ENACTMENT OF THE PROTECTION OF WOMEN FROM DOMESTIC
VIOLENCE ACT, 2005
(An Assignment towards the completion of Continuous Assessment in Legal Language & Art
of Advocacy)
SUBMITTED BY: SUBMITTED TO:
RIDDHIMAN CHANDRA DR. RASHMI MATHUR
AGARWAL ASSISTANT PROFESSOR,
ROLL NO.: 2290 NATIONAL LAW UNIVERSITY,
B.A., LL.B. (HONS.) SEMESTER JODHPUR.
2
SECTION B
NATIONAL LAW UNIVERSITY, JODHPUR
WINTER SEMESTER (JANUARY – MAY 2024)
1. INTRODUCTION
“तेजोमण्डिता उज्ज्वला भवाम्यहं शक्तिः शिवालिका।“ (tejomaṇḍitā ujjvalā
bhavāmyahaṃ śaktiḥ śivālikā।) Adorned with lustre and brilliance, I become Shakti (divine
feminine)
“यत्र नार्यस्तु पूज्यन्ते रमन्ते तत्र देवताः।
यत्रैतास्तु न पूज्यन्ते सर्वास्तत्राफला क्रिया:॥“ (yatra nāryastu pūjyante
ramante tatra devatāḥ।
yatraitāstu na pūjyante sarvāstatrāphalā: kriyā:॥) Where women are honoured, divinity
blossoms there. And where they are dishonoured, all actions remain unfruitful. (Manusmriti
3.56)
The Indian sacred and ancient literature is replete with injunctions extolling divinity of
women and their exalted social position, (as is evident from the above two quotes.) With the
advent of the barbaric foreign invaders, the social position of women declined and reached its
lowest pedestal due to the environment being rendered unimaginably unsafe for women. The
corruption of morals of the Indian society is apparent in atrocities against women and the
solidification of social evils like sati, female infanticide and child marriage as religiously
sanctioned practices, although they emerged as panic reactions to safeguard women’s dignity
during troubled times.
“Crimes against women” have been defined to be crimes specifically directed against in order
to inflict mental or physical cruelty. The victims of such crimes are necessarily women. 1
Misbehaviour or any form of physical aggressiveness is referred to as violence, sometimes
called abuse. Domestic violence is defined as violence committed against family members,
including parents, spouses, children, and servants. Various techniques, including biting,
shoving, kicking, striking, restraining, and hurling things, can be used in domestic violence.
Broadly speaking, it involves intimidation, emotional and sexual assault, being in charge or
overbearing, threats, scheming, covertly abusive behaviour, economic hardship, rape,
kidnapping, abduction, murder (all instances of criminal violence), beating of a wife, sexual
abuse, mistreatment of an old woman, widow, and dowry death (all instances of domestic
violence)
1
AWADHESH KUMAR SINGH & JAYANTA CHOUDHURY, VIOLENCE AGAINST WOMEN AND CHILDREN -ISSUES AND
CONCERNS 1-2 (Serials Publications, New Delhi) 2012.
concerns that impact a significant portion of society, such as eve-teasing, pressuring a young
widow to perform sati, pressuring a wife or daughter-in-law to commit foeticide, etc.2
In their 1993 Declaration on the Elimination of Violence Against Women3, the United Nations
defined “Violence against Women.” According to its definition, it is any act of gender-based
violence that causes, or is likely to cause, suffering or physical, sexual, or mental injury to
women, including coercion, threats of such behaviour, or willful restriction of liberty, whether
in public or private.4
The Constitution of India gives the right to equality to both men and women 5 and also gives
the right to non-discrimination on grounds of gender 6, while allowing the State to take special
affirmative action for the welfare of women and children.7
The social evil of domestic violence against women has been a consistent phenomenon,
which also signifies the corruption of morals of a people who used to regard women sacred,
to her sheer objectification. Domestic violence against women primarily occurs on account of
dowry related harassment or harassment of wives for money by alcoholic husbands.
Prior to the enactment of the Protection of Women from Domestic Violence Act, 2015 8
(hereafter “PWDVA”), dowry related harassment was criminalised by the insertion of Section
498A in the Indian Penal Code, 18609, (through the Criminal Law (Amendment) Act, 198310.)
It criminalised “cruelty” by a husband or his relatives, against the wife, a cognisable and non-
bailable offence punishable by up to 3 years of imprisonment.
