Table of Contents

CERTIFICATE…………………………...………………………………………...…………ii
ACKNOWLEDGEMENT…………………...………………………………….……………iii
LIST OF CASES……………………………………………………………………………...iv
LIST OF ABBREVIATIONS……………………………………………………………v
ABSTRACT…………………………………...……………………………………..……….vi

1. INTRODUCTION ................................................................................................................. 2
1.1. What is Violence? ............................................................................................................... 2
1.2. Types Of Domestic Violence ............................................................................................. 4
1.3. Brief Outline ...................................................................................................................... 5
1.4. Objective Of The Study ..................................................................................................... 5
1.5. Research Methodology ...................................................................................................... 5
1.6. Scope And Limitation Of Study ........................................................................................ 5
1.7. Hypothesis .......................................................................................................................... 6
1.8. Literature Review ............................................................................................................... 6
1.9. Scheme Of Work ................................................................................................................. 3
2. PROTECTION FOR WOMEN AGAINST DOMESTIC VIOLENCE ACT (PWDVA) ..... 8
2.1. Status Of The Domestic Violence - Nationwide Scenario.................................................. 8
2.2. Number of Protection officer .............................................................................................. 9
2.4. Gender of Protection officers ............................................................................................ 10
2.5. Educational Qualifications of the Protection Officers ...................................................... 12
2.6. Charge of Protection Officer (Independent/ Additional) .................................................. 12
2.7. Awareness about the ACT ................................................................................................ 12
2.8. Budget of the state for Domestic Violence ....................................................................... 13
2.9. Service Providers .............................................................................................................. 13
3. ROLE OF NON-GOVERNMENTAL ORGANIZATION IN PWDVA ............................ 15
3.1. NGOs are strong and effective agency ............................................................................. 16
3.2. NGO weaknesses/ bleak picture about NGOs .................................................................. 16
3.3 HUMAN RIGHTS LAW NETWORK, DELHI (HRLN) ................................................. 17
3.3.1. Establishment and organizational Goals of HRLN ........................................................ 17

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3.3.2. The Women’s Justice Initiative (WJI) ........................................................................... 18
3.3.3. WJI’s Issues of Concern include.................................................................................... 18
3.4 LAWYERS COLLECTIVE............................................................................................... 18
3.5. Role of NGOs And Other Agencies Under PWDVA, 2005 ............................................. 19
3.5.1. Powers of Service Providers .......................................................................................... 21
4. STATE-WISE HURDLES FACED IN IMPLEMENTATION OF PWDVA ..................... 22
4.1. ANDHRA PRADESH ...................................................................................................... 22
4.2. ASSAM ............................................................................................................................. 22
4.3. CHHATISGARH .............................................................................................................. 23
4.4. DELHI............................................................................................................................... 24
4.5. GOA .................................................................................................................................. 25
4.6. JHARKHAND .................................................................................................................. 25
4.7. KARNATAKA ................................................................................................................. 27
4.8. KERALA .......................................................................................................................... 27
4.9. MADHYA PRADESH ..................................................................................................... 28
4.10. MAHARASHTRA .......................................................................................................... 29
4.11. MANIPUR ...................................................................................................................... 29
4.12. NAGALAND .................................................................................................................. 30
4.13. RAJASTHAN ................................................................................................................. 30
4.14. WEST BENGAL ............................................................................................................ 31
4.15. Drawbacks in The Present Implementation System ....................................................... 31
5. JUDICIAL PRONOUNCEMENTS..................................................................................... 36
6. CONCLUSION AND SUGGESTED REMEDIES ............................................................. 43
BIBLIOGRAPHY .................................................................................................................... 52

List of Figures
Figure 1 .................................................................................................................................... 10
Figure 2 .................................................................................................................................... 11

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1. INTRODUCTION
In September 2005, the Indian Parliament passed The Protection of Women from Domestic
Violence Act (PWDVA), which came into force from October 26, 2006. The PWDVA was the
result of a long and concerted campaign against domestic violence by the women’s movement
in India. It was a landmark legislation as it in some measure vindicated the constitutional
promise of equality, non-discrimination and the right to life and liberty for women. It also
marked compliance by the Indian state with its international obligations, especially under the
Convention against Elimination of All forms of Discrimination Against Women (CEDAW).
The Act was a civil law that sought to provide emergency relief to women in the form of
protection orders, residence orders, and monetary relief and compensation orders. It also
provided for an inbuilt mechanism to facilitate the entire system of access to justice. It
identified specific functionaries such as the Protection Officers and Services Providers whose
primary duty was to assist women in accessing reliefs provided under the law.

1.1. What is Violence?

Violence against women is one of the most significant, yet little understood and acknowledged
factor instrumental in the phenomenon of marginalization of women in the development
processes. Gender violence manifests itself in various forms female foeticide and infanticide,
sexual abuse, incest, molestation, sexual harassment at work and on the streets, marital rape,
domestic violence in the form of wife assault and woman battering. In some places, there exist
culture-specific forms of violence against women like female genital mutilation in some
African countries and harassment/ murder /beating for dowry in India. Of all the forms of
violence that women face, domestic violence remains the least reported and largely suppressed.
For women, violence is a phenomenon which starts at conception and carries on through their
entire life span. In India, pre-birth selection and consequent infanticide is a common occurrence
and the preference for a male offspring widespread. Discrimination continues by way of access
to adequate food, prompt medical facilities, burden of household work, care of siblings and so
on leading to lack of education and consequent lack of awareness and empowerment and
imparting of skills. Adolescence brings with it the complete withdrawal of the little freedom of
mobility, fear of and occurrence of sexual assaults; both within and outside of the family.
Vulnerability is further compounded by early marriages and early child bearing and the
disastrous consequences of the same on the health of women. In India, specifically, child
marriages further accentuate the girl's vulnerability. The reproductive age is, for a lot of
women, punctuated with physical, mental and emotional abuse by their husbands. Millions of

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Indian women face severe harassment due to unfulfilled dowry demands and many are victims
of homicide and are even driven to suicide. All these foster a deep and inescapable sense of
dependency in women who are left with no alternative but to continue to live with and depend
on abusive partners for want of any other choice. Additionally, women constantly need to
negotiate their space and contend with abuse at the workplace too. An important aspect is that
a woman may experience violence either once in one of her life-cycle phases or be continually
exposed to multiple instances of violence at various points in time. It has, however been
established beyond doubt that domestic violence is probably one of the most endemic forms of
violence against women throughout the world.

There are certain rights guaranteed to women under article 14, 15 and 21 of Indian Constitution
based on which an act was introduced entitled “Protection of Women from Domestic Violence
Act, 2005”. According to this act Domestic violence means any act, omission or commission
or conduct of the respondent shall constitute violence if it, a) harms or injures or endangers the
healthy safety, life, limb or well-being, whether mental or physical of aggrieved person or tends
to do so and includes causing physical abuse, sexual abuse, verbal and emotional abuse and
economic abuse; or b) harasses, harms, injuries or endangers the aggrieve person with a view
to coerce her or any other person related to her to meet any unlawful demand for any dowry or
other property or valuable security; or c) has the effect of threatening the aggrieved person or
nay person related to her by any conduct mentioned in clause (a) or clause (b); or d) otherwise
injuries or causes harm, whether physical or mental, to be aggrieved person.

1.2. TYPES OF DOMESTIC VIOLENCE

Domestic violence has many forms, like physical aggression; sexual abuse; emotional abuse;
controlling; intimidation; stalking; passive/covert abuse and economic deprivation. All forms
of domestic abuse have one purpose that is to gain and maintain control over the victim.

• 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.

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 • 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,
and isolating the victim from social contacts

Education is a very important factor that determines development of any country. It seems to
play a major role in predicting the risk of domestic violence. A negative correlation was found
between magnitude of domestic violence and men and women having 10+ years of education1.
Another research found that wives with higher education status than their husbands were less
likely to experience severe domestic violence as compared to equally low educated wives.
Equally high educated couples were least likely to experience domestic violence 2 .
Socioeconomic status also impacts occurrence of domestic violence.

Marital adjustment is studied as a major factor responsible for domestic violence. Husbands
and wives who are less satisfied with their marriage seems to indulge more in domestic
violence. Poor marital adjustment is one of the most frequently examined associate of domestic
violence3. Stith and colleagues reviewed numerous relevant works and concluded a significant
negative relationship between domestic violence and marital adjustment. That means when
there are lower levels of marital adjustment, levels of domestic violence increases. Alcohol
addiction, poverty, son preference, dowry conflict and extra marital affair of husband with
other women are also found to play role in domestic violence.4

BRIEF OUTLINE
Domestic or Family violence is one of the leading causes of female injuries. It primarily effects
women and operates to diminish women’s autonomy and sense of self-worth. Presently,
domestic violence is concerned under Section 498 A of the Indian Penal Code, 1860. This
section eventually proved out to be insufficient. Thus, the impugned Act was enacted for
effective protection of the rights of the women guaranteed under the Constitution.

1
Kavitha, V. (2012). Spousal domestic violence of married women in India Journal of Sociology and Social
Anthropology, 3(1), 7-13.
2
Rapp, D., Zoch, B., Khan, M. M. H., Pollmann, T., & Krämer, A. (2012). Association between gap in spousal
education and domestic violence in India and Bangladesh. BMC public health, 12(1), 1.
3
Stith, S. M., Green, N. M., Smith, D. B., & Ward, D. B. (2008). Marital satisfaction and marital discord as risk
markers for intimate partner violence: A meta-analytic review. Journal of Family Violence, 23(3), 149-160.
4
Mitra, S. (2006). Domestic Violence along with its Socio-cultural Determinants Among Pregnant Women
Attending MCH Clinic of a Sub divisional Hospital in West Bengal. Indian Journal of Community Medicine,
31(4), 267-69.

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Section 3 of the Act defines Domestic violence. The definition covers all the aspects of
domestic violence & hence makes it almost impossible to find any flaw. According to this
section, any act, omission, commission or conduct of the respondent constitutes domestic
violence under this section. However, one of the safeguards provided in the Act is Explanation
II which states that in order to find out whether domestic violence is present or not, the overall
facts and circumstances of the case shall be taken into considerations.

OBJECTIVE OF THE STUDY

The broad aim of the proposed study is to investigate the causes and persons behind violence
against women and its consequences. Main objectives of this study may be summarized of
follows:

1. To know the causes of the domestic violence.

2.To find out the implementation of the PWDVA nationally as well as state wise.

3.To know the suggestion for minimizing the loopholes of the act.

RESEARCH METHODOLOGY
The topic of this project report is “PWDVA and its implementation in India” Basically my
project is based on “DOCTRINAL METHOD”. This project report contains most of the
important issues related to the topic. This project is fully based on research method. The source
materials of the project are secondary like books, and internet-based research because they
were easily available. Various NGO’s websites helped us a lot during the research as well as
some primary sources are used, and data has been collected telephonically by the researchers
from different state officials. The name of the book, the author, the publication, edition of the
book, the year and the page no. and uniform style has been used throughout. Research work
was a bit affected due to the paucity of time.

SCOPE AND LIMITATION OF STUDY

The scope of this study is to analyse the pattern of the PWDVA in various states and union
territories of India and its implementation. The key-links of the study are NGOs, state
ministries, State-wise Protection Officers. The study is limited to certain states as to availability
of data and co-operation of respective state ministries.

