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CRITICAL EYE ANALYSIS OF DOMETIC VIOLENCE ACT, 2005

(PROTECTION OF WOMEN AGAINST DOMESTIC VIOLENCE ACT)
The fading stains resurrect with vivid blatancy…
Your premeditated reminder of your incessantly biased truth
relentlessly trying to subdue and consume mine!

…And so it goes… the evidence remains.

- Jayne Dough

Domestic Violence can be described as when one adult in a relationship misuses power to
control another. It is the establishment of control and fear in a relationship through violence
and other forms of abuse. The violence may involve physical abuse, sexual assault and
threats. Sometimes it’s more subtle, like making someone feel worthless, not letting them
have any money, or not allowing them to leave the home. Social isolation and emotional
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abuse can have long-lasting effects as well as physical violence.

Domestic Violence isn't just hitting, or fighting, or an occasional argument. It's an abuse of
power. The abuser tortures and controls the victim by calculated threats, intimidation, and
physical violence. Although both men and women can be abused, in most cases, the victims
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are women. Children in homes where there is domestic violence are also abused or
neglected. Although the woman is usually the primary target, violence is sometimes directed
toward children, and sometimes toward family members and friends.

It is one of the crimes against women which is linked to there is advantageous position in the
society. Domestic violence refers to violence against women especially in matrimonial homes.
Therefore domestic violence is recognized as the significant barriers of the empowerment of
women, with consequences of women’s health, their health health-seeking behaviour and
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their adoption of small family norm.

INTRODUCTION
Domestic violence, also known as domestic abuse, spousal abuse, or intimate partner
violence (IPV), can be broadly defined a pattern of abusive behaviours by one or both
partners in an intimate relationship such as marriage, dating, family, friends or cohabitation.
Domestic violence has many forms including physical aggression (hitting, kicking, biting,
shoving, restraining, throwing objects), or threats thereof; sexual abuse; emotional abuse;
controlling or domineering; intimidation; stalking; passive/covert abuse (e.g., neglect); and
economic deprivation. Domestic violence may or may not constitute a crime, depending on
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local statues, severity and duration of specific acts, and other variables.

"The rate of crime against women in Delhi is projected to increase faster than population
growth rate by 2010, according to figures released yesterday by the director of India's
National Crime Records Bureau, Sharda Prasad. Despite being the 'official hub' of scores of
campaigns aimed at eliminating abuse, increasing legal protection and reforming the criminal

1
Harrykissoon SD, Rickert VI, Wiemann CM (April 2002). "Prevalence and patterns of intimate
partner violence among adolescent mothers during the postpartum period". Arch Pediatr Adolesc Med
156 (4): 325–30. PMID 11929364
2
Robertson, Kirsten. Murachver, Tamar."Attitudes and Attributions Associated With Female and Male
Partner Violence." Journal of Applied Social Psychology v. 39 no.7 (July 2009) p. 481-512
3
Harihar Sahoo, Manas Ranjan Pradhan: “Domestic Violence in India: An Empirical Analysis”,
explored via www.google.co.in on 19/10/2009.
4
“Domestic Violence”, Wikipedia, the free encyclopedia, searched via
http://en.wikipedia.org/wiki/Domestic_violence on 19/10/2009.

Electronic copy available at: http://ssrn.com/abstract=1840628

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justice system, Delhi's rate of abuse against women continues to rise (Times of India, 24
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Feb.).

Prominent women rights activist, Indira Jaising said the criminal justice system does not
provide adequate remedies to the victims of domestic violence. Criminal courts are powerless
to grant women protection against being thrown out of their homes and are reluctant to
provide for the immediate needs of women and children during trial. Jaising said there is a
strong need for a new law that would ensure that the violence is stopped immediately and that
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women are protected while they await justice.

Through the medium of the present research paper the author visions to analyse the position
of domestic violence in the Indian constituency, critically analyse the Domestic Violence Act
and the various legislations attached, scrutinize the various bottlenecks attached and come
up with suggestions and findings.

FORMS OF DOMESTIC VIOLENCE

All forms of domestic abuse have one purpose: to gain and maintain total control over the
victim. Abusers use many tactics to exert power over their spouse or partner: dominance,
humiliation, isolation, threats, intimidation, denial and blame.

 Direct physical violence ranging from unwanted physical contact to rape and
murder. Indirect physical violence may include destruction of objects, striking or
throwing objects near the victim, or harm to pets.