With its roots in feminist movements of the 1970s, specifically focusing on violence related
to dowries, the Protection of Women from Domestic Violence Act (PWDVA) originated from
a ten-year fight against domestic abuse in India. Early legislative improvements were not
enough to address the problems that remained: fire deaths were frequently written off as
accidents, and Section 498A and other legal provisions were difficult to interpret and had
high evidentiary requirements. Inadvertently, the 1986 adoption of Section 304B 11 restricted
2
Id. at 2,3.
3
DECLARATION ON THE ELIMINATION OF VIOLENCE AGAINST WOMEN : UNITED NATIONS DIGITAL LIBRARY,
[Link] (last visited Apr 15, 2024)
4
VIOLENCE AGAINST WOMEN IN INDIA, GURUAPPA NAIDU 23 (Serials Publications, New Delhi) 2011.
5
INDIA CONST. art 14
6
INDIA CONST. art 15(1)
7
INDIA CONST. art 15(3)
8
The Protection of Women from Domestic Violence Act, 2005, No. 43, Acts of Parliament, 2005 (India).
9
Indian Penal Code,1860, § 498A, No. 45, Acts of Parliament, 1860 (India).
10
Criminal Law (Amendment) Act, 1983, No. 46, Acts of Parliament, 1983 (India).
11
Indian Penal Code,1860, § 304B, No. 45, Acts of Parliament, 1860 (India).
the focus on dowry-related violence, ignoring other forms of abuse and leaving gaps in legal
protection, particularly for unmarried women, the elderly, and children.
Although the PWDVA was designed to protect women from domestic abuse, its effectiveness
was constrained by its narrow scope and vague definitions. While leaving out other
vulnerable groups and neglecting to address abuse in non-marital relationships, Section 498A
largely protected married women. In order to ensure the safety and well-being of all women,
regardless of their marital status or the type of violence they experience, more comprehensive
legal reforms and societal interventions are required. The law's emphasis on dowry-related
violence further obscured the wider spectrum of abuse faced by women in domestic
settings.12
Although harmful practices against women were acknowledged by the existing legal
frameworks, the primary focus of criminal law was on prevention and deterrent, which
resulted in inadequate attention to the immediate needs of victims of domestic abuse.
Although there were civil law remedies, they were frequently unsatisfactory and delayed,
putting women at risk of being evicted and losing their property. Consequently, it was
decided that a comprehensive legal strategy combining civil and criminal components was
required to effectively enforce court orders, provide immediate support, and stop abusers.
This seemed necessary to close the gap between temporary relief and long-term protection for
women who were victims of domestic abuse.
The National Commission for Women (NCW) asked the Lawyers Collective Trust (LC) to
formulate a draft law on domestic violence in 1993, which was presented in 1994. But it
seemed that before legislative activity, there was a need to establish a consensus in the legal
fraternity for a law against domestic violence, which continued in the want of any effective
legal remedies. A national level colloquium called “Empowerment through Law” comprising
advocates, academics, activists, judges etc. vociferously started campaigning for a law
against domestic violence.
The draft bill proposed by Lawyers Collective aimed at the prevention of domestic violence
and the protection of women from domestic violence. It incorporated provisions like a broad
definition for domestic violence, it safeguarded women in all ‘domestic relationships’ and not
only marital relationships from domestic violence and gave right to residence to women in
12
Indira Jaising, Bringing Rights Home: Review of the Campaign for a Law on Domestic Violence, 44 EPW 44
50-57 < [Link] accessed 15 April 2024
shared households. It also had the provision for protection officers for women and also
provided for various civil remedies in the form of orders from the court.13
A draft proposal for a domestic violence law was developed between 1998 and 2001 as a
result of significant discussion within the women's movement and dialogues with various
organisations and legal experts. These consultations led to changes that addressed concerns
and clarified sections. Discussions focused on issues of gender specificity of the law, their
inclusion as respondents and the representation of children. The final goal of the amendments
was to emphasise the difficulties in handling domestic abuse while taking gender dynamics
and the effectiveness of the law into account. They also aimed to protect against potential
misuse, maintain compatibility with current legislation, and strike a balance between
protective measures.