HYPOTHESIS
PWDVA in India was enacted in 2005, and reference of it has been taken from the American
Law, The Violence Against Women Act (VAWA), 1994. The American law is based

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according to their culture and societal awareness, whilst in India the case is quite different. It
is presumed that the present Indian act is insufficient and needs to be amended according to
Indian Society also that the implementation process by the States are not worth applauding.
The implementation process lacks.

LITERATURE REVIEW
Violence against women within the family is a global phenomenon. However its ramifications
are more complex and its intensity much greater in India. The most pathetic aspect of such
atrocities is domestic violence.

The steady decline in the sex ratio noted for over a century in India from 972 females for 1000
males in the population in 1901 to 927 females in 1991 and the prevalence of female foeticide
in at least 10 States of India are critical indicators of violence against women. Female foeticide
and female infanticide are basically sociocultural problems and not just a law and order
problem. UNICF reports that 40-50 million women are missing from the Indian population due
to foeticide (1991).

The National Family Health Survey, 2000 (NFHS-2) reports about the inequality and violence
pervading in our country. Sixty-eight percent of the women under the survey reported that they
needed permission from husbands or in-laws to go to the market and 76 percent had to seek
consent of their husbands before they could visit friends or relatives. Only 60 percent could use
money the way they wished. In addition, one in every five women experienced domestic
violence from the age of 15 onwards. Very often, women used to suffer violence against them
in silence for fear of adverse repercussions.

The National Crime Report of 1991 reveals that in every 33 minutes a woman is abused by her
husband. CSR (Centre for Social Research) has one and a half decades of experience in
providing direct services to women victims of violence and has established a National Network
on Violence against Women. CSR annually receives nearly 800 cases of domestic violence in
its six Crisis Intervention Centers (CICs) located in different parts of Delhi. CSR HQ is the
nodal agency for the Crisis Intervention Centre for Rape Victims of South West District of
Delhi. The strength of this centre is the prompt, speedy and sensitive action taken for fast
redressal of rape cases.

In this context, the present study attempts to examine the causes and extent of domestic
violence as well as its consequences in India.

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SCHEME OF WORK
This Project report is brief study of The Protection of Women from Domestic Violence Act
PWDVA), 2005 and its implementation in India. This report has been divided in six chapters.

1. INTRODUCTION - The first chapter introduces the topic and its history.
2. PROTECTION FOR WOMEN AGAINST DOMESTIC VIOLENCE ACT - The
second chapter put forward the nation-wide scenario of the act.
3. ROLE OF NON-GOVERNMENTAL ORGANIZATION IN PWDVA - It explains
the role of NGOs in Protection against Domestic Violence.
4. STATE-WISE HURDLES FACED IN IMPLEMENTATION OF PWDVA - This
chapter which entails the implementation process of the act in various states in
India and difficulties faced in implementation.
5. JUDICIAL PRONOUNCEMENTS - This chapter deals with various judicial
pronouncements have been discussed.
6. CONCLUSION AND SUGGESTED REMEDIES - At last in the sixth chapter the
researcher suggested remedies and concluded the project report.

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2. 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.

This act 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’
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. 5

2.1. STATUS OF THE DOMESTIC VIOLENCE - NATIONWIDE

SCENARIO

This act created the institution of the protection officer and the service providers. The
protection officer is to bear all the responsibilities of providing state protection to the victim of
domestic violence. The protection officer is the focal point as he or she is to receive the

5
Aparna Das, “Domestic Violence Act, 2005-A Bane Or A Boon?”, Legal Services India.com.

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complaints, investigate, pass on the order to police, if required, recommend the demanded or
claimed rights to the victim woman and rehabilitate her. He or she is also responsible for
nominating various agencies to act as service providers and coordinate various agencies to help
women victim of violence. The protection officer is to decide the procedure, refer the cases to
counsellors and resolve the issues by developing mutual trust between the families or family
members. The service providers are various non-governmental organizations to whom the
power of the protection officer can be delegated, and various other things related to protect and
save the victim of domestic violence. The protection officer is a governmental functionary
hence answerable.

The protection officer must provide the required support to the victim. For providing adequate
support the act mandated the involvement of social institutions and voluntary agencies. Thus,
the act mandated that society cannot alienate such women; it too must bear the burden of
rehabilitating the victim. The act has a unique characteristic as it introduced the concept of the
right of the victim as distinct from the right of the women. In no other legislation the rights of
women are specified and ensured. This act mandated that the magistrate can issue protection
orders, residence orders, custody orders monetary relief, compensation orders, restoration of
property orders.

2.2. Number of Protection officer

In each state Protection Officers, the mandatorily appointed under the act, for better functionary
of the act the PO are appointed in the states differently. Some state has district appointed PO
and few on block level. In the data collected from 19 states and 4 UT there are 2028 POs.
Maharashtra, Karnataka and Uttarakhand have appointed POs on block level who are
accountable to the District POs and few states have appointed district POs who are inadequate
in number. The POs should be appointed on block level so that violence affected women can
reach them for help.

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 Figure showing No. of Protection
officers and Districts in State
West Bengal 21
40
Uttarakhand 13
115
Uttar Pradesh 75
75
Rajasthan 33
589
Puducherry 4
4
Odisha 30
30
Nagaland 11
30
Mizoram 8
9
Meghalaya 11
11
Maharashtra 36
597
Lakshadweep 1
9
Karnataka 30
185
Jharkhand 24
204
Haryana 22
21
Gujarat 33
26
Goa 2
13
Delhi 11
18
Daman and Diu 2
4
Dadra and Nagar Haveli 1
1
Chhattisgarh 27
21
Arunachal Pradesh 21
20
Andaman and Nicobar Islands 3
6
0 100 200 300 400 500 600 700

Districts Protection officer

Figure 1

2.4. Gender of Protection officers

The Protection Officers shall as far as possible be women and shall possess such qualifications
and experience as may be prescribed. 6 For the comfort of women there should female
protection officer appointed, so that she does not hesitate in sharing her problem; usually

6
Sec 8 (2) PWDVA, 2005

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vulnerable women have tendency to be intimidated or a bit hesitant towards the opposite sex.
As mentioned above the number of POs appointed 2028 out which 723 are women and 1087
are men.7 Emphasizing the number of female POs is much less than the male POs. This is one
of the circumstances where it can be changed, and it would make the PWDVA’s
implementation much effective. ** 0 means the data was not available from the respective
regarding the gender of the POs.

Figure showing Gender Based Data of POs.

Total 723
1087
West Bengal 16
24
Uttarakhand 0
0
Uttar Pradesh 6
69
Rajasthan 170
419
Puducherry 2
2
Odisha 0
0
Nagaland 0
0
Mizoram 0
0
Meghalaya 6
5
Maharashtra 221
376
Lakshadweep 9
0
Karnataka 88
97
Jharkhand 144
60
Haryana 21 Female PO Male PO
0
Gujarat 8
18
Goa 0
0
Delhi 18
0
Daman and Diu 3
1
Dadra and Nagar Haveli 1
0
Chhattisgarh 0
0
Arunachal Pradesh 8
12
Andaman and Nicobar Islands 2
4

Figure 2

7
This is an approximate figure which was telephonically given by state officials.

11 | P a g e
2.5. Educational Qualifications of the Protection Officers
The state government shall by notification nominate /appoint / re-designate all/any of the
following persons as protection officer and notify the area or areas.8 All states have different
qualification for the Protection Officers which lacks uniformity. For instance, one government
has issued order that all the POs should have master’s in social Welfare, while on the other
hand some state has that PO should have work experience in social work educational
qualification should be minimum graduation.

2.6. Charge of Protection Officer (Independent/ Additional)

From the collected data telephonically, it can be summed up that only 6 states out 23 States
and UTs have protection officers who independent in charge which are, Delhi, Gujrat, Haryana,
Maharashtra, Odisha and Pondicherry. Additional charge is the namesake charge for the duty,
basically the POs are given the extra duty which they usually ignore or say are not able to
perform because of the workload. Additional charge is burdensome and there is need for the
state governments to recruit independent PO to improve the implementation of the PWDVA.

2.7. Awareness about the ACT

Population of India is 1.311 billion and out of which Rural Population in India: 68.84%
Urban Population in India: 31.16%; after analysing the data and education pattern in the
country, change in the country can be done by connecting to its roots and roots of India lies in
rural India, which means awareness has to be spread in the rural India, we focus on the urban
area and the semi-urban area where we have access to, but there is still major part of India
which are rural and can’t accessed and there is no education and awareness about the act and
it is still considered that in patriarchal society it is the duty of the women to be the slave of her
husband and become the victim of the violence. There is lack of awareness about the act in
India despite many campaigns. There is lack of awareness even in the urban societies, in the
recent study of psychological health survey of India 2016 the women in urban societies tend to
cope up with domestic violence in the name of compromise and adjustment.

There is still stigma in the society that think breakdown of marriage is black spot on the family
which needs to be changed. Regarding awareness of the act, the act is complex legislature and

8
Section 37 (2) (a) and (b) of the Act.

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can’t be read by common man, it should be simplified. There is lack of awareness among
children regarding domestic violence.

2.8. Budget of the state for Domestic Violence

In the present scenario 8 states out of 24 states have different budget provision for the act, the
rest of states don’t have the budget which results in the lack of the infrastructure for POs, and
which result in lack of efforts made by the POs. States have provided specific budget for the
act for the efficient working of the act even if it is centralised act. For instance, Tamil Nadu
government has allocated in 2014-15: Rs 10,166,000.9 During the year 2016-17, a budget of
Rs.590.00lakhs has been allocated and Rs.339.65 lakhs are released and an expenditure of
Rs.513.65 lakhs (including protection officers’ salary and allowance) has been incurred up to
the end of March 2017.10

2.9. Service Providers

The Service Provider is an organization which works towards helping women and is registered
under this law. A victim can approach a Service Provider to record her complaint and to get
medical help or a safe place to stay. According to section (1) of section 10 of the act, instead
of heading to the Protection Officer, the victim can approach the Service Provider to make a
complaint.

The Service Provider then records the complaint (domestic incident report) and sends a copy
to the local Magistrate and the Protection Officer.

If the Service Provider has medical facilities, they can examine the victim and send a copy of
the medical report to the local Protection Officer and police station. If the Service Provider has
facilities for a shelter home, then they can provide the victim with a place to stay. When they
do this, they will need to send a copy of the report to the local police station. No one can pull
up a Service Provider in court for something they have done under this Act in good faith.

9
http://hrf.net.in/status-of-women-with-reference-to-gender-based-violence-in-tamil-nadu/ Article Title Status of
women with reference to gender based violence in Tamil Nadu Date Accessed August 26, 2018
10
http://dwcdkar.gov.in/index.php?option=com_content&id=102%3Aprotection-of-women-from domestic-
violence-act-2005&catid=108%3Awomen-welfare&lang=en, Department of Women and Child Development,
Karnataka, Protection of Women from Domestic violence Act, 2005 Date Accessed August 27, 2018.

13 | P a g e
In the data collected from the 23 States and UTs there are 881 service providers which are less
in number, SPs are for the welfare of the victims they provide facilities such as-

• Family Counselling
• Legal Aid
• Vocational Trainings
• Shelter Homes
• Medical Aid

These all are necessary for the victims since the proximity of violence cannot be determined.
The proper data can be found in the data sheet attached.

