulties wherein an artificial distinction between
domestic and public spheres was created. This distinction was such that it led to the general
impression that the state was responsible for human rights violations only in the public sphere
and what happened in the private domain was for the family to deal with. 8 The brunt of this
artificial distinction was borne mostly by women as the majority of women were and still are
confined to the four walls of the house. This along with the overwhelming belief that human
rights are only those rights that can be enforced against the state largely led to the relegation of
womens issues in general and domestic violence against women in particular to being
considered general law and order issues and not violations of the intrinsic dignity and rights of
women as human beings. The general belief among the majority of the upholders of human
rights that violations of human rights could only be taken up as against the state and not as
against private individuals only served to further exacerbated the problem.9

Entrenched biases along gender lines in the domestic laws and attitudes of enforcers in various
countries have often led to situations when even blatant violations of civil and political rights
of women were considered to be acceptable. An illustrative example of this was the statement
made by the Peruvian prosecutor to a visiting Amnesty International delegation that the rape
of civilian women by soldiers conducting anti-insurgency operations was only to be expected.10

The systemic manner in which states have failed to recognise and take action against crimes
perpetrated against women in the domestic sphere including the more heinous ones of murder,
rape and physical abuse is one of the biggest blind spots in the international human rights

7
Z. Craven, Human Rights and Domestic Violence, Australian Domestic and Family Violence Clearinghouse,
available at http://www.adfvc.unsw.edu.au/PDF%20files/human_rights.pdf (Last visited on 20th August, 2017).
8
D.E. Thomas and, M.E. Beasley, Domestic Violence as a Human Rights Issue, 15(1) HUMAN RIGHTS
QUARTERLY 37-38 (1993).
9
Thomas and, Beasley, Id.
10
Thomas and Beasley, Supra note 2, at 39-40.

8
framework and one of the largest issues that the international human rights arena has failed to
address adequately.11

All hope, however, is not lost. There exists a substantial school of thought that believes that
the systemic failure of states of take cognizance of and prosecute offenders for crimes against
women in the domestic sphere is in itself a violation of the human rights of dignity and bodily
integrity that are the very basic rights of all women. Moreover, the need for specific human
rights instruments outlining and contextualising human rights in accordance with the unique
needs of women was felt in the international sphere and the Convention on the Elimination of
All Forms of Discrimination against Women (hereinafter the convention)came into existence
in 1979 and entered into force as an international treaty in 1981.12 One of the major objectives
of the convention was to enlarge the popular definition of human rights so as to give formal
recognition to the role played by culture and traditions of nations all over the world in curtailing
the basic human rights of women that should otherwise be enjoyed by one and all. The
convention stated on record for the first time that very often social and cultural stereotyping of
women led to their acquiring a legal and institutional nature over time and often negated the
gender neutral objectives of international human rights efforts and instruments.13

While the convention did not specifically mention the malaise of domestic violence in its text,
it did recognise the large gambit of duties that the state had towards ensuring equal rights for
men and women. An instance of the many such duties was in the form of Article 5 of the
convention which explicitly stated that it is the duty of nation states to initiative to modify the
traditional social and cultural interactions of men and women so as to ensure the elimination
of cultural practices that thrive on notions of inferiority of women and consequent superiority
of men.14 The convention also stressed heavily on the equality of men and women under the
law and in the eyes of the law thereby ensuring that the states were explicitly placed with the
responsibility of protecting the legal rights of women without any discrimination. Moreover,
the duty of equipping women in terms of education, health care, public offices etc. was also
placed within the ambit of the state.15

11
Craven, Supra note 1.
12
Introduction, Convention on Elimination of All Forms of Discrimination Against Women, 1979, available at
http://www.un.org/womenwatch/daw/cedaw/text/econvention.htm (Last visited on 1st September, 2017.)
13
Id.
14
Article 5, Convention on Elimination of All Forms of Discrimination Against Women, 1979.
15
Article 10, Convention on Elimination of All Forms of Discrimination Against Women, 1979; Article 11,
Convention on Elimination of All Forms of Discrimination Against Women, 1979; Article 12, Convention on

9
That the states role in empowering women is essential goes without saying. However, the
same acquires a uniquely important nature in the context of women who are victims of domestic
violence. The same can be understood with the aid of the capability approach as has been
ably enunciated by eminent scholars like Dr. Amartya Sen and Martha Nussbaum.