“Each time a woman stands up for herself, without knowing it possibly, without claiming it,
she stands up for all women.” (Maya Angelou)
2. THE LEGISLATIVE PROCESS
The National Democratic Alliance government's Protection from Domestic Violence Bill,
2001 did not meet the demands of the women's movement; it did not include provisions for
instant relief, a statement of rights for the victim, or a precise description of domestic
violence. Its emphasis on compulsory counselling for abuse victims and perpetrators was
criticised for potentially prolonging abuse, and it left women vulnerable by not recognising
their to residence in the shared household. Overall, the bill’s ambiguous wording and
restrictive application impeded legal recourse and emphasised the necessity of complete legal
safeguards that are in line with the safety and rights of women.
To address the criticism of the Bill, the Parliamentary Standing Committee on Human
Resource Development was tasked with reviewing it. The committee received inputs from a
variety of sources between May and December 2002, including statements from LC and
women's organisations pointing out the bill's shortcomings and arguing for more robust
protections. The committee’s report14, which was published in December 2002, addressed
13
Id.
14
121ST REPORT OF DEPARTMENT-RELATED PARLIAMENTARY STANDING COMMITTEE ON HUMAN RESOURCE
DEVELOPMENT (DIGITAL SANSAD),
<[Link]
source=rajyasabha> (last visited Apr 15, 2024)
issues such as women's participation in non-marital relationships and did away with
responders' ability to claim self-defence. Overall, the report was in line with LC's
recommendations. The bill lapsed in February 2004 when the Lok Sabha was dissolved,
despite attempts to advance reforms based on the committee's recommendations failing to
make significant headway in the next two years.
The topic of domestic abuse gained political significance when the United Progressive
Alliance (UPA) government came to power in May 2004 and incorporated a civil law on the
subject in their Common Minimum Programme. The final draft of the bill changed along its
journey through government ministries from July 2004 to June 2005, despite significant
discussions. Regretfully, crucial components like the definition of the “applicant” were
foregone, creating doubts about the processes, and the inclusion of joint counselling rules
sparked worries about possible coercion in the reconciliation processes. However, the bill
was unanimously approved by both chambers of Parliament in August 2005 and became a
law after Presidential assent on 13 September 2005 15, despite objections from some
lawmakers about the inclusion of "relationships in the nature of marriage" under the protected
categories of women.
The definition of domestic violence given in Section 3 includes harm or injury to life and
safety, limb or well-being, both physical and mental which may cause physical, sexual, verbal
and emotional, and economic abuse.16 Domestic violence is also inclusive of coercion for
unlawful transfer of dowry or other property. 17 This expansive definition can also include
instances of “marital rape” under “sexual abuse,” and is not made exhaustive and can be
interpreted according to the facts and circumstances of the case.
Another novel aspect is the expansion of the understanding of “domestic relationship”, which
is not limited to marital relations or relations of blood or adoption alone.
The Act simplifies the complaint filing procedure, creates a cadre of protection officers who
can assist the victim in the completion of the suit. The victim is also allowed to request
medical facilities18, shelter homes19. The Act also empowers the victim to seek various reliefs
15
ENGLISH RELEASES PRESS INFORMATION BUREAU, <[Link]
relid=11687#:~:text=President%20for%20assent.,The%20Protection%20of%20Women%20from%20Domestic
%20Violence%20Bill%2C%202005%20was,Sabha%20today%20and%20was%20passed. >(last visited Apr 15,
2024)
16
Supra note 8, § 3.
17
Id.
18
Supra note 8, § 6.
19
Supra note 8, § 7.
from the magistrate mentioned in the Act. 20 The act also provides for the issuance of orders
for protection from domestic violence,21 residence in shared household22 and monetary
compensation for the abuse suffered.23
Thus, the Act takes a praiseworthy initiative of enlisting State action for providing succour to
private injuries as a matter of societal concern.
3. “RESURGENCE”: THE POST ENACTMENT IMBROGLIOS
The enactment of the PWDVA although a revolutionary step in the direction of securing
women’s rights, has been the subject of its share of controversies. They have been divided
into two sub-sections:
I. ISSUES IN IMPLEMENTATION
The interpretation by the courts, of various provisions have seemed contrary to the
legislative intent behind the enactment of the Act. 24 The Supreme Court held in the
case of SR Batra v. Taruna Batra that the right of residence 25 of women in the shared
household26 shall not extend to self-acquired properties of the in-laws, and such right
shall only be limited to joint family properties in which the aggrieved’s husband is
subject to holding a share. 27 Such a ruling, although evidences judicial intent for
checks and balances in implementing the act but can prove to be unjust in cases of
grave abuse against the victims.