The problems faced by the Service Providers are:

• The State Govt. don’t recognise the SPs and don’t provide the budget and support to
them.
• Due to the lack of support and encouragement by the state govt. there are no SPs in
some states like Bihar, Uttar Pradesh who have no budget for the PWDVA because of
which the service provider which are appointed face problems and leaves.
• There are 55% of states in India which still don’t have SPs under this act it is because
of lack of persistence and implementation process of the Govt. Departments.

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3. ROLE OF NON-GOVERNMENTAL ORGANIZATION IN
PWDVA

Indian CSOs and women’s organisations have played an active part in keeping the issue of
domestic violence at the forefront of public discourse in India. Their work can be broadly
divided into three major spheres: firstly, at the level of influencing legislative process,
secondly, educating and Rethinking gender-based violence and public health policies in India:
Insights from Dilaasa, Mumbai, India, in Keerty Nakray, Gender Based Violence and Public
Health - International Perspectives on Budgets and Policies, Routledge, New Delhi.

Protection of Women from Domestic Violence Act 2005: Lessons from a decade of
implementation sensitising the public and thirdly, at the level of grassroots in enabling people
to access justice based on the pro-women legislations and providing them with essential
services. For a description of Oxfam India’s work on VAWG and in relation to the PWDVA
specifically. The very notion of a comprehensive civil legislation on domestic violence and the
drafting of the Bill that would become the PWDVA was led by a Delhi based women’s
organisation called the Lawyers Collective. After the Bill was passed, Indian women’s
organisations and other CSOs have continued to lobby for better implementation of the Act. In
2012, a ‘PWDVA Advocacy and Action Group’ was set up with Oxfam India as one of its key
member organisations. The group includes about 40 prominent individuals and organisations
across India and they strive towards making collective efforts at influencing the government
on the PWDVA. The strategies include holding small meetings with various stakeholders,
disseminating factsheets, high impact letters and postcards to members of legislature and senior
level bureaucrats from relevant ministries. As a precursor to advocacy, these organisations have
also worked together to conduct situation analyses at the state level, collate data on gaps and
share people’s stories with those in power. Public engagement has been done in campaign
mode, including interactive web campaigns and celebrity endorsements.

One of the biggest and most well-known anti-domestic violence public engagement campaign
in India was titled ‘Bell Bajao’, literally meaning ‘ring the bell’. It was launched in 2008 by
Breakthrough, an international human rights organisation and particularly targeted men and
boys. The idea was to encourage people to interrupt an occurrence of physical violence in the
neighbourhood by ringing the doorbell of a house and asking for simple things – like borrowing
sugar or requesting a glass of water. At the grassroots, CSOs have provided much-needed

15 | P a g e
support and services to the survivors of domestic violence. They work to provide counselling
services, medical and legal aid, and shelter, and negotiate with state actors on survivors’ behalf.
Many organisations are also conducting trainings and workshops with implementers to educate
and sensitise them on the PWDVA.

The NGOs involved in the emancipation of women provide various services to the victim in
the form of- Shelter, medical assistance, conciliation, counselling, financial or entrepreneurial
assistance, legal aid and legal literacy, leading agitations and demonstration, public interest
lawyering etc.

3.1. NGOs are strong and effective agency

Independent entity- Mostly they work independently apart from government funding and
without government participation, so they have the better chance of scrutiny of governmental
actions. They can give independent opinion for the better implementation without bias and
government interference and pressure.

Helping nature- NGOs help people to raise their grievances in the society and provide them
means to fight for their rights.

Publicity awareness- NGOs help in popularizing government schemes and encourage the
people to derive profit from them.

Suitable to people- These NGOs can adopt methods in their fields according to situations and
needs of the people.

Changes in policy according to societal needs- They have ability to communicate from top
to bottom of the government. They can take the help of skilled and expert persons freely
according to their requirements and can change policy as per societal needs.

Utility- NGOs are a boon for the service of masses and they are useful for the society beyond
doubt.

3.2. NGO weaknesses/ bleak picture about NGOs

NGO’s small in size means that their projects rarely address the structural factors that underlie
rural poverty. Small size, independence, and differences in philosophy also militate against

16 | P a g e
learning from each other’s experience and against the creation of effective forums, whether at
national or provincial levels.

NGOs have limited capacities for tracing the policies of government and are therefore limited
awareness and resources as they lack governmental support. Some NGOs are more accountable
to external funding agencies than to the clientele they claim to serve. Donor’s pressure to
achieve short-term impacts, and the cheap publicity.

Some NGOs are corrupt and exist only to siphon money in collusion with unscrupulous
political leaders and corrupt bureaucrats.

Many NGOs exist only on paper. The works that they claim to do are done only on paper. The
sordid facts are that the clear majority of NGOs are being used to siphon funds, divert funds,
misuse funds, turn black-money into white, capture lucrative sectors/ areas, keep genuine
people out, side-track motivated social workers deliberately’. Various organizations working
for the women’s purposes under the banner of ‘stri-mukt have used the forum to enhance the
misunderstandings and to instead bridging the gaps of families have encouraged the man versus
woman fight and stretched the family matters to the extent of break ups.

Though remains the facts that their dedication to social purposes in India is undeniable hence
it was for the first time the legislature has recognized its existence as their contribution both in
propagating governmental and non-governmental policy implementation is undeniable. Their
help in initiating legal mechanism in dealing with the cases of domestic violence will
effectively help in the implementation of the Act. The Act seeks to empower the agencies to
set in to motion the legal process on behalf of the aggrieved person.

3.3 HUMAN RIGHTS LAW NETWORK, DELHI (HRLN)

HRLN is a collective of lawyers dedicated to the use of legal system to advance legal rights,
struggle against violations, and ensure justice for all. It’s a non-profit non-governmental
organization. The institution believes human rights are universal and indivisible, and their
realization is an immediate goal.

3.3.1. Establishment and organizational Goals of HRLN

Founded in 1989, HRLN evolved from an association of people providing day-to-day legal aid
for the poor, to the largest network of lawyers using the legal system to provide access to justice
for the marginalized, in 26 states across the country. In its twenty-one years of operation,

17 | P a g e
HRLN has created a massive and widespread impact on numerous human rights concerns and
has fundamentally influenced the legal discourse on human rights in the country. They work
out legal interventions by campaigns, advocacy, networking, monitoring, fact findings,
investigations, documentations and training on human rights.

3.3.2. The Women’s Justice Initiative (WJI)

HRLN has participated in the struggle for women’s justice for over a decade. The Women’s
Justice Initiative at HRLN works against the backdrop of gender inequality, discrimination and
the gross violations of women’s rights, with the objective of using the law to oppose all forms
of gender-based discrimination and violence against women and to increase women’s access
to the justice system as a vital means to their empowerment. In keeping with the philosophy of
HRLN, WJI provides comprehensive free legal services especially to poor and marginalized
women. Cases by men against women are not accepted at HRLN, as a matter of course.

The WJI team is comprised of a national network of lawyers and social activists who have been
intimately connected with the women’s movement. They have developed deep partnerships
with grassroots women’s NGOs, supporting them in the collective struggle to address the
public denial of women’s rights. All twenty-six HRLN units take undertake work relating to
women’s justice.

3.3.3. WJI’s Issues of Concern include

Rape and assault, domestic violence, sexual harassment of women at work place, matrimonial
disputes, witch-hunting, honour killing, any other gender based discriminations and
exploitations etc. they work both in court and outside court with different strategies like—
Legal Aid and Public Interest Litigation, Legal Counselling to women who come to crime cell,
,Law and Policy intervention by drafting legal gender policies for organizations and
institutions, Legal Education, Training, and Judicial Colloquia and Campaigns, People’s
Tribunals on women issues including population policies, two-child norm, witch-hunting,
violence against women in conflict zones. Research and Publications etc.

3.4 LAWYERS COLLECTIVE

Lawyers Collective, is a group of lawyers with the mission to empower and change the status
of marginalized groups through the effective use of law, and an engagement in human rights
advocacy, legal aid and litigation. LCWRI actively uses law as a tool to address critical issues
of women especially regarding domestic violence, sexual harassment at the workplace, other

18 | P a g e
matrimonial and family related matters, and crime against women regarding dowry harassment,
sexual assault and reproductive rights.

LCWRI’s role in drafting of and nationwide lobbying for the present enactment of The
Protection of Women from Domestic Violence Act 2005 is now world known. It worked as a
strong pressurizing institution for the ultimate passage of the Act. The strong public opinion in
the country was only the outcome of the work of LCWRI. To make the law real effective
instrument of emancipation of women from the violence it is necessary to evaluate and monitor
the core effective functioning of the legislation hence they are annually conducting monitoring
and evaluating the way PWDVA, 2005 is implemented across the country. LCWRI believes
that such an ongoing monitoring and evaluation exercise is essential to redeeming the promise
of the Act. It is only by mapping the implementation of the Act on the ground, analysing
emerging trends, collating best practices and identifying infrastructural needs and challenges,
which we can ensure that the law remains responsive to its context and, thus, effective in
realising a woman’s right to a violence-free home.

3.5. Role of NGOs And Other Agencies Under PWDVA, 2005

With the object of giving the ultimate relief to the victim of domestic violence the provisions
are made in the PWDVA, 2005 itself by recognizing the external agency or NGOs to make the
beneficial provisions reach the victim in time and promptly. The said Act itself defines them
in the name of Service Providers (SP) as entity registered under sub sec (1) of Sec. 10.11

Sec 10 of the PWDVA2005 defines Service Providers as registered organization which work
with the objective of protecting the rights and interest of women by lawful means providing
legal aid, medical financial and other assistance. The legal requisite is inserted in the Act as
they must be registered12 under the Societies Registration Act, 1860 (21 of 1860) or a company
registered under the Companies Act, 1956(1 of 1956) or any other law whose objective is to
protect the rights and interests of women by lawful means including providing of legal aid,
medical financial and other assistance. Such organization must be desirous of providing
services as service provider.

11
Sec 2(r) of the Act.
12
Protection of Women From Domestic violence Rules, 2006 Rule 11.

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Registration- The desirous organization must make an application13 in the prescribed form VI
to the state government. This form gives information as to what services are being rendered
such as shelter home, psychiatric counselling, medical assistance, family counselling,
vocational training centre, awareness programme, counselling regarding family disputes, or
any other services. The details as to the number of persons working their qualification,
registration details etc.

The state government makes the necessary enquiry as to the details provided in the application
and verifies about the suitability of the applicant desirous organization register and issues a
certificate of registration. The purpose of getting the registration compulsory is that association
claiming to be public service must be identifiable body, and secondly it should be found that it
is bona fide body of recognizable individuals and thirdly there should be an assurance when
the body of persons claiming to do service will function in a responsible way observing the
rules of democracy in their day to day activities.

Eligibility Criterion- The service provider is required to possess the eligibility criterion like
the organization is offering the services at least three years before the date of application, in
case of the medical services and psychiatric counselling centre the state government ensures
that the applicant fulfils the requirement for running such facility laid down by the respective
regulatory bodies.