 Mental or emotional abuse including verbal threats of physical violence to the

victim, the self, or others including children, and verbal violence including threats,
insults, put-downs, and attacks.

 Nonverbal threats may include gestures, facial expressions, and body postures.

 Psychological abuse may also involve economic and/or social control such as
controlling the victim's money and other economic resources, preventing the victim
from seeing friends and relatives, actively sabotaging the victim's social relationships,
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and isolating the victim from social contacts.

Physical violence
Physical violence is the intentional use of physical force with the potential for causing injury,
harm, disability, or death, for example, hitting, shoving, biting, restraint, kicking, or use of a
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weapon.

Sexual abuse
Sexual abuse is common in abusive relationships. The National Coalition against Domestic
Violence reports that between one-third and one-half of all battered women are raped by their
partners at least once during their relationship. Any situation in which force is used to obtain
participation in unwanted, unsafe, or degrading sexual activity constitutes sexual abuse.
Forced sex, even by a spouse or intimate partner with whom consensual sex has occurred, is
an act of aggression and violence. Furthermore, women whose partners abuse them
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physically and sexually are at a higher risk of being seriously injured or killed.

5
“India: Domestic Violence Rates Rising - Statistical Data Included - Brief Article”, UN Foundation,
searched via http://www.unfoundation.org on 19/10/2009.
6
Times of India, 24 Feb, 2009.
7
“Domestic Violence and Abuse: Warning Signs and Symptoms of Abusive Relationships”,
http://en.wikipedia.org/wiki/Domestic_violence, updated on Sept. 6, 2009, searched on 19/10/2009.
8
“The Physical and Psychological Effect of Domestic Violence”,
http://en.wikipedia.org/wiki/Domestic_violence, updated on Sept. 6, 2009, searched on 19/10/2009.
9
Watts C, Zimmerman C (April 2002). "Violence against women: global scope and magnitude".
Lancet 359 (9313): 1232–7. doi:10.1016/S0140-6736(02)08221-1.

Electronic copy available at: http://ssrn.com/abstract=1840628

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Emotional abuse
Emotional abuse (also called psychological abuse or mental abuse) can include humiliating
the victim privately or publicly, controlling what the victim can and cannot do, withholding
information from the victim, deliberately doing something to make the victim feel diminished or
embarrassed, isolating the victim from friends and family, implicitly blackmailing the victim by
harming others when the victim expresses independence or happiness, or denying the victim
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access to money or other basic resources and necessities.

People who are being emotionally abused often feel as if they do not own themselves; rather,
they may feel that their significant other has nearly total control over them. Women or men
undergoing emotional abuse often suffer from depression, which puts them at increased risk
for suicide, eating disorders, and drug and alcohol abuse.

Economic abuse
Economic abuse is when the abuser has complete control over the victim's money and other
economic resources. Usually, this involves putting the victim on a strict "allowance",
withholding money at will and forcing the victim to beg for the money until the abuser gives
them some money. It is common for the victim to receive less money as the abuse continues.
This also includes (but is not limited to) preventing the victim from finishing education or
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obtaining employment, or intentionally squandering or misusing communal resources.

Stalking
Stalking is often considered a type of psychological intimidation that causes a victim to feel a
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high level of fear.

LAWS AGAINST DOMESTIC VIOLENCE

Protection for Women against Domestic Violence Act (PWDVA)

For long, the fairer sex has suffered at the hands of men, the exploitation ranges from
physical to intangible abuse like mental and psychological torture. Women have been treated
as child bearing machines, push-over, to nothing but animals at the hands of men. Domestic
violence is one of the gravest and the most pervasive human rights violation. For too long
now, women have accepted it as their destiny or have just acquiescence their right to raise
their voice, perhaps, because of the justice system or the lack of it or because they are
vulnerable, scared of being ostracized by their own because domestic violence still remains a
taboo for most women who suffer from it or for other reasons best known to them.