In another case of D Veluswamy v D Patchaimal, the court has interpreted that not
every live-in relationship shall qualify as “relationships in the nature of marriage” and
laid a fourfold test for classification within the same. The couple must hold
themselves out to the society akin to spouses, should be of the legal age to marry and
be otherwise qualified to enter into a legal marriage, and should have voluntarily
cohabited and imparted the impression of being spouses to the world. 28 This test
imposes a considerably high onus probandi on the victim to proceed under the Act.
20
Supra note 8, § 12(1).
21
Supra note 8, § 18.
22
Supra note 8, § 19.
23
Supra note 8, § 20.
24
Pooja Badarinath, The Challenge of Subjectivity within Courts: Interpreting the Domestic Violence Act, 46
EPW 15-18 <[Link]
25
Supra note 8, § 17.
26
Supra note 8, § 2(s).
27
S R Batra vs Taruna Batra; (2007) I DMC (SC) at para 22.
28
D Veluswamy vs D Patchaimal, Criminal Appeal No 2028-29 of 2010 [Arising out of Special Leave Petition
(Cri) Nos 2273-74/2010].
The Act contains provisions for the requisitioning of medical facilities and shelter
homes by the victims. Other schemes for the prevention of domestic violence include
the appointment of Protection Officers, notification of service providers, training and
capacity building of the police, judiciary, and widespread sensitisation. Research data
shows that the state governments have designated the existing shelter houses under
the Swadhar scheme and Nari Niketan. These homes are already overburdened
beyond their capacities and the result of their designation is that there is an acute
district wise shortage of such houses.29
The honorarium provided to service providers like medical practitioners and legal
advisors is too abysmal for their sustenance, serving to discourage people from
enlisting themselves under these avenues.30
II. INSTANCES OF RECIPROCAL DISCRIMINATION
The PWDVA has been drafted to specifically include crimes of domestic violence only
against women and it does not account for the eventualities of perpetration of domestic
violence against males of the household. A gender binary of “resting on the essentialised
notions of male aggressiveness and female submissiveness”31 is furthered by this act.
The Law Commission of India in its 243 rd report noted the high number of complaints of
misuse of the law32, which has also been recognised by the judiciary in individual cases, but a
conclusion could not be reached in the absence of ground-level studies to gather the extent of
such misuse.
Instances of combined harassment by the husband and wife of elderly male relatives of the
family have gone unpunished and those of false and undue implication of the husband’s
family in false or frivolous cases of rifts and feuds, have caused ignominious social
humiliations and hardships due to undue incarcerations of innocent people.
The courts in various cases33 have issued guidelines to provide for preliminary investigations
to eliminate the possibility of harassment of innocents, and thus curb the misuse of the law.
29
Bhumika Jhamb, The Missing Link in the Domestic Violence Act, 46 EPW
45-<[Link] accessed 15 April, 2024.
30
Id.
31
Mikkola Mari, ‘Feminist Perspectives on Sex and Gender’, The Stanford Encyclopedia of Philosophy
(Edward N Zalta ed, Fall 2019 Edition) <https: //[Link]/archives/fall2019/entries/feminism-gender/>
accessed 15 April, 2024.
32
Law Commission of India, s 498A IPC, Report No 243, 3 ¶ 1.3 (August 2012).
33
Preeti Gupta v. State of Jharkhand, (2010) 7 SCC 667; Chander Bhan v. State, (2008) 151 DLT 691.
PWDVA has therefore been an impediment to gender neutrality in sexual and domestic
violence laws in the above-mentioned respects.34
4. CONCLUSION
The PWDVA was a revolutionary development in its time and has served to considerably
lower the instances of domestic violence against women. But, its scope being restricted to
women only, gives rise to a travesty of males and transgender people within families having
no remedy for being victimised of domestic violence. The concern of misuse of a gender-
neutral law by domineering males can be addressed by the implementation of stringent
investigative practices and prosecution procedures.
Moreover, the rehabilitative provisions of the Act need to be backed up with robust and
routine allocation of funds in order to lend teeth to them.
Another significant aspect about the law is that it checkmates the clamour for the inclusion of
marital rape within the definition of “rape” in the criminal law, since, the Act already includes
sexual abuse within the ambit of the definition of domestic violence.
34
Anupama Sharma, Addressing the Roadblocks to Gender Neutrality in Sexual and Domestic Violence Laws :
A South Asian Perspective, 11.2 JILS (2020) 79