It is incumbent on the state government who shall provide a list of service provider in the
localities to the concerned protection officers and to publish the list of them in the newspapers
or websites. Whereupon the protection officer maintains the register duly indexed about the
details of service providers.14 Under the Act the provision for service provider was meant to be
an optional responsibility that the civil society organization could choose to take, however last
three/ four years it has been observed that various states had registered family coursing centres,
special cells and shelter home which are already receiving state funds under the different
schemes as service providers.

The PWDVA, 2005 had expressly recognized the efforts of NGOs working on women issues,
which continue to play important role in implementation of the Act. It is necessary to see their

13
Ibid
14
Rule 11(3)&(4) Protection of Women From Domestic violence Rules, 2006.

20 | P a g e
views and observations.15 It reveals that the service providers the recognized NGOs are still
unclear about their roles; few are unaware of the fact that they have been notified under the
Act; they expressed the need for better coordination between them, and the nodal agency,
adequate budget provisions. The lack of knowledge and inadequate training heavily affect the
implementation. But few of them strongly believe about their role of active participation in
implementation programs. And some NGOs also believed to be proactive in assisting the victim
woman as well providing the moral support in the court. Very few of them express the concern
about the DIRs filed by them, as it was not recognized and considered by magistrates though
provided under the Act.

3.5.1. Powers of Service Providers

The concept of service provider is introduced in the Act for enabling the voluntary organization
to move actively and efficiently help woman in distress. Domestic Incident Report, The Service
Provider has power to record the Domestic Incident Report 16 in the prescribed form if the
aggrieved person so desires and forward a copy to the magistrate and protection officer having
jurisdiction in an area, where the offence of domestic violence takes place. Get victim
medically examined The Service Provider has a power to get the aggrieved person medically
examined and forward a copy to the protection officer as well the police station within the local
limits where the alleged domestic violence incidence takes place and provide shelter. He has a
power to ensure the aggrieved person is provided shelter in a shelter home17 and report of
lodging to the police station where the domestic violence took place.

15
NGO meet held in India Habitat Centre, New Delhi on 7 August 2010 where in the representatives from various
states attended c.f Fourth Monitoring and Evaluation Report 2010 on Protection of Women From Domestic
Violence Act 2005, by Lawyers Collective in collaboration with The International Center For Research on
Women(ICRW).
16
Sec 2 (e) of the Act.
17
Sec. 2(t) of the Act, meaning any shelter home as may be notified by the state government to be a shelter home
for the purposes of this Act.

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4. STATE-WISE HURDLES FACED IN IMPLEMENTATION
OF PWDVA

Unfortunately, despite media coverage and gender sensitization, Magistrates remain amongst
the most ill-informed about the provisions of the PWDVA. Practicing lawyers have found that
Magistrates are often reluctant to provide minor monetary relief to women, since they are
uncomfortable with reintegrating them into their families after providing them with temporary
monetary relief. Lawyers practicing in the Districts have also found that Magistrates are often
completely unaware of the Act or require constant references to case law.

Status of Sates, question asked to concerned authorities, social workers of NGOs’, advocates:

4.1. ANDHRA PRADESH

Emerging from the Andhra Pradesh courts, on domestic violence. The ‘Sheik Jaffrey’ case is
one of the cases in Andhra Pradesh that received a series of favourable orders, including an
order for maintenance, protection from mental and verbal abuse, access to the shared
household, as well as child support. There are numerous cases in Andhra Pradesh that have
included both the child and the mother within the ambit of the case. the Police have been
receptive and have successfully implemented Protection Orders for women facing domestic
violence. Although district level officers have been appointed in many districts in Andhra
Pradesh, they are not executing their duties effectively or adequately.

Women have to bear all of the expenses of lengthy and costly trials. This is a serious
impediment for victims of domestic violence in being able to access justice, as often they are
in impossible financial circumstances and find it difficult to bear the expenses of the case.

Protection Officers do not serve notices to the respondents in a timely manner. There are cases
where notices remain undelivered for six months. This greatly lengthens the whole procedure
in granting women access to justice through the PWDVA. The number of petitions registered
from 2006 to 2014 is 25158, in which Compromised cases are 5728 cases, DIR are 14040,
Interim orders are 1033 and Final Orders are 3649. 18

4.2. ASSAM
The Protection Officer in Guwahati is efficient, diligent and thorough, and should be credited
for any successes of the PWDVA in the district. There is a good relationship of service

18
NCRB Report, 2014.

22 | P a g e
providers with the Protection Officer, which makes it easier to work effectively on cases of
domestic violence.

In Assam, cases of domestic violence are frequently related to the over consumption of alcohol.
Another noticeable trend in the state is that often, in cases where a child is involved, the
respondent will abscond with the child.

Out of the 27 districts in Assam, only the district of Guwahati has attempted to implement the
Act. The presence of NGOs and women’s rights advocates in the district of Guwahati has had
a major impact on the ability of the district to implement the Act. For example, the Protection
Officer in Guwahati is active and receptive to cases of domestic violence in the district because
of the presence of the different NGOs in the district, which has been taking on numerous cases
of domestic violence. The charge of the POs are additional and there is need for NGOs to delve
into the roots of the state to spread awareness about the act and so that the POs are pressurised
by the NGOs effort and work efficiently.

4.3. CHHATISGARH
The challenges faced by lawyers in filing cases under the PWDVA in Chhattisgarh. Only a few
of these cases have had positive outcomes. In Smt. Neetu Singh Vs. Sunil Singh, Despite an
affidavit of the applicant as well as reports from the Protection Officer claiming a threat to life,
liberty, and person of the aggrieved, and her family members, the Chief Judicial Magistrate did
not pass interim (protection) orders in the favour of the aggrieved. The judge refused to accept
a written complaint on this matter, whereupon a written complaint was sent to the Chief Justice
of the Chhattisgarh High Court.

In Smt. Rachna Rao Vs. Family Court Bilaspur, Chhattisgarh19, This case challenged the
conduct of the family court of Bilaspur, Chhattisgarh, for refusing to accept an application
under Section 12 of the PWDVA. This application included a written complaint about the
conduct of the presiding judge of the family court who had refused to accept the application,
due to which the aggrieved had been compelled to send the application by post. Copies of the
applications were annexed along with the Writ Petition and Writ Application in the High Court,
but despite scheduling hearings six times, the matter was kept pending by High Court.

A case reported where, despite protection order from the magistrate, the accused very openly
beats, scandalizes, threatens, wrongfully restrains, insults, tortures, and mentally and physically

19
(W.A. 273/09)

23 | P a g e
aggrieves the petitioner. Even though reports were then filed to the Police under Section 156(3)
of the Code of Criminal Procedure, complaining that the police had failed to register a
cognizable offence, no preventative measures were adopted by the Police, Magistrate,
Protection Officer, or Service Provider. The advocates concerned with this case filed a writ to
enforce the statutory provisions and to secure the protection under the Act. The case is still
pending.

In conclusion, it was emphasized that cases under the PWDVA have suffered from severe
delays. Section 12(5), which states that, “the Magistrate shall endeavour to dispose of every
application made under sub-section (1) within a period of sixty days from the date of its first
hearing” is not paid any attention to by the Chhattisgarh courts. Furthermore, no time limit is
affirmed on any of the cases by the High Court, despite the clear directions of the PWDVA
Rules, which state that the family courts should dismiss of the cases within a period of sixty
days.

POs are appointed on the independent charge on District level, yet lack in effort since the state
has most the rural population and needs awareness.

4.4. DELHI
Protection orders are often successfully passed and executed. It is observed, magistrates have
shown little hesitation in passing protection orders for victims of domestic violence. In one
case, which was a case of child sexual abuse, the Magistrate passed an order requiring the
Station House Officer at to submit a plan detailing how the protection order would be
administered. On the other hand, however, it has proved extremely difficult to implement the
orders in cases of maintenance. Often inadequate maintenance accounts are granted. In one
case, a woman was granted maintenance during divorce proceedings, but was not able to secure
maintenance for her child’s school fees using PWDVA. Many women filing for maintenance
for the children under the PWDVA have faced similar challenges. Despite some unfavourable
judgments by the High Court of Delhi and the Supreme Court, there are some recent cases that
can potentially set positive case-law precedent on domestic violence.

Crime Against Women’s Cell in Delhi, has a number of highly trained, sensitized police
officers that deal with complaints of domestic violence. The complaints process at the police
stations is highly regularized. Approximately 30% of domestic violence cases that come to
police stations in Delhi are settled in a compromise. If the compromise does not work, a

24 | P a g e
mediator is brought in and the two parties sign a memorandum of understanding and can then
pursue divorce proceedings.

4.5. GOA
Social workers and activists have quite often been able to secure protection orders under the
PWDVA orders by appearing before magistrates without the assistance of an attorney. Since
Goa has compulsory registration of marriages, petitioners do not have to provide proof of
marriage in cases of domestic violence. Protection and residence orders have been relatively
easy to obtain in the state under the PWDVA. The courts have been directing the local police
station to enforce its orders in cases of domestic violence. In child custody cases, where the
father has absconded with the child, the court has been taking it upon itself to ensure that the
authorities enforce custody orders. There is also a trend towards implementing orders for
maintenance by attaching the income to the order and ensuring that the maintenance is payed
through direct deposit.

Despite these successes, however, there are several challenges that remain to be addressed,
most notably:

• There have been numerous cases where a marriage has been registered in another state,
subsequent to which the respondent has had an extra-marital relationship and is attempting
to deny the petitioner a share in the matrimonial property. In such cases, it becomes far
more complicated for the petitioner to access her share in the matrimonial property.

• Although protection and residence orders are relatively easy to obtain in Goa, the
enforcement of these order have proven problematic and face lengthy procedural delays.

4.6. JHARKHAND
There are paucity of cases filed under the PWDVA in the state. For the most part, women in
Jharkhand are not aware of the PWDVA, even though the Women’s Cell has undertaken some
sensitization work in this regard and a number of women’s organizations in the state are
working to curb domestic violence. Cases of domestic violence do not make it to the High
Court of Jharkhand at Ranchi but remain in the lower courts. Most cases of violence against
women are filed under Section 498-A of the Indian Penal Code. Emphasising the violence
faced by Dalit and Tribal women and identified the primary impediments in the implementation
of gender-laws, such as the PWDVA, in the state of Jharkhand.

25 | P a g e
Since Jharkhand is a relatively newly formed state (formed in 2000), there is no coherent
gender policy in existence. Although a Women’s Commission was established in 2007. Thus,
they have not adequately taken on the responsibility of ensuring the PWDVA is implemented
in the states, yet it is implemented in the state, but no one looks after it. Furthermore, advocates
in Jharkhand are not interested in taking on cases of domestic violence.

Unique forms of domestic violence and violence against women prevail in the Adivasi cultural
context of the state. For example, witch hunting is a form of domestic violence, as in many
such cases the victim’s own family is families are the perpetrators of the violence. Although
the Prevention of Witch (Daain) Practices Act was adopted in 2001, it has not been properly
implemented.

As tribal customary laws prevail, traditional practices exclude women from having any share
in property. Traditional mindsets also make it extremely difficult for women to go to court
against their husbands. Courts are not accessible to women in many districts, as slow modes
of transport and long distances make justice literally inaccessible to many women.