Domestic Violence Act, 2005, hereinafter referred at Protection for Women against Domestic
Violence (PWDVA), has been passed with a view to improve the position of women in the
domestic front. The Protection of Women from Domestic Violence Act 2005 (DVA) came
into force 26.10.2006. It is widely expected that DVA will go a long way to provide relief to
women from domestic violence and enforce their ‘right to live’. Primarily DVA is meant to
provide protection to the wife or female live-in partner from violence at the hands of husband
or male live-in partner or relatives. DVA also extends its protection to women who are sisters,
widows or mothers

The Act is an extremely progressive one not only because it recognizes women who are in a
live in relationship but also extends protection to other women in the household, including
sisters and mothers thus the Act includes relations of consanguinity, marriage, or through
relationships in the nature of marriage, adoption, or joint family thus, 'domestic relationships'

10
Waits, Kathleen (1984-1985). "The Criminal Justice System's Response to Battering: Understanding
the Problem, Forging the Solutions". Washington Law Review 60: 267–330.
11
Tjaden & Thoennes, 2000
12
Wallace, Harvey (2004). Family Violence: Legal, Medical, and Social Perspectives. Allyn & Bacon.
pp. 2. ISBN 0205418228.
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are not restricted to the marital context alone. In fact the Act has given a new dimension to
the word abuse because unlike the primitive notion abuse includes actual abuse or threat of
abuse, whether physical, sexual, verbal, economic and harassment by way of dowry
demands.

Main features of the Act and Changes Brought in by the Act14

The new act contains five chapters and 37 sections. Main Features of the Act are as follows:

 The definition of an 'aggrieved' person' is equally wide and covers not just the wife but
a woman who is the sexual partner of the male irrespective of whether she is his legal
wife or not. The daughter, mother, sister, child (male or female), widowed relative, in
fact, any woman residing in the household who is related in some way to the
respondent, is also covered by the Act

 The respondent under the definition given in the Act is "any male, adult person who
is, or has been, in a domestic relationship with the aggrieved person" but so that his
mother, sister and other relatives do not go scot free, the case can also be filed
against relatives of the husband or male partner [Chapter. I, - Sec.2(a)].

 The information regarding an act or acts of domestic violence does not necessarily
have to be lodged by the aggrieved party but by "any person who has reason to
believe that" such an act has been or is being committed. Which means that
neighbours, social workers, relatives etc. can all take initiative on behalf of the victim.
[ Chapter III - Sec. 4.]

 This fear of being driven out of the house effectively silenced many women and made
them silent sufferers. The court, by this new Act, can now order that she not only
reside in the same house but that a part of the house can even be allotted to her for
her personal use even if she has no legal claim or share in the property. [Chapter IV ?
Sec. 17]

 S.18 of the same chapter allows the magistrate to protect the woman from acts of
violence or even "acts that are likely to take place" in the future and can prohibit the
respondent from dispossessing the aggrieved person or in any other manner
disturbing her possessions, entering the aggrieved person's place of work or, if the
aggrieved person is a child, the school.

 The respondent can also be restrained from attempting to communicate in any form,
whatsoever, with the aggrieved person, including personal, oral, written, electronic or
telephonic contact" . The respondent can even be prohibited from entering the
room/area/house that is allotted to her by the court.

 The Act allows magistrates to impose monetary relief and monthly payments of
maintenance. The respondent can also be made to meet the expenses incurred and
losses suffered by the aggrieved person and any child of the aggrieved person as a
result of domestic violence and can also cover loss of earnings, medical expenses,
loss or damage to property and can also cover the maintenance of the victim and her
children.

 Sec.22 allows the magistrate to make the respondent pay compensation and
damages for injuries including mental torture and emotional distress caused by acts
of domestic violence.

13
Aparna Das, “Domestic Violence Act, 2005-A Bane Or A Boon?”, Legal Services India.com.
14
Bharat Budholia, “The Protection Of Women From Domestic Violence Act, 2005 : Dawn Of A New
Era”, Legal Services India.com.
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 Sec.31 gives a penalty up to one year imprisonment and/or a fine up to Rs. 20,000/-
for and offence. The offence is also considered cognisable and non-bailable.

 Sec. 32 (2) goes even further and says that "under the sole testimony of the
aggrieved person, the court may conclude that an offence has been committed by the
accused"

 The Act also ensures speedy justice as the court has to start proceedings and have
the first hearing within 3 days of the complaint being filed in court and every case
must be disposed of within a period of sixty days of the first hearing.

 It makes provisions for the state to provide for Protection Officers and the whole
machinery by which to implement the Act.

 The act enuciates the certain duties of central and state government to make wide
publicity & training programs for the police officers.

 The Act also provides for the assistance of welfare experts if found necessary by the
Magistrate.

 The Act also provides for the penalty for not discharging duty of Protection Officer.