The capability approach was first propagated by noted economist and Nobel laureate Amartya
Sen as an alternative to the predominant and extremely common conception of poverty only in
economic terms. As per Amartya Sen, capability is the ability of an individual to achieve a
certain degree of functioning. In simple words, the capability of an individual is the determinant
of what she is and all that she can be. Even though Amartya Sen was the one who enunciated
the capability approach, he never did come up with an exhaustive list of essential capabilities
that every person should possess.16 This lacuna was rectified by Martha Nussbaum who
extrapolated his theory to include certain non negotiable capabilities including the ability to be
literate, to be in good health, to be part of a larger community, to be able to freely express ones
thoughts, beliefs and ideas etc. She also categorically stated that these were certain entitlements
that were especially important in the context of women as women were infinitely more likely
to have less access to such entitlements than men.17

Though, such a state of affairs is true for most countries ,it is especially true for a country like
India where there are systemic differences in the way education, healthcare, access to labour
markets, access to institutionalised credits, access to justice etc. are accorded to women as
opposed to men. While female education has always been accorded low priority in India
irrespective of the social strata to which the woman belongs to, the roadblocks to accessing
effective health care have been endemic and continuous in spite of incessant government efforts
to remedy the situation, possibly owing to the disdain with which women are viewed by
healthcare workers due to deep rooted notions of patriarchy.18

Elimination of All Forms of Discrimination Against Women, 1979; Article 13, Convention on Elimination of All
Forms of Discrimination Against Women, 1979.
16
A. Sen, THE STANDARD OF LIVING, 14 (G. Hawthorne, ed., 1988).
17
M.C. Nussbaum, Capabilities as Fundamental Human Entitlements: Sen and Social Justice in CAPABILITIES,
FREEDOM AND EQUALITY: AMARTYA SENS WORK FROM A GENDER PERSPECTIVE 47, 55 (B. Agarwal et al, ed.,
2007).
18
Nussbaum, Supra note 11; N. Kabeer, Social Exclusion and the MDGs: The Challenge of Durable Inequalities
in the Asian Context, presented in Asia 2015 Conference (London, United Kingdom, 6-7 March, 2006) available
at http://www.eldis.org/vfile/upload/1/document/0708/DOC21178.pdf(last visited on 23rd August, 2017).

10
The lack of presence of adequate women in the workforce is the outcome of the seclusion of
the majority of the women within the four walls of the house borne out of the regressive socio-
cultural belief that the place of women lays in the private domain the house. An outcome of the
same is the extremely limited access that women have to institutionalised credit as lack of
employment reduces their credit worthiness to an abysmal level. All of the above also affect
the ability of women to effectively access and make use of the established justice system in the
country leading to a situation where they have no means of seeing the enforcement of their
basic human rights.19

The lack of the above essential capabilities on the part of women that makes them very
vulnerable as compared to men also saddles them with the inability to maintain their bodily
integrity. The complete state of disempowerment in which women reside coupled with
absolutely no efforts from the government to provide them with their basic entitlements puts
them in a situation wherein they are extremely vulnerable to domestic violence meted out to
them within the four walls of the house. The failure of state institutions to protect them by
enforcing international human rights norms owing to deep seated patriarchy in the system itself
coupled with their own lack of capability to protect themselves and demand enforcement of
their basic right to bodily integrity leads to an egregious large scale abuse of human rights that
goes largely unnoticed and unaddressed. In such a context, the study of the DV Act in India
becomes paramount in order to understand the measures taken by the Indian government in
countering the malaise of domestic violence and analyse its efficacy and functioning.