The governmental machinery does not itself have any orientation or awareness about the
PWDVA. The police, judiciary, and even local organizations do not have any proper training
regarding the Act. Most often, Child Development Project Officers are also appointed as
Protection Officers. There are 204 Protection officers appointed which are CDPO notified and
are of additional charge. Jharkhand has recently implemented in the act in the state since earlier
scenario is mentioned below.

“In the state where closed-door crimes against women such as dowry torture, wife-beating,
forced abortion of female foetus, abandonment or illegal second marriages are rife, the lack of
even one case under Domestic Violence Act is shocking.

More shocking is the reason. As it emerged during the flagship police-public connect
programme, where DGP Rajeev Kumar at Dhurwa state headquarters in Ranchi interfaced with
24 districts via videoconference, police personnel either don’t know about the Act or were
clueless on imposing its sections.”20

20
https://www.telegraphindia.com/1140828/jsp/jharkhand/story_18770462.jsp, The Telegraph, Domestic
Violence Act scores zero Date August 28, 2018.

26 | P a g e
4.7. KARNATAKA
Attitude of the Karnataka courts towards cases filed under the PWDVA have been positive for
the most part. Both the Bangalore and the Raichur courts have passed a number of judgments
that are favourable to the case of the petitioner in cases of domestic violence. Several good
Maintenance Orders have been passed by the Karnataka courts.

Despite these positive signs, however, certain cases are dismissed for a lack of personal
jurisdiction, especially in cases filed under the PWDVA on child abduction, for the protection
for mothers against sons etc. Furthermore, Sessions Courts often greatly delay the process of
accessing justice for women facing domestic violence.

4.8. KERALA
Since the passage of the PWDVA, the numbers of cases filed under Section 498- A of the
Indian Penal Code have decreased. Judges ridicule petitioners when they assert verbal and
mental abuse and only take cases of physical (and sometime economic) abuse seriously.
overall, despite gender-sensitization training, the attitude of most magistrates is quite negative
towards women facing domestic violence. While many Protection Officers are cooperative,
they are not equipped to pass any orders. One suggestion is that there should be separate
officers for passing these orders. Kerala court ruled that notice should be served before an
interim ex parte order can be passed. Many Judicial Officers have expressed the need to have
a separate court to deal with matters under the PWDVA. The Mahila Samakhya has reported
cooperation by courts and police in most district and that the Gender Violence Management
Centre is active and ensures prompt access to medical aid. POs face problems in serving
notices: The 3-day limit is too demanding, there is a serious lack of sub-staff, travel to remote
areas is difficult on poor travel allowances and when the addresses provided are vague or
incorrect, and often the opposite party refuses to accept the notice.

• The Aggrieved face problems in accessing POs as they have to travel long distances,
POs are often unavailable as they are out serving notices, POs do not have their own
room so the aggrieved has no privacy while sharing her story, most POs are male (even
though Section 8(ii) of the PWDVA specifies that the POs shall be women as far as
possible), so aggrieved women are often uncomfortable sharing their problems with a
male PO.

• There is no clarity regarding role of protection officers, service providers & legal
counsellors. Often, legal counsellors are posted in Shelter Homes – a place women do

27 | P a g e
 not prefer going to. Legal counsellors are often reluctant to take up cases of domestic
violence.

• POs even face hostility from Magistrates, as Magistrates have patriarchal views are
reluctance to pass orders, do not give cases of domestic violence priority, and demand
Domestic Incident Reports from POs in addition to those submitted by the Service
Provider.

• Probation Officers are given additional charges of Protection Officers. As a cumulative

effect, most often the Protection Officers’ role is now more or less limited to filling up
of Domestic Incident Reports. The Magistrates, considering the ‘workload’ of the PO’s
ask the women to take registered steps with Alternative Dispute to the respondents.
This causes inordinate delay to even know whether the respondent is in receipt of the
summons.

• Service Providers are hesitant to provide shelter to the children, only their mothers get
admission.

• There are no effective channels of communication between the Courts, Protection

Officers, Service Providers, etc.

• Orders for monetary reliefs are stayed by the Appellant Courts, making it difficult for
women to sustain themselves, even if they manage to get orders from lower courts.
Furthermore, the Appellate Courts take the liberty of reducing the monetary relief
amount according to their whims and fancies, without even looking at the capacity of
the respondents or, in some cases, even without the respondent making a prayer for
reducing the amount.

4.9. MADHYA PRADESH

The PWDVA is essential, even though Section 498-A and other Sections of the Indian Penal
Code also provide for the protection of women. The act has failed, however, by not providing
provisions to penalize service providers for the failure to discharge their duties. Another
problem with the PWDVA is that it perpetuates social norms that are false and suggests that
only men are perpetrators of violence.

28 | P a g e
Protection Officers usually advise women against litigation and Women’s cells have been
converted into Shelter Homes, which are very limited in number. There are few cases that are
filed under the PWDVA.

4.10. MAHARASHTRA
The Protection Officer are appointed on block level. These officers have additional charge but
are supervised by the independent PWDVA cases are dealt in the same way in which cases
under Section 125 of the Code of Criminal Procedure are dealt with; they are lengthy legal
proceedings and do not really provide immediate or interim relief. Although Section 14 of the
PWDVA specifies that, “the magistrate may, at any stage of the proceedings under this Act,
direct the respondent or the aggrieved person, either singly or jointly, to undergo counselling
with any member of a serve provider who possess such qualifications and experience in
counselling as may be prescribed”, neither the magistrates nor the Protection Officers are
interested in sending cases for counselling.

The 60-day limitations on disposing of cases under the PWDVA are not being implemented.
Usually, cases last 6 months and there is constant pressure to compromise, even if neither party
wants to.

Cases are often adjourned for up to one month for evidence collection, which usually implies
Protection Officer’s reports. Although according to the Act, Protection Officers reports are not
always required, the Maharashtra courts they are being treated as necessary documents.
Therefore, disposing of cases in any less than one month is not possible.

4.11. MANIPUR
Women living in conflict zones, such as Manipur, face extreme and diverse forms of violence
both inside and outside the domestic sphere. The filing and implementation of orders in
domestic violence cases is extremely difficult and the advocate has had to use a number of
unconventional manoeuvres and has had to put herself at great personal risk in order to file
cases and appeals, and secure orders, especially in child custody cases.

For the most part, law enforcement authorities refuse to follow the orders of the court in
domestic violence cases. To address this phenomenon, it has become an important tactic to
ensure that the authorities sign stating their refusal to enforce an order, as a means to hold them
accountable for their inaction.

29 | P a g e
4.12. NAGALAND
Asserting that domestic violence is a grave reality in Nagaland. There is often the perception
that Naga tribal culture ascribes a relatively high social standing to women, however, this point
of view does not consider the fundamentally patriarchal mindset and social structure of Naga
society. Violence against women is built into the very social fabric of patriarchal society. the
system of monetary relief and compensation that the PWDVA sets up does not tackle the
fundamental structures of violence against women. Therefore, compelling men to pay money
damages, in the way that the PWDVA does, will not end male chauvinism. Legal approaches
must be coupled with counselling, gender sensitization and an overall progressive change in
societal attitude towards women. The legal system in Nagaland is unique due to the existence
of legal pluralism, due to the application of Article 371-A of the Indian Penal Code in the state.
Most often, cases of violence against women are decided by the diktats of customary law,
especially in cases of domestic violence, which is seen as a ‘private affair’. This makes it
extremely difficult to hold the perpetrators of violence accountable. With 80% of Naga society
comprising of 42 tribes, the formal legal system is rarely used especially in cases of domestic
violence.

4.13. RAJASTHAN
Rajasthan courts prioritize cases of domestic violence. There exists a community of activist
attorneys who are committed to provide women with reliefs. The legal community is eager to
use the PWDVA and a memorandum was created describing the ways in which the provisions
of the act can be used to best secure the rights of women.

Advocates should concentrate on Section 23 of the PWDVA, which gives the court the power
to grant ex-parte and interim orders, since it can provide immediate monetary and financial
relief to survivors. The PWDVA is good for providing temporary and immediate relief, rather
that Section 125 of the Code of Criminal Procedure, which allots about 7 months to provide
relief.

In one particular case, an elderly woman managed to secure a judgment for physical damages
against her husband and his relatives under the PWDVA. In another case, a woman was ordered
to undergo psychological evaluation, and in absentia the court ordered for her to be moved to
the custody of her parents. The PWDVA has also been useful for obtaining injunction orders
to stop husbands or their families from alienating the rights of petitioners in shared household
property.

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The 60- day time frame given to dispose off a case under the PWDVA is both restrictive and
unrealistic. the Act allows for non-attorneys to file petitions, the Act is too complicated for
those without a legal background to understand. There is a need for the police, magistrates and
advocates to undergo gender sensitization training. On the whole, the PWDVA is adequately
used in Rajasthan. When cases are filed using this law, or other laws such as Section 498-A of
the Indian Penal that address the issue of violence against women, the police, magistrates and
even lawyers believe that these laws are being used by women to be litigious and adversarial.

4.14. WEST BENGAL

Some of the good procedural practices in West Bengal for the service of notices on respondent.
In a Section 21 child custody case, the court was not satisfied with the use of registered post to
serve the notice. Finally, the notice was advertised in the local newspaper, and only then was
the court was satisfied that the notice had been appropriately served on the respondent.

Highlighting some of the procedural difficulties facing the implementation of the PWDVA in
West Bengal. Protection Officers are given extremely low salaries with low travel allowances;
therefore, they do not have the incentive to discharge their duties. Also, Protection Officers are
inundated with work and one Officer might have responsibility over a territory with over 30
police stations, due to overall lack of awareness about the Act across different sectors, it
becomes exceedingly difficult to effectively implement the protections accorded to women
under the PWDVA.

4.15. Drawbacks in The Present Implementation System

1. 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
eleven years of implementation, duty of each role still seems ambiguous.

2. Appointment of Protection Officers (POs)

POs have been appointed on a full-time basis only in 7 States and their number is inadequate
to address the enormity of the issue. Wherever existing officials in the government machinery
like ICDS CDPOs, welfare officers, probation officers, Dowry Prohibition Officers, Child

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Marriage Prohibition Officers, etc have been given ‘additional charge’ as POs, they are unable
to work effectively as POs since they are already overburdened, and sometimes under-skilled
for the task at hand. Further, POs do not have the infrastructure or enough funds to carry out
their duties.

3. Lack of Training of Police Officers and Magistrates

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.

4. 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.

5. 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.

6. Disparities in Implementation

There are major disparities in implementation of the law in various states. For instance, while
Maharashtra appointed 597 protection officers, Assam had only 22 on its rolls, and Gujarat 26.
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

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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.

7. 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 officer’s 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.

8. 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.

9. 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 poor. The state has 7 passed
on all responsibility to the service providers. They must 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.

10. Notification of Service Providers (SPs)

Out of 36 States and UTs, only 18 States and UTs have notified Service Providers under the
Act, and they remain too few. No clear guidelines have been drawn for enlisting of SPs,
definition of their roles, and their convergence with other stakeholders. SPs are also not being
given any financial inputs to carry out their roles.