Loopholes in the Present System

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Un-clarified responsibility and un-sufficient official resource
According to the Domestic Violence Act, Protection Officer has the duty to make domestic
incident reports (DIR) in prescribed form and make application to Magistrate. Also, service
providers have the power to record the DIR if the aggrieved person desires so. In practice,
after two years of implementation, duty of each role still seems ambiguous. In the consultation
on Domestic Violence Act and Reproductive Rights (29th-30th Nov.2008), advocators around
India expressed their worry about the un-specialized of Protection Officers.
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Lack of Training of Police Officers and Magistrates
Numerous advocates pointed to the lack of training of police officers and magistrates
regarding the Act’s requirements and its purpose, as well as a lack of sensitivity training
towards the issue of domestic violence, an old evil but newly recognized concept in Indian
society. This lack of training has led to the re-victimization of women within the justice system,
either through police non-response to calls for help, sending women back home to their
abusers by branding their victimization as mere domestic disputes, or magistrates allowing for
numerous continuances of cases, prolonging the court process and forcing victims to come to
court to face their trauma time and again.
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Dual system: Family Court and Criminal Court
There are mainly two legal approaches for women who had suffered domestic violence,
one is filing for divorce through Family Court, and the other is filing application to Magistrate
according to DV Act which might go through Criminal Legal System. The dual system
sometimes makes the legal proceeding more complex even tedious for them. Also, the social
impression of each approach put some stress on them.

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Misled as a one-way affair

15
Pin-Hsien Wu, Reviewing the Implementation of Domestic Violence Act, Report based on
interviews of women who had suffered from domestic violence, 2009/3/11
16
Rakhi Lahiri, “The Protection of Women From Domestic Violence Act: The Current Situation”,
HRLN, 2009
17
Pin-Hsien Wu, Reviewing the Implementation of Domestic Violence Act, Report based on
interviews of women who had suffered from domestic violence, 2009/3/11
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The act is deeply controversial due its insistence that firstly, the person who commits
domestic violence is always a male, and secondly, that on being accused, the onus is on the
man to prove his innocence. Therefore there are a lot of chances of the act being misused by
unscrupulous women.
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Overweening Ambition and lack of Proportion
In attempting to anticipate all possible ways to protect all aggrieved women from any sort of
harm, the framers of the law have put their faith in all women being essentially honest victims,
without worrying about proof of claims. In the process we are likely to see this law make a
mockery of itself.
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Disparities in Implementation
There are major disparities in implementation of the law in various states. For instance, while
Maharashtra appointed 3,687 protection officers, Assam had only 27 on its rolls, and Gujarat
25. Andhra Pradesh had an allocation of Rs 100 million for implementation of the PWDVA,
while other states like Orissa lagged far behind. Not surprisingly, states that invested in
implementation of the Act in terms of funds and personnel also reported the highest number
of cases filed. Maharashtra filed 2,751 cases between July 2007 and August 2008 while
Orissa could only manage 64 cases between October 2006 and August 2008.
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Public Opposition
The report highlights the problem of public opposition. Many have labelled the PWDVA
(Protection of Women from Domestic Violence Act) as a law that propagates inequality. There
are, at the moment, five petitions challenging the PWDVA in various high courts which argue
that the Act violates the constitutional right to equality as it provides relief only to women. Till
date, a judgment has been delivered only in one case (Aruna Pramod Shah vs Union of India)
by the Delhi High Court.
22
Fading Attempts of NGOs as Service Providers
Very few NGO’s have registered themselves as service providers under the Act, the
registered service providers as well as protection officers’ lack experience with domestic
violence work, too few protection officers are assigned in each district to handle the caseload,
and government service providers provide poor services to those in need.
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Failure to Mandate Criminal Penalties
Advocates and protection officers have noted additional inadequacies of the PWDVA,
including the Act’s failure to mandate criminal penalties for abuse along with its civil
measures, its failure to explicitly provide a maximum duration of appellate hearings which
delays women’s grant of relief, the residency orders’ failure to give women substantive
property rights to the shared household (only giving them the right to reside there), and a
basic lack of infrastructure linking law enforcement officials, officials under the act, and
service providers together in order to best and most efficiently serve domestic violence
victims.
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Shaking Responsibilities
The act has by and large affected those who have access to quality legal aid. Though the Act
provides for state legal aid, the quality of services in such cases is really poor. The state has