CRUCIAL FINDINGS ON IMPLEMENTATION OF THE PWDVA

A study by TISS revealed that the Act is used mostly by married women who are under 30 and
against their husband and in laws. There have been very few cases filed in connection with live
in relationships but this is hard to confirm since women claim they are married to their partners
perhaps because of the social stigma that live in relationships attract. The study also revealed

19
Contributors from theWorld Bank, POVERTY AND SOCIAL EXCLUSION IN INDIA 127, 127-129 (2011).

11
that the women tend to be from a lower socio economic status than the respondents and most
of the women petitioners are homemakers economically dependent on the respondent and thus
more vulnerable to violence which renders them destitute. Dowry was seen as being the most
prominent cause of harassment apart from alcoholism and extra marital affairs. It was observed
that the women seek legal help mostly to reconcile with their spouse or to stop the violence but
mostly they used legal aid as a last resort. There was found to be lack of awareness about the
law amongst highly educated women as well. It was seen that women try other kinds of help
from friends, family, panchayats and religious institutions as well before approaching courts.
The deterring factor behind not approaching a court would be that they feared negative
consequences on their matrimonial life if they approached courts. Lack of awareness or
emotional/ financial support was another reason behind not seeking legal recourse.20

Medical and shelter facilities have been invisible in most states, the lack of transparency, under
spending of resources allocated are common complaints. The attitude implementation agencies
needs to be overhauled. Surveys also indicate that the women in rural areas tend to face more
domestic violence than in urban areas. But the benefit tends to be restricted to a section of
urban married women because the of delays in judgements and victims are often asked to opt
for mutually settling their disputes or settlement with a compromise prior to filing the case
itself. 21

Studies reflect that social stigma and lengthy burdensome process of criminal justice
constitutes one of the primary reasons behind women not reporting incidents of domestic
violence.22 Lack of sufficient mechanisms in the form of protection officers, service providers
result in lack of access to justice and inability to secure immediate relief. This is because of
empty posts, overburdening of existing officials, lack of training, etc. 23

Rampant police corruption stalls the justice delivery process. Cases against the influential and
wealthy accused are not investigated properly and others escape by paying bribes. The police
officials exploit the legislation to extract money from the accused.24

20
Quest for Justice- A Study of the Implementation of the Protection of Women from Domestic Violence Act,
2005 conducted by M. Sakhrani & T.J. Panchal, 185-187, MINISTRY OF WOMEN & CHILD DEVELOPMENT,
GOVERNMENT OF INDIA AND SCHOOL OF SOCIAL WORK, TATA INSTITUTE OF SOCIAL SCIENCES, MUMBAI
21
Ghosh, How Does the Legal Framework Protect Victims of Dowry and Domestic Violence in India? A
Critical Review, 412, 413 (2013) available at http://www.researchgate.net/publication/245536203
22
Supra note 5, at 5.
23
Supra note 5, at 16.
24
Supra note 11, at 338

12
The attitude of the police tends to re-victimise the women. For instance, in many cases the
police not only fail to respond but also send the women complaining back home by dismissing
their complaints as mere domestic disputes that should be handled privately. This further gives
rise to the fear that the complaints will not be dealt with seriously and this is one of the factors
behind underreporting of these incidents25

It is mostly seen that since the police tend to be located near the accuseds residence they tend
to take his side and dont afford enough assistance to the victim and this becomes even more
difficult when the children of the victim are studying in institutions that are located close to the
husbands residence.26

Studies have also reported that the tendency of spousal violence is greater when the spouse has
witness similar treatment being meted out to their mothers and amongst men who are alcoholic.
Surprisingly, in cases where the wife is earning more than their husbands also, the chances of
domestic violence are high.27

Lack of awareness and inadequate infrastructure form of the key problems in implementation.
Women not only feared harassment at the hands of the police officials but also further violence
from their spouse if they were to seek legal help, this accompanied by dependency on their
husbands and non timely nor speedy disposal of cases was one of the main reasons behind
withdrawing complaints28

A field study revealed other problems faced under the PWDVA such as delays in delivery of
justice due to limited judicial resources, lack of training of magistrates, difficulties in
implementation of orders, paucity of good lawyers, apathy of society towards victims, non
29
acceptance of counselling as a solution, administrative lacunae, false filing of cases , etc.
Inadequacy of legal aid, poor quality of services when available, high cost of litigation, lack of
coordination amongst agencies are some of the other problems in implementation.30