11. Capacity Building

Currently, there is a critical gap with respect to the capacity building of people involved in
implementing PWDVA. Where POs have been appointed, the extent and nature of training has

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been inadequate. Training of other stakeholders like police, lawyers, and judiciary is equally
important. Some States have taken initiative in this regard, but it needs sustained support. Due
to lack of understanding of gender, violence, patriarchy and sexuality, POs, SPs, police,
lawyers and judges, amongst others, often encourage outcomes and decisions like
‘reconciliation’, or label women survivors as ‘bad women’ and ‘home breakers’. These emerge
from existing social attitudes of the duty bearers under PWDVA. Addressing these attitudes is
critical to enable women to report violence, access justice and exercise choices based on their
own needs and interests. Capacity building therefore plays a significant role in starting this
shift in attitudes.

12. Coordination, Monitoring and Evaluation

While the Act envisages a multi-agency response to violence against women, many states have
not formed Coordination Committees. There is no mechanism for reporting and monitoring
PWDVA within the government. This impacts every aspect of PWDVA implementation, like
awareness generation, capacity building, service of notice, enforcement or breach of orders,
etc.

13. Providing Immediate Relief to the Survivor

The PWDVA Act recognizes that survivors of violence require counselling, shelter, health
services and financial support. In this context, the lack of counsellors remains a serious
concern. Also, no additional shelter homes have been set up for survivors of domestic violence.
The meagre 260 Swadhar homes in the country and existing short-stay homes are not able to
address the vast needs of women in distress who require shelter. Women survivors of violence
– particularly those who have no steady source of income, have limited assets, are single, and
have dependents to look after – also need some immediate financial support before interim
orders for maintenance and shelter are provided under PWDVA. In reality, it is sometimes
months and sometimes years before survivors get any monetary relief. Some provision for an
‘untied fund’ to financially support vulnerable women is a basic requirement to help these
women access justice.

14. Resource Allocation

As indicated by Centre for Budget & Governance Accountability (2011), the Central
government has not provided funds exclusively for implementation of the Act. In the absence
of financial support from the Centre, some States have initiated Plan Schemes or allocated

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some basic resources (e.g. an allocation of Rs.7 crores by the Karnataka government).
However, 19 States have not initiated any such scheme. Therefore, it becomes imperative to
have a Centrally Sponsored Scheme (CSS) to bring to affect the various provisions laid in the
Act.

15. Lack of infrastructure

As said earlier the ratio of DV survivors to protection homes, service providers, medical
facilities, employment generation facilities, legal aid etc is adversely proportional.

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5. JUDICIAL PRONOUNCEMENTS

The constitution of India guarantees equal rights to women and directs central as well as state
governments to undertake affirmative actions. Despite this, the low status of women in Indian
society is reflected in nearly all spheres of life, starting from sex selective abortions at birth to
fewer educational and economic opportunities, discriminated access to health care and
entrenched patriarchal norms and biases in everyday life. The public discourse on violence
against women in India started as a concerted campaign against incidents of dowry deaths in
the 1970s and 80s. As a result of sustained campaign, the government responded by enacting
many pieces of legislation like section 498A in 1983 of the Indian Penal Code (IPC), which
made ‘cruelty by husband or his relatives’ a cognizable and non-bailable offence. A woman
could also file for maintenance under section 125 of the Code of Criminal Procedure, 1973
(CrPC) in case of violence or desertion. It was also premised that in case of violence, burden
of proof lies on the defendant, rather than the victim. Further, in 1986, section 304B was
inserted into the IPC which indicted a husband if the wife died within seven years of marriage,
particularly, if the death occurred in conjunction with dowry related demands. In later years,
as women’s organisations presented demands for sensitive handling of violence cases, there
was setting up of family courts, family counselling centres and all women’s police stations.
The experience of seeking justice under section 498A threw light on some additional needs.
The need was felt to widen the definition of domestic violence beyond the scope of physical
harm and dowry demand to include economic and emotional abuse. A need was also felt to
make legal recourse available to women in all types of domestic relationship i.e. to daughters,
live-in partners, widows in the family etc. There were also demands for immediate relief
particularly with regards to shelter and protection.

It is very important for all of us to understand that it is only when a harm against women is
recognized at a social level that it becomes actionable in law. As lawyers and legal
practitioners, we are well aware of the crucial role which law plays in the recognition of harm
and thereby in the struggle of women to have their voices heard and understood and remedied
through corrective measures. However, the best of laws can be rendered meaningless by an
ineffective implementation by the justice delivery mechanism. In matters relating to protection
of women from domestic violence, it is not possible to appreciate the scope of response of the
judiciary by simply reading and analyzing its pronouncements. It is by studying carefully the
way in which the relevant enactments are enforced and interpreted in practice, particularly the

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Court decisions by which effect is given to law that one can be certain, that the standards laid
down by the legislative process are really being observed and new avenues are laid down by
the justice delivery system. People have great faith in judiciary. The power of Judiciary does
not exist in convicting criminals or penalizing for vilification, but it lies in the trust, faith, belief
and confidence of a common person for getting justice. The functions of judiciary are to
interpret the law and adjudicate by applying principles of fairness, neutrality, sensitivity,
honesty and integrity.

Judicial response to any legislation assesses the efficacy of a statute to a large extent. Many a
time, strict literal interpretation of law is totally against the intention of the framers of law. The
examination of some of the present-day case laws on Domestic Violence provides an equivocal
picture. Although there are instances where the judiciary has challenged the existing notions of
patriarchy, granted relief to women and have attempted to give complete and effective
interpretation of the provisions of the Act, but at the same time, there are reported decisions
which have narrowly and conservatively interpreted the prima facie liberal provisions. Besides,
institution of judiciary goes on to reinforce the stereotypical beliefs of how a woman living in
India should behave. Further, the judiciary has often chosen a policy of non-interference while
dealing with cases relating to violence against women since they perceive such matters to be
in the private domain. All these can be witnessed in some of the judicial decisions.

Judgements: Sensible & Sensitive

In a judgement C.K. Thakkar, J. opined that “A socially sensitized judge is a better armour in
cases of crime against women than long clauses of penal provisions, containing complex
exceptions and complicated provisions…”21 Truly speaking there can be no two opinions about
the need of a gender sensitive judiciary to deal with crime against women. It is, at the very
outset acknowledged that, with the gradual rise of crime against women, the Indian Judiciary
displayed not only a greater sense of responsibility but also more sensitiveness. In the exercise
of its jurisdiction and powers the judiciary has devised new strategies, forged new tools and
broadly interpreted the letter of law to uphold the rights of women.

21
State of M.P. vs. Babulal (2008) 1 SCC, 234.

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Judges: Attitudes & Mindsets

‘The report by Sakshi, a Delhi based women’s organization makes startling revelation about
the attitudes of judges towards Domestic Violence. 74% of the judges felt that preservation of
the family should be a preliminary concern for women even if there is violence in the marriage.
90% of the judges said that they would not opt for legal redress in case of domestic violence
involving their daughter or other family relatives. 51% of the judges said that women who stay
with men who abuse them are partly to blame for the situation.’22

In S.R. Batra and Anr. vs. Smt Taruna Batra, the Hon’ble Supreme Court held that the
definition of “shared household” in Section 2(s) of the Protection of Women from Domestic
Violence Act, 2005 is not very happily worded, and appears to be the result of clumsy drafting.
Giving sensible interpretation to the definition of “shared household”, Supreme Court opined
that the wife is only entitled to claim a right to residence in a shared household, and a “shared
household” would only mean the house belonging to or taken on rent by husband, or the house
which belongs to the joint family of which the husband is a member. If the property neither
belongs to the husband nor is it a joint family property of which the husband is a member, it
cannot be called “shared household”.

In D.Velusamy’s 23 case the Supreme Court decided that woman was not entitled for
maintenance because she was unable to prove that she was the legally wedded wife. The fact
of the case is that the woman, D. Patchaimmal filed a case against the man, D. Velusamy in the
year 2001 under Cr. P.C. Sec 125. Her husband denied her claim saying she was not his wife,
but one Laxmi was his wife. U/s 125 (1) Cr.P.C. “wife included a woman who has been
divorced by or has obtained a divorce from, her husband and has not re-married. In this case
the victim woman D. Patchaimmal’s marriage could not be proved. Therefore, the Supreme
Court interpreting the Domestic Violence Act 2005 said that ‘domestic relationship’ includes
not only the relationship of marriage but also a relation, say in the “nature of marriage”. The
word, ‘nature of marriage’ however, has not been defined by the Act. The Hon’ble Supreme
Court in interpreting the relationship in the nature of marriage elucidated that

a) The Couple must hold themselves out to society as being akin to spouses

22
A.P.Shah,J., ‘Domestic Violence Against Women and The Law’– Lawyers Collective Women’s Rights
Initiative, Domestic Violence and Law- Report of Colloquium on Justice for Women- Empowerment Through
Law, P.222 (Butterworths India, New Delhi, First Ed.2000.)
23
D. Velusamy v. D. Patchaiammal (Cr.Appeal Nos.2028‐2029of 2010)

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b) They must be of legal age to marry

c) They must be otherwise qualified to enter into a legal marriage, including being unmarried

d) They must have voluntarily cohabited and held themselves out to the world as being akin to
spouses for a significant period of time. In our opinion a ‘relationship in the nature of marriage’
under the 2005 Act must also fulfil the above requirements, and in addition, the parties must
have lived together in a ‘shared household’ as defined in Section 2(s) of the Act. Merely
spending weekends together or a one-night stand would not make it a ‘domestic relationship’.

“In a feudal society sexual relationship between man and woman outside marriage was totally
a taboo and was regarded with disgust and horror”, noted the Supreme Court in D.
Veluswamy’s Judgement. In this case the Supreme Court tried to contrast the new line of
thinking in the Indian society as reflected from the enactment of the Domestic Violence Act.
The Court spoke extensively over live-in relationships and held that, “in the aforesaid Act of
2005, the Parliament has taken notice of a new social phenomenon which has emerged in our
country known as live-in relationship”. This decision is an apt reminder that the Court is willing
to take judicial notice of the changing social times and unashamed in bringing for the realities
of the Indian social order.

Although the Hon’ble Supreme Court recognised the changing society and the change is
reflected by the enactment of The Protection of Women from Domestic Violence Act 2005,
the opinion of The Hon’ble Supreme Court in paragraph 34is a reflection of masculine
domination while interpreting live-in-relationship. “To get benefit of the live-in-relationship in
the nature of marriage they should satisfy the conditions with evidence. If man has a ‘keep’
whom he maintains financially and uses mainly for sexual purpose and/or as a servant, it would
not be a relationship in the nature of marriage. Merely spending weekends together or a one-
night stand would not make it a ‘domestic relationship.” This is a derogatory remark by the
Apex Court for a woman and which was highly opposed. To this Indira Jaising24 said, ‘As a
woman I am very much hurt. I take strong exception to the use of the word “keep.” No woman
is kept. How can the say that she has kept a man? It works both ways.’25 She said the Supreme

24
Additional Solicitor General of India. (6th July, 2013 to 5th July, 2014), Available at
:http://lawmin.nic.in/la/lawofficers.htm Last accessed Date 10 October, 2018.
25
The Hindu, 22nd October, 2010. Available at:
http://www.thehindu.com/news/national/government-counseltakes-exception-to-use-of-word-keep-in-
judgment/article843120.ece

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Court had to be gender sensitive and ‘this remark by the Supreme Court was highly derogatory
of women and against the cultural ethos of the country where women are held in esteem.’26

India being a signatory to the Convention on Elimination of All Forms of Discrimination

Against Women (CEDAW) prevents derogatory remarks against women. Apart from that, onus
lies upon the judiciary to uphold our constitution and CEDAW.