18
Pin-Hsien Wu, Reviewing the Implementation of Domestic Violence Act, Report based on
interviews of women who had suffered from domestic violence, 2009/3/11.
19
“A new net, but full of loopholes”, Madhu Purnima Kishwar, Tehelka, December 9, 2006.
20
“Report on India's domestic violence law highlights major loopholes”,
http://www.lawyerscollective.org/wri/publications/stayingalive
21
“Report on India's domestic violence law highlights major loopholes”,
http://www.lawyerscollective.org/wri/publications/stayingalive
22
Rakhi Lahiri, “The Protection of Women From Domestic Violence Act: The Current Situation”,
HRLN, 2009
23
Rakhi Lahiri, “The Protection of Women From Domestic Violence Act: The Current Situation”,
HRLN, 2009
24
Anasuya Basu, The Telegraph, Chandigarh, July 12, 2009.
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passed on all responsibility to the service providers. They have to provide medical aid to
abused women, arrange for short stay homes and arrange for compensation. It becomes a
burden on these providers who do not have the wherewithal.
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Lack of Follow Up
Needless to say, lack of follow up can endanger victims’ safety as well as allow for corruption
and inefficiency within the organizations intended to help them. In addition, a Times of India
July 19th, 2009 article reported the PWDVA’s lack of retroactivity, citing the Mumbai High
Court’s decision to set aside an order permitting an abused woman to reside in her husband’s
flat since his eviction attempt occurred prior to the PWDVA’s enactment in 2005.

Conclusion
The question raised in this article is how far the Domestic Violence Act, 2005 has succeeded
in fulfilling the requirements of adequately defining all forms of domestic violence and
providing redressal and protection to its victims. The issue has been tackled on conceptual
and practical grounds, while the aforesaid enactment is an important first step in terms of the
concepts it introduces into the Indian legal system, the viability of its implementation may be
contested on certain grounds.

In terms of concepts, the aim of the legislation, in addressing the problem of domestic
violence visited on a woman by a man in a domestic relationship, has to a great extent been
served. It may be concluded from an overall study of the Domestic Violence Act, 2005, that
the range and detail in which various definitions and forms of relief have been drafted, show a
clear effort on the part of the legislators to provide adequate redressal and protection. It is
only in some cases that implementation has not been adequately provided for example, in the
system whereby a breach in a protection orders is addressed. More specifically the case of
protection officers is an instance where the act might have considered using existing
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administrative machinery instead of created the necessity for further expenditure.

The enactment of Domestic Violence Act, 2005 is an answer to violation of women’s human
rights as well as their person which may be criminally prosecuted. Though this legislation has
been thoroughly prepared, lacunas will always be there leading to accused circumventing the
law. But while such circumvention takes place, it becomes the duty of the judge to interpret
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the provision on the lines of the objective that ‘violence within the home is not acceptable’.

Whether or not the act will be mis-used or not only time will tell for there cannot be any
perceptible change in women's status overnight. It will take at least a decade before things
change. This bill will provide them a safeguard and a sort of sword in their hand so that they
will not be seen as an animal, or a shoe that you can wear anytime and throw anytime but at
least some women would benefit which would set a precedent for others.

One precondition of improving the implementation of the DV Act is to increase women’s

awareness of it. Also, effective trainings for each role of departments involved in the
implementation of the Act are necessarily. To complete the system, there should be sufficient
budget invested with well superintendence.

In social-cultural level, to bring the idea of gender equality to public is one tough mission of
the government. The process of socialization is obscure however the effects are obvious.
Only in a more gender-equal society, women who have suffered violence could get rid of
shame/self-blame and such happenings could be de-stigmatized. Family, school, peer
groups, and media are all agencies of socialization, which all together should join the cultural
revolution and mental revolution to construct India a more female-friendly society. Domestic

25
Rakhi Lahiri, “The Protection of Women From Domestic Violence Act: The Current Situation”,
HRLN, 2009
26
Chitwan Prabhakar, “HUMAN RIGHTS- PROTECTION OF WOMEN FROM DOMESTIC
VIOLENCE ACT, 2005”.
27
Chitwan Prabhakar, “HUMAN RIGHTS- PROTECTION OF WOMEN FROM DOMESTIC
VIOLENCE ACT, 2005”.
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violence concerns so many elements. Low rates of participation in education, lack of

economic independence, value biases operating against them, etc, directly and indirectly
resulted in the women been given the status of being the secondary gender in India society.
Wife abusing is a common phenomenon worldwide irrespective of class, religion and region
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for centuries. Women in India still have a long way to go in making the ideology of gender-
equal into reality. They have to recognize the violence in the structure first, and then stand out
for combat.

28
Pin-Hsien Wu, Reviewing the Implementation of Domestic Violence Act, Report based on
interviews of women who had suffered from domestic violence, 2009/3/11.