25
Supra note 11, at 351
26
A. Mili, Domestic Violence Act Fails to Serve Its Purpose NEW INDIAN EXPRESS, available at
http://www.newindianexpress.com/states/kerala/Domestic-Violence-Act-Fails-to-Serve-Its-
Purpose/2015/01/19/article2625771.ece
27
https://gritprajnya.wordpress.com/tag/2005-protection-of-women-from-domestic-violence-act-pwdva/
28
Addressing Domestic Violence in India: Filling the Gap between Intent and Outcomes, INSTITUTE OF SOCIAL
STUDIES TRUST, 11, 12 (2012)
29
Supra note 18, at 413-415.
30
Protection Of Women From Domestic Violence Act, 2005, Its Effectiveness & Actual Working Available
Under The Act. 12,1 3 available at http://ssrn.com/abstract=1519385

13
Inadequate number of service providers due to lack of registration by NGOs and low number
of appointments of protection officers combined with increased caseload and lack of
experience of officials in dealing with cases of domestic violence have created further hurdles.
Moreover ineffective monitoring and follow of complaints has rendered the process void and
ignores the possible endangered safety of the victim after filing of complaints.31

It is seen that the maintenance awarded seems more at the lower courts because the higher
courts tend to reduce the maintenance amount granted..32

Physical abuse is the most commonly reported form of abuse and the husbands are generally
the respondents under the PWDVA. Physical abuse caused by alcoholism of the husband and
low literacy status and financial dependence have been discovered as being the most popular
findings of studies on domestic violence. Studies indicate that those who have a low literacy
status, are housewives, have low family income, live away from their natal house are more
often victims of domestic violence.33

Despite training, the protection officers and police as well suggest that the parties settle or
compromise the matter and opt for counselling rather than taking recourse to justice 34 The
reduction in the number of cases dont signify that the instances of the violent incidents has
decreased but show that more people tend to settle the matter outside court and only the cases
which do not settle in compromise tend to be taken ahead in courts. 35

ANALYSIS OF JUDICIAL TRENDS

Cases initiated under the PWDVA have seen both successes and failures. In this section, the
researcher examines certain case laws that reflect the judicial attitude towards the PWDVA and

31
R. Lahiri, Protection of Women from Domestic Violence Act, 2005 : The Current Situation, HUMAN RIGHTS
LAW NETWORK (2009)
32
J. Kothari, Undermining the Domestic Violence Law, available at http://infochangeindia.org/agenda/access-to-
justice/undermining-the-domestic-violence-law.html
33
Supra note 3.
34
A. Dhar, Survey: Victims as Women, THE HINDU available at
http://www.thehindu.com/features/metroplus/society/survey-women-as-victims/article2866364.ece
35
Supra note 23.

14
its victims, in order to examine the contribution of the judiciary towards the successful working
of the Act.

Live in Relationships

The PWDVA gives protection to women in relationships in the nature of marriage. The status
of the females is vulnerable in live in relationships given the fact that she may be physically
and emotionally exploited in the relationship. However in D Veluswamy v D Patchaimal36, the
Supreme Court clarified that all live in relationships do not get the benefit of the act and they
must fulfil certain conditions in order to be considered as relationships in the nature of
marriage. Here though neither party invoked the PWDVA, the court considered it important to
look it from the perspective of the PWDVA and interpreted relationship in the nature of
marriage as those which satisfied two conditions. Firstly, the couple should hold themselves
out to society as being like spouses by virtue of cohabiting for a significant period of time and
secondly, they should be of legally allowed to marry and be of marriageable age. This
judgement restricted the scope of the law and the ability of many to make use of the PWDVA.37

38
In Aruna Parmod Shah v. Union of India the court dismissed the contention that making
relationships in the nature of marriage akin to marital relationships under Section 2(f) was
derogatory to the rights of lawfully wedded wives. The court further noted that the similar
treatment did not take away from the sanctity of marriage since it could be assumed that the
live in relationship is usually initiated by the male.