Again, in Sandhya Manoj Wankhade vs. Manoj Bhimrao Wankhade & Ors.,27 the Hon’ble
Supreme Court extended the ambit of Domestic Violence Act 2005 by defining the term
respondent in Sec.2 (q) of the Domestic Violence Act 2005 as: - ‘any adult male person who
is, or has been, in a domestic relationship with the aggrieved person and against whom the
aggrieved person has sought any relief under this Act: Provided that an aggrieved wife or
female living in a relationship in the nature of a marriage may also file a complaint against a
relative of the husband or the male partner.’ In this case the victim woman filed a case against
husband, mother-in-law and sister-in-law. The petition before Supreme Court was to delete the
names of mother-in-law and sister-in-law from the respondent’s list because they argued, the
case is under Domestic Violence Act, 2005 and the respondent is an adult male person therefore
mother-in-law and sister-in-law cannot be made party being women. Hon’ble Supreme Court
interpreted the act which says, “complaint may be filled against the relative of a husband or the
male partner”. In this case mother-in-law and sister-in-law were the relatives of the husband
and therefore it was very much within the meaning of the Act. This, indeed, is a very positive
interpretation. Normally in most cases, in- laws are involved, harassing and torturing and
sometimes instigating the husband to do so. Escaping from the clutches of law by taking the
plea, that they do not come under the purview of the Domestic Violence Act 2005, Sec.2(q)
was defeating the very object of this Act.

Judicial Approach to this beneficial legislation i.e. PWDV Act, 2005 is not free from abject
and gross male thinking: This is very much observed in some judgements and this was objected
to in no uncertain terms by the women of India. In the Judgement of Justice Markandey Katju,
using words like ‘keep’, ‘one-night stand’, ‘sexual purpose’ and so on are degrading to the
status of women in a civilised society. The demand to delete those derogatory remarks from
the judgment has been turned down. This is not a very welcome attitude.

26
Ibid.
27
CR.Appeal No. 271 of 2011.

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In Milan Kumar Singh,28 it was held that there is no bar to directly filing a complaint with a
magistrate, and the use of the word ‘or’ in section 12(1) of the PWDVA shows that it is the
aggrieved person’s choice if she wants to approach the protection officer first. The Court
further explained that the PWDV Act is a social legislation with the purpose of helping the
aggrieved person, and thus imposing strict procedural requirements would directly contradict
its objective.

In Suresh Khullar vs. Vijay Kumar Khullar29 it was held that a husband’s second marriage
was legally valid for the purposes of his wife’s maintenance claim during divorce proceedings
under S/section 18 of the Hindu Adoptions and Maintenance Act of 1956, even if the husband’s
ex-parte divorce from his first wife had been set aside. The Court relied on sections 2(a), 18,
20, and 26 of the PWDVA, 2005, and found that the divorce decree was in operation on the
day the second marriage was solemnized, making the parties’ second marriage legally valid.
The Court relied on sections 2(a), 18, 20, and 26 of the Act, and found that the divorce decree
was in operation on the day the second marriage was solemnized, making the parties’ second
marriage legally valid, thus allowing for the wife’s recovery and denying the husband’s
immunity for defrauding her.

We have found that some judgments are very judicious. Judges do take a substantive approach
of the legislation while deciding cases. Formal approach does not always fulfil the intention of
legislation. Therefore, judicial response plays a vital role for achievement of object. In the long
run, the judgments do not strike at the root of the problem, what follows is loss of credibility
and respect for the institution among the other constitutional branches and the public.30

An in-depth examination of the responses of the constitutional incumbents at the highest seat
of judgement in the country seem to project a picture that is somewhat mixed. On one hand,
there have been instances where the judicial interpretations have been overwhelmingly in
favour of the aggrieved women, there have been on the other hand, most unfortunately,
instances where the distressed women have been denied the benefit of judgements, where they
mattered most. This has led to a great deficit of trust of the common person towards the judicial
organ of the government, the very organ that has and must shoulder the primary responsibility
of ensuring justice and equity for the mass of people in general, and the women in particular.

28
Milan Kumar Singh & Anr. v. State of U.P. & Anr. (2007 CriLJ 4742).
29
AIR (2008) Delhi 1.
30
Essays in Honour of the Supreme Court of India (B.N. Kirpal et al., Ed. 2000 at p. 182.).

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An endeavour has been made in the following section to understand the fate of women who,
too, have had been at the receiving end in their own homes, and the extent to which the
responses of the judiciary have actually gone to solidly stand by them or otherwise.

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6. CONCLUSION AND SUGGESTED REMEDIES

The varying causes which can spark the violence within the four walls of homes need to be
analysed carefully and a wise study of the factors causing the violence may prevent a family to
suffer from the menace of domestic violence. The domestic violence may have a wider and
deeper impact in life of the victims. A proper societal-legal environment must be built to make
the houses safe and secure for the woman. India cannot prosper by keeping half of its
population under duress.

The assumed hypothesis is affirmative that the implementation process of thee act is lacking
and needs to be worked upon either by judicial activism or the change by parliament. The Act
should be changed according to Indian society.

The effort made by the Government to curb domestic violence against women and safe guard
her constitutional rights, but still there is a rise in domestic violence. The reason being incorrect
implementation and misuse of these laws by the miscreants; may it be the accused, the police
or the lawyers. If applied correctly the Protection of Women against Domestic Violence Act
2005 (PWDVA) is a powerful act. After the implementation of the act wide range of cases were
filed across the states of India and judgments delivered under PWDVA by the family courts,
civil courts and in few by the supreme courts. It will remain worthless if there is lack of
awareness amongst the people of society. In addition, the act lacks implementation process,
there should be a body setup to look after the implementation of the act in the respective states.
Since it is the 12th year of the enactment of the act there should be some positive actions and
strategies to be followed.

1. Separate Courts

In some States, separate family courts/ mahila courts have been constituted that deal with cases
of domestic violence, such as in Delhi, Maharashtra, U.P, etc. However, in most states, the
cases of domestic violence are taken up by Judicial Magistrates First Class and there is no
separate mahila court/ family court to deal with these matters. Cases under the PWDVA are
also often not assigned women judges. The judges dealing with domestic violence matters in
these states are also handing cases of other types as well, such as cases of cheque-bouncing
(U/s 138 N.I Act), criminal cases of petty offences, etc. As a result, these judges are
overburdened and cannot give enough time to cases of domestic violence. Thus, cases of

43 | P a g e
domestic violence are not completed within 60 days as mandated by the Act and, at times, it
takes more than 2 years in disposing of these cases.

Therefore, there is a need to have separate courts for dealing with cases of domestic violence,
with women judges, as far as possible. Furthermore, all such proceedings should be done in-
camera so that the victim can disclose instances of domestic violence without any hesitation.
Cases registered under the PWDVA must also be separately numbered and the files of cases
filed under the PWDVA must not be open, even after the case is decided.

2. Coordination

The PWDVA and the Rules framed thereunder are mandated to appoint Service Providers,
Counsellors, Protection Officers; and to set up Shelter Homes for women, coordinate Medical
Facilities, Police Services, and to provide access to free legal aid through the Free Legal
Services Authorities, to protect and serve the victim. However, in most states, neither have
these functionaries been appointed, nor have the services been set up. Due to the lack of
coordination between the authorities, the victims are subject to further harassment by their
family members and in some cases, there are reports that victims are even murdered by their
family members AFTER approaching the court for relief under the Act. In a case in Delhi, for
example, the victim who approached the court for protection under the Act and was granted
protection by the Magistrate, was subjected to continued harassment and violence by her
husband. Despite the protection order, when she approached the police to report continuing
violence, the report was not written, and the police officer was very insensitive towards her
plight.

It is important to note here that there is very poor coordination between the functionaries and
the Service Providers that are handing cases of domestic violence. Until the matter reaches the
courts, these authorities do not coordinate with each other and, as a result, the victim is further
harassed. Therefore, it is very important to appoint these functionaries and to set up the
mandated structured under the Act. The details of these functionaries must be widely publicized
periodically in local languages so that the victims of domestic violence may approach them
when in need. Most importantly, proper coordination between these parties must be developed.
There could be an automatic mechanism of involvement of all such authorities of the Service
Providers in case a victim approaches any of these authorities/ Service Providers.

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Finally, any officer of the state government must be given responsibility to act as a focal point
in developing a system of coordination between all authorities under the Act. Such focal-point
officers must be equipped with adequate communication devices on a 24x7 basis and their
details must also be publicized so that there is easy and smooth coordination between them.

3. Gender Perspective Training

It has been noticed by lawyers in cases of domestic violence, across the country, that the
Magistrates and Functionaries dealing with cases under the PWDVA are insensitive towards
to the situation of the victim and are also ignorant of their rights. Gender perspective trainings
are required to change the patriarchal mind-set of judges, who often advise women to put up
with the violence and not complain. Thus, most Magistrates are led by their patriarchal views,
rather than by the law.

Therefore, effective gender-perspective training is highly necessary for the Police, Service
Providers, Medical facilities, Shelter Homes, Protection Officers, and especially for
Magistrates dealing with PWDV Act.

4. Periodic Reviews

A Periodic review of the activities of the functionaries under the PWDVA should be conducted.
A committee at the High Court level should be constituted, with a High Court Judge (who has
undergone gender sensitization training) as its chairperson, to review the administration of the
Act and to monitor its implementation at the state level. In such a committee, members from
civil society and women’s organizations should also be given adequate representation.
Furthermore, at least 50% of the members of the committee should be from the civil society
and at least 50% should be women members.

This monitoring committee should also review the functioning of all of the functionaries under
the PWDVA, including but not limited only to, the Protection Officer, Police, Service
Providers, Shelter Homes, and medical service providers. Every court dealing with domestic
violence cases must send monthly reports to the high court monitoring committee, giving
details of the cases under the PWDVA, and the orders passed there under. The High Court
monitoring committee, thus, can also monitor the quality of the orders passed by the courts.

5. Re-victimization of the victim

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The re-victimization of women facing domestic violence needs to be seriously investigated and
controlled. There should be a mechanism to monitor that there is no further victimization of
the victim, even after the case is decided. The police and other functionaries of the Act must
also ensure that the victim is not harassed or humiliated by the families of her in-laws and that
she lives in peace.

The police and the functionaries under the Act must submit periodic reports, once in every 3
months for at least 2 years to the concerned magistrate after the case has been decided, about
each case of domestic violence explaining the action taken by him/her on instances of
victimization/ re-victimization. In cases of non-compliance with the orders of the Magistrate,
the court must initiate proceedings Suo moto, under Section 31 of the PWDVA, against the
defaulters. Therefore:

a) Every Police Station should maintain a separate record register for domestic violence cases.

b) There should be a follow up conducted on each case of violence.

c) The police must record the action taken against the recurrence of violence, the re-
victimization of women, and the implementation of court orders.