The CrPC39 and the HMA both dont recognise live in relationships but the PWDVA allows
aggrieved live in partners to seek protection and maintenance in the form of alimony. The
judicial attitude is still not in favour of women. For instance, while cautioning on the rise in
claims arising out of live-ins in the future, it has been remarked that merely spending weekends
together or a one-night stand would not make it a domestic relationship.40 Thus While laying
down restrictions on what kind of live in relationships amount to marriage, the courts have
excluded those where the man is maintaining his mistress for solely sexual purposes.

36
D Veluswamy v. D Patchaimal (2010) 10 SCC 469
37
P. Badarinath, The Challenge of Subjectivity within Courts: Interpreting the Domestic Violence Act, vol.
XLVI (12), ECONOMIC AND POLITICAL WEEKLY, 16,17 (2011)
38
Aruna Parmod Shah v. Union of India [WP. Crl.425/2008Del]
39
Exception to Section 375 of the IPC excludes sexual acts by a husband with his wife from the ambit of rape.
Though married women may seek recourse to Section 498A for marital cruelty.
40
https://indialawyers.wordpress.com/category/live-in-relationship/

15
In Vineeta Devi v. Bablu Thakur,41 the court remarked that live in relations were not a part of
Indian culture and hence should not be protected under Indian laws.

In M. Palalni v. Meenakshi,42 domestic relationships were construed as including relationships

between two people who had been living together over a period of time, regardless of whether
they appeared to be married to each other in order to make a claim under the Act and the court
went on to consider for this purpose even those couples who were having consensual sexual
relations and were cohabiting for that purpose alone.

Judges have also been hesitant in awarding ex-parte orders even in extreme circumstances
mandating such orders. The judiciary also tends to reflect the belief that women need to be
disciplined in order to make a marriage successful and that women are making unnecessary
fuss about domestic violence. The attitude is even worse in the case of live in relationships
where the magistrates feel that the women invite such violence by entering into such
illegitimate relationships43

Right of Residence

In Kavita Dass v. NCT of Delhi & Anr44 following the judgement of the Apex Court in Smt
Kanwal Sood v. Nawal Kishore& Anr,45 the Delhi High Court upheld the womens right as a
legally wedded wife to live with the respondent even if he lives in an ancestral property or his
own acquired house or rented place.

In S.R Batra v. Tarun Batra46, the Supreme Court had restricted the right to reside to the
husbands property alone and excluded the self acquired property belonging to in-laws and this
judgment attracted severe criticism for contradiction the essence of section 2(s) which provided
for shared household regardless of the right or title of the wife or husband in that property.
Though the other judgements have reiterated the meaning of shared household in section 2(s)
the repercussions of the Batra case continue to be visible in the lower judiciary and unfairly
constrains the womens right to reside.47

41
Vineeta Devi v. Bablu Thakur & State of Jharkhand, 2011 (3) JCR 21 (Jhr).
42
M. Palani v. Meenakshi, AIR 2008 Mad 162.
43
T.K. Rajalakshmi, Gender Issues- Law and Loopholes, Vol. 27(2), THE FRONTLINE (2010) available at
http://www.frontline.in/static/html/fl2702/stories/20100129270209200.htm
44
Kavita Dass v. NCT of Delhi & Anr Crl.M.C. 4282/2011
45
Kanwal Sood v. Nawal Kishore& Anr (1983) Cr LJ 173 (SC)
46
S.R Batra v. Tarun Batra (2007) 3 SCC 169
47
Supra note 5, at 18.

16
In P.Babu Venkatesh & Ors. v. Rani48, the husband attempted to safeguard himself from the
womans right to residence under the Act by transferring the property in his mothers name.
The court observed that before dispossession, both parties had resided their jointly

In Lt. Col. V.D. Bhanot v. Savita Bhanot49 , in a landmark judgement, the Supreme Court
allowed the retrospective application of the Act. It noted that the woman who had previously
lived in a shared household would be entitled to claim reliefs under the Act even though she
didnt reside there any longer, thus enabling her right over the matrimonial home so she could
live her life with dignity. The retrospective application is allowed based on the logic that the
woman continue to suffer the consequences of the dispossession and this the PWDVA relates
to the present and reliefs cannot be viewed as retrospective application of the PWDVA.50

Miscellaneous

In Manish Tandon & Ors. v. State and Anr51, it was acknowledged that though the Act was a
civil legislation, in order to expedite matters and reduce procedural delays the magistrate courts
set up under the CrPC are the forums for enforcing these rights

Since the proceedings under the PWDVA are not criminal but civil in nature, it has been held
that Section 482 of the CrPC cannot be invoked to quash proceedings under the PWDVA52
Though this reflects the correct legal position, it was unfortunate that the Apex Court went
ahead and quashed the proceedings in the case of Inderjit Singh Grewal v. State of Punjab &
Anr.53

The applicability of the limitation act to the PWDVA has also been a cause of concern
regarding the effective implementation of the Act. Though Section 29(3) of the limitation act
bars it from being applied to laws relating to marriage or divorce, it has been held that the
provision is not applicable to the PWDVA.54 This is problematic given that victims of domestic
violence tend to take a long time before emerging and claiming remedies. By applying the

48
P.Babu Venkatesh & Ors. v. Rani 2008-2-LW(Crl)451
49
V.D. Bhanot v. Savita Bhanot Special Leave Petition (Crl.) No. 3916 of 2010, Decided On: 07.02.2012.
50
STAYING ALIVE- EVALUATING COURT ORDERS, SIXTH EVALUATION AND MONITORING REPORT, 2013 ON THE
PROTECTION OF WOMEN FROM DOMESTIC VIOLENCE ACT, 28 available at http://www.lawyerscollective.org/wp-
content/uploads/2012/07/Staying-Alive-Evaluating-Court-Orders.pdf
51 Manish Tandon & Ors. v. State and Anr CRL. M.C. No. 1784/2009 (Delhi High Court)
52
Mangesh Sawant v. Minal Vijay Bhosale & Anr Criminal Writ Petition No. 905 of 2010, Decided On:
05.10.2011
53
Inderjit Singh Grewal v. State of Punjab & Anr. (2011) 12 SCC 588
54
Sri K.M. Revanasiddeshwara v. Smt K.M. Shylaja Criminal Revision Petition No. 836/2011, High Court of
Karnataka at Bengaluru, Decided On: 25.01.2012

17
Limitation Act to the PWDVA, the court restricts the access to solutions available under the
Act. The distinction made by saying that the PWDVA is not linked to divorce or marriage is
also questionable.

The courts have attempted to extend the application of the Act as far as possible. In a case, the
Andhra Pradesh High Court noted that the Indian Courts will have the right to exercise
jurisdiction even when the parties reside abroad if some acts of domestic violence took place
in India. 55

Regarding the potential misuse of the Act the Madras High Court also noted that women would
not be able to resist the temptation of teaching their male relatives a lesson and will end up
filing false and frivolous cases.56

Though there are hardly any judgements dealing solely with marital rape, an analysis of
judgements on rape reveal how it violates the sexual privacy of women. In Vikram Singh v.
State of Haryana57, the husband was involved in the gang rape of his wife. The Punjab and
Haryana High Court upheld the victims right to privacy and imprisoned the husband as well
while noting that the rapist violates the integrity of the victim and deserves no sympathy from
the society or legal system

55
A. Ashok Vardhan Reddy & Ors. v. P. Savitha Crl.P. No. 7063 of 2008, Decided On: 29.02.2012, G.
BhavaniPrasad,J
56
M. Imranullah, Domestic Violence Act Prone to Misuse, THE HINDU available at
http://www.thehindu.com/news/cities/Madurai/domestic-violence-act-prone-to-misuse-says-high-
court/article7331523.ece
57
Vikram Singh v. State of Haryana Criminal Appeal No, 583-DB of 2001, Decided on 06.02.2003

18
 CONCLUSION

Indira Jaising, a prominent activist of women rights has opined that the justice system doesnt
give adequate remedy to the victims and are unable to cater to the immediate needs during trial
and a new law is needed to protect women while they wait for justice.58

There is significant research which has indicated that there is a nexus between the economic
status of women and the violence faced. A possible solution to this would be to make the
women economically independent. The term economic abuse under the PWDVA should also
be given a broad interpretation to include denial of a womans own economic resources as well
due to control over the same being exercised by the husbands.59

Special women police stations, sensitisation of judiciary, awareness drives etc. will help curb
domestic violence issues. For the PWDVA to be effective, it is important for the judiciary to
understand the provisions of the PWDVA and start understanding it is a civil remedy rather
than treating it like a criminal legislation. The need for the PWDVA to work for the
improvement of the status of women cannot be done without judicial aid.