6. Police

It has been seen in different states that the police are highly insensitive towards the victims of
domestic violence. At times, they don’t even file a Domestic Incident Report (DIR). Further,
when the court orders protection of the victim, the police fails to provide adequate protection
and support to the victims. Thus, the police are very insensitive towards the victim and there
are instances when the concerned police officer has failed to take any action against the
assailants of the victims and has brushed aside the cases of domestic violence as ‘personal and
a private matter of the family’.

In this context it is very important that the police are made sensitive to the cause of the victims
and that they are trained to deal with such cases. In every case of domestic violence brought to
the police station, a DIR must be recorded, and adequate protection must be given to such
victims forthwith. Such DIRs must be submitted before the appropriate court for further
direction immediately, which should not take more than 24 hours. In cases of non-compliance
of the court order and further victimization of the victim, the police must take appropriate action
against such assailants and provide adequate protection to the victim. The police must arrest

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such assailants and produce them before the appropriate court within 24 hours. The police must
also coordinate with other functionaries of the Act immediately for providing any further
assistance that the victim may need.

State level DGPs should also issue mandates by circulars on the role of the police under the
PWDV Act to all police personnel and monitor its strict compliance. The police must maintain
a separate record/ registers for complaints of domestic violence and must:

a) Follow-up cases referred from police station to POs, SPs

b) Take serious action against the recurrence of violence after filing application to court.

c) Give primary importance to protection of victim.

d) Monitor all cases of domestic violence at the district level and guide the police for its
effective implementation.

7. Service Providers

Although there is an explicit provision in the Act to appoint one or more NGOs in the district
as a Service Provider, there has been no attempt by most of the state governments to appoint
any service provider. In some states, the eligibility conditions of the service providers have
been made so strict that no NGO qualifies to be appointed as a service provider. Therefore, it
is highly necessary to relax the eligibility criteria and to appoint as many service providers in
every district as possible, so that the cases of domestic violence are properly taken care of. In
case a matter is referred or reported to the court or any other appropriate authority by an NGO/
individual, which has not been identified as a service provider, such cases should be dealt with
sensitivity and such an NGO/ individual must be recognized as a service provider for that
particular case.

It is also important that there is proper coordination between all functionaries of the Act, the
Service Provider, and even Legal Services Authorities so that if the victim approaches any of
these agencies, she can get the details of other functionaries immediately and she gets adequate
and proper advice/ services under the Act.

All such service providers should submit a monthly report to the High Court level monitoring
committee. On receiving such reports, the High Court committee may also investigate the

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functioning of these service providers and may recommend appropriately for continuation/
discontinuation of these service providers to the concerned authorities.

8. Legal Services

The role of legal counsellors requires more clarity. As of now, they are to conduct visit to
victim’s house, prepare DIRs and file them in court, and to give legal counselling. However, if
the victim wants legal aid for conduct of cases, she must approach the legal service authority.
Thus, victims have to narrate their stories to several persons and has to engage another advocate
if the case is to be appealed against or if she has to defend an appeal in the Court. There should
be a discussion on whether the legal counsellor can also conduct the case, or assist the victim
throughout the case to secure justice.

It is therefore very important to bring together all the functionaries under the Act at one place
and also in complete coordination so that the victim has not to run pillar to post for availing
their services. It is also important to set up legal services authorities at least in every district
and they should provide free services to the victim. It should be ensured that such legal
counsellor does not charge any fee from the victims for handling their cases. If any such
incidents of charging fees, in any form, are reported, then strict action must be initiated against
such advocate. It should be ensured, as far as possible, that a female advocate in these legal
services authorities handles the cases of domestic violence.

9. Maintenance

As of now, maintenance is paid only to the victim and to her children who are below the age
of 18 years. If the children are above the age of 18 years but still pursuing their education and
are not employed, the male child is not entitled for maintenance. However, in case of a girl
child, maintenance is paid until she is married. It must be ensured that the male child is also
entitled for maintenance if he is staying with his mother, till he attains 25 years of age, or till
he gets employed, whichever comes the first.

It is also important to note that the judges grant meagre amounts of maintenance, even though
the paying capacity of the husband is high. While deciding the maintenance amount, judges
usually tend to agree on the expenses of the husband and decide on the maintenance amount
based on the available amount in hand, after deducting all the usual monthly expenses of the
husband. As a result, husbands usually inflate their expenses and try to fix the maintenance at
bare minimum. It is therefore very important to understand that a woman who is subject to

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domestic violence and is living separately from her husband, her expenses should also be
properly taken care of.

10. Residence and Protection

It is seen that the courts are hesitant in passing residence orders. There are hardly any cases
where residence orders have been passed, despite the fact that the same was prayed for. Orders
for re-entry of the victim, once she has been ousted from the shared household, have not been
passed by any courts in India. This shows insensitivity on the part of the judges towards the
cause of the victim. Judges usually tend to accept the argument of the respondents that the
property where she was living earlier was not in the name of the culprit and the same is owned
by some other family member. For this reason, judges also tend not to pass an order for re-
entry of the woman into a shared household.

In any case where the victim has left on her own, or where she has been ousted by the
respondents, the court must take into consideration where the woman was living last. The
ownership of such property should not be a concern while deciding such a residence order. If
the victim was living in a house prior to her removal from that household, the residence order
must be passed to place her in the same household where she was living earlier.

In cases where the victim was not ousted but was forced to leave the house due to the situational
violence, the court must assume that she has been deserted by the respondents and must develop
the concept of constructive desertion, where the court assumes that she has been forced to leave
the house due to the respondent’s unacceptable behaviour.

While deciding on the residence of the victim, in every case the court must assume that the
victim was living in the household for which she is asking for the residence order. If the obverse
is required to be proven, the onus must lie on the respondents.

If the respondent lives in a rented accommodation/ in an accommodation that is not owned by

him, or frequently changes his place of residence, then the court should also pass an appropriate
residence order in favour of the victim to allow her to stay in the parental home of the
respondent, or, she should be allowed to stay in another rented accommodation at the expense
of the respondent. The court must also ensure that the residence order is implemented and if
necessary, the services of the district court in other districts/ states should also be taken by such
magistrates to ensure that the residence order is implemented properly. If a residence order is
passed for having a rented accommodation at the expense of the respondent, the court shall

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also ensure that the rent of the first 6 months has been deposited by the respondent in the bank,
in the name of the victim and, every month, the rent is provided to the victim before the 10th
day of the month of the Gregorian calendar.

When a residence order is passed, the court must simultaneously pass a protection order in
every case, and the police officer, preferably a female, must visit the victim in plain clothes
and provide adequate protection to her.

The protection officer must also be made responsible for proper rehabilitation of the victim.
Such a protection officer, and the concerned police officer, must submit its periodic report to
the concerned judge. Such report must be made at least once in every 3 months positively, for
at least 2 years from the date of such residence order. The wellbeing of the victim is the primary
concern of the PWDV Act, and this must be upheld by these functionaries.

11. Compensation and damages

The mandate of the PWDVA is not only to protect women from domestic violence, but also to
ensure that she is adequately compensated for the injuries, including mental torture and
emotional distress, caused by the acts of domestic violence committed by the respondents. In
this context it is important that the judges are sensitized to grant adequate compensation and
damages to the victims of domestic violence. It is seen in most cases that even in severe and
prolonged cases of domestic violence, the victim is not adequately compensated, or the amount
compensation is paltry. In every case of domestic violence, the judges must take into
consideration the instances of domestic violence, including mental and emotional agony of the
victim. The compensation amount must be proportionate to the domestic violence incurred.
The income and the property of the respondent (including the family members living in the
same house) must also be taken into consideration while deciding the compensation amount.
The compensation amount must not be less than 50% of the respondent’s salary in the last five
years.

If the proceeding in the appeal is delayed beyond the stipulated 60-day time frame, and it is
found that the adjournment of the delay is because of the appellant, then the court may direct
the appellant to pay compensation to the victim for every such adjournment.

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12. Criminal Liability of the respondent

Criminal Liability means liability that arises out of breaking a law or committing a criminal
act. According to the Jurisprudence Theories and Theories of Punishment, one obeys the law
from the fear of punishment. According to the act, Sec 31 provides penalty for breach of
punishment of protection order by respondent - which is Rs. 20,000 fine, up to 1-year
imprisonment or both. The concept of deterrence has two key assumptions: the first is that
specific punishments imposed on offenders will “deter” or prevent them from committing
further crimes; the second is that fear of punishment will prevent others from committing
similar crimes. Retributive justice is a theory of justice which holds that the best response to a
crime is a proportionate punishment, inflicted for its own sake rather than to serve an extrinsic
social purpose, such as deterrence or rehabilitation of the offender. Retributivists hold that
when an offender breaks the law, justice requires that the criminal suffer in return.

But this act lacks imposing criminal liability on the respondent for the act committing violence
on women. Since the aim of the act is to protect women from domestic violence there should
be some criminal liability imposed so that there is justice. There are many offenders who get
away with the offence by paying penalty if they breach the protection order, but there should
be criminal liability for performing the act of violence itself. It should be considered that
punishment for doing the act of domestic violence is primary and there should be strict liability
imposed for the violation of the act and not only protection order. There should be strict liability
based on type of domestic violence inflicted.

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BIBLIOGRAPHY

BOOKS REFFERED:

• Kavitha, V. (20142). Spousal domestic violence of married women in India Journal of

Sociology and Social Anthropology, 3(1), 7-13.

• Rapp, D., Zoch, B., Khan, M. M. H., Pollmann, T., & Krämer, A. (2012). Association
between gap in spousal education and domestic violence in India and Bangladesh. BMC
public health, 12(1), 1.

• Stith, S. M., Green, N. M., Smith, D. B., & Ward, D. B. (2008). Marital satisfaction and
marital discord as risk markers for intimate partner violence: A meta-analytic review.
Journal of Family Violence, 23(3), 149-160.

• Mitra, S. (2006). Domestic Violence along with its Socio-cultural Determinants Among
Pregnant Women Attending MCH Clinic of a Sub divisional Hospital in West Bengal.
Indian Journal of Community Medicine, 31(4), 267-69.

WEBSITES REFFERED:

• Aparna Das, “Domestic Violence Act, 2005-A Bane Or A Boon?”, Legal Services
India.com.

• http://hrf.net.in/status-of-women-with-reference-to-gender-based-violence-in
tamilnadu/ Article Title Status of women with reference to gender based violence in
Tamil Nadu Date Accessed June 26, 2017

• http://dwcdkar.gov.in/index.php?option=com_content&id=102%3Aprotection-of-
women-from domestic-violence-act-2005&catid=108%3Awomen-welfare&lang=en,
Department of Women and Child Development, Karnataka, Protection of Women from
Domestic violence Act, 2005 Date Accessed June 27, 2017

• https://www.telegraphindia.com/1140828/jsp/jharkhand/story_18770462.jsp, The
Telegraph, Domestic Violence Act scores zero Date Accessed June 26, 2017

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STATUTES REFFERED:

• PROTECTION OF WOMEN FROM DOMESTIC VIOLENCE ACT, 2005.

• CONSTITUTION OF INDIA, 1950.
• INDIAN PENAL CODE, 1860
• CODE OF CRIMINAL PROCEDURE, 1973
• PROTECTION AGAINST VIOLENCE ON WOMEN ACT, 1994.
• CEDAW, 1979.

REPORTS AND SURVEYS

• The National Crime Report of 1991.

• The National Family Health Survey, 2000.

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