On the whole, the PWDVA is an impressive attempt of the government to clarify the position
of the state and the law and to institute a robust infrastructure for ensuring effective
implementation. Greater awareness of violence and womens rights will reduce the incidents
of violence over time.

However, the problem extends beyond implementation gaps to the social mindset. The public
opposition to PWDVA reflects the necessity for an immediate change in the mindset of the
society. Society must start considering it as an unacceptable crime. It is high time that it is
acknowledged as a public issue and not a private matter.

58
Critical Eye Analysis Of Domestic Violence Act, 2005 (Protection Of Women Against Domestic Violence Act)
, 2 available at http://ssrn.com/abstract=1840628
59
P. Vyas, Reconceptualizing Domestic Violence In India: Economic Abuse and the Need for Broad Statutory
Interpretation to Promote Womens Fundamental Rights, vol 13, MICHIGAN JOURNAL OF GENDER & LAW, 200.

19
 BIBLIOGRAPHY

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(2014)
B. Jhamb, The Missing Link in the Domestic Violence Act, vol. XLVI (33), ECONOMIC
AND POLITICAL WEEKLY (2011)
Choughuri, Protection of Women from Domestic Violence Act, 2005- A Critical
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violence-act-a-critical-exegesis/
Critical Eye Analysis Of Domestic Violence Act, 2005 (Protection Of Women Against
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Ghosh, How Does the Legal Framework Protect Victims of Dowry and Domestic
Violence in India? A Critical Review (2013)
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P. Awasthi, Tackling Domestic Violence- A Law to Help Women, But Who is Enforcing
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P. Badarinath, The Challenge of Subjectivity within Courts: Interpreting the Domestic
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P. Vyas, Reconceptualizing Domestic Violence In India: Economic Abuse and the Need
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 Prevention Of Violence Against Women And Girls : What Does The Evidence Say? ,
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Books

Ending Domestic Violence Through Non Violence: A Manual For PWDVA Protection
Officers, LAWYERS COLLECTIVE &WOMENS RIGHT INITIATIVE (2009)
J. Sen, PWDVA 2005: A Handbook for Parliamentarians, CENTRE FOR LEGISLATIVE
RESEARCH AND ADVOCACY, OXFAM INDIA (2014)
S. Uma, ADDRESSING DOMESTIC VIOLENCE THROUGH THE LAW: A GUIDE TO

PROTECTION OF WOMEN FROM DOMESTIC VIOLENCE ACT, 2005 ( 2010)

21
Reports

Addressing Domestic Violence in India: Filling the Gap between Intent and Outcomes,
INSTITUTE OF SOCIAL STUDIES TRUST (2012)
Protection of Women from Domestic Violence, OXFAM INDIA POLICY BRIEF NO. 4
(2012)
Quest for Justice- A Study of the Implementation of the Protection of Women from
Domestic Violence Act, 2005 conducted by M. Sakhrani & T.J. Panchal, MINISTRY OF
WOMEN & CHILD DEVELOPMENT, GOVERNMENT OF INDIA AND SCHOOL OF SOCIAL
WORK, TATA INSTITUTE OF SOCIAL SCIENCES, MUMBAI
Staying Alive- Evaluating Court Orders, Sixth Evaluation and Monitoring Report, 2013
on the Protection of Women from Domestic Violence Act
Twelvth Five Year Plan-Report of the Working Group on Womens Agency and
Empowerment, MINISTRY OF WOMEN AND CHILD DEVELOPMENT, GOVERNMENT OF

INDIA

Websites

www.jstor.org
www.heinonline.org
www.scholar.google.co.in
www.pwdva.nic.in
www.thehindu.com

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