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THE DV ACT 2005: ACHIEVEMENTS AND CHALLENGES

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About the Author: Kirti Mahal is a Student of the Vivekananda  Institute of Professional Studies, New Delhi.

INTRODUCTION

Domestic violence is a harsh reality of Indian society which is deeply rooted in a patriarchal nature where women become easy targets of abuse and discrimination. Historically, wives were considered inferior to husbands and were subject to mistreatment. It is believed that the person feels most protected in the four walls of their home. It becomes horrendous when cruelties are inflicted on her by her family members, especially by her husband in her own home. In 2005, India took a big step by following the guidelines of CEDAW and started the formation of the Domestic Violence Act. Before this, women could only find relief in Section 498A of the Indian Penal Code. 

The act is based on the fundamental rights and Directive Principles guaranteed by the Indian constitution. Its goal is to provide for better protection of the rights of women guaranteed under the Constitution who are victims of violence occurring within the family.[1]

Even within, 20 years of passing this legislation there are still so many women who are suffering from this. The need of the hour is to make this law strong and bring continuous amendments to cope with the current dynamics. According to the crime report of 2018, a woman is subjected to domestic violence every 4.4 minutes and people still consider it as a private matter.[2] Domestic violence violates women’s right to equality[3] and discrimination on the grounds of sex[4] and right to life and personal liberty[5] which further made it crucial to pass legislation on this.

THE DOMESTIC VIOLENCE ACT 2005

The act defines a distressed person as a woman who is in a domestic relationship and violence is inflicted on her.[6] Domestic violence can happen in various forms such as, physical, emotional, sexual, and economic. 

  • Physical violence includes pushing, throwing, kicking, etc.
  • Mental abuse includes harassment and threats.
  • Verbal abuse includes humiliation, ridicule for not having a male child, etc.
  • Sexual abuse humiliates, degrades, or violates the dignity of women.
  • Economic abuse includes depriving all or any economic resources to which the victim is entitled.[7]

This act also contains provisions for the person who informs about the acts of domestic violence to the concerned protection officer and the person. The person giving the information in good faith will have no liability under criminal and civil.[8] It is the duty of the public officer, service provider, and magistrate to inform the aggrieved person about her right to make an application for obtaining relief, the Right to complain under Section 498A, and her right to get free legal services.[9]

Some Notable Judgements:

  1. In the case of D. Velusamy v D. Patchaiammal[10], the apex court defined a Domestic relationship as a relationship that should be like a marriage, whether a formal marriage ceremony has occurred. By including live-in relationships, the court ensured that women in such relationships have legal protection, if they have the characteristics of a marriage,
  2. In the case of Hiral P. Harsora v Kusum Harsora[11], In this case, the court struck down the words adult male and allowed women to fill cases against the female members. It broadened the scope of protection and recognized that domestic violence isn’t gender-specific.

FEATURES OF THE ACT

  1. The Primary objective of this act is to provide compensation and support to the woman. It is a civil law and is victim-driven. The relief guaranteed under this act can only be initiated on the wishes of the woman, contrary to criminal law where the goal is to punish and the enforcement of laws depends upon the state and the police.
  2. The Protection under this act also extends to mothers, sisters, daughters, and live-in partners.
  3. The act provides for stopping violence and orders that offer emergency relief to stop the violence immediately. It is an additional law that allows women to enforce other laws.
  4. The government must publicize this act through public media and the government has to provide awareness and training programs on this issue.[12]
  5. The magistrate at any stage of the proceedings can order the parties to go for counselling. The women’s groups are critical to this as it is seen as a tool for preserving marriage and placing women back in a violent environment.
  6. For the effective implementation of this act, access to both Protection officers and Service Providers, i.e., non-governmental organizations that aim to provide essential support to women, such as shelter homes and medical facilities, is required.[13]

RELIEFS UNDER THE PROTECTION OF WOMEN FROM THE DOMESTIC VIOLENCE ACT

 The Magistrate can pass protection orders which will make sure that the abuser isn’t able to commit any future act of violence. To make the protection orders more effective, the entry of the abuser can be stopped at the work of place of the women and in the school of the child.[14] The court can order that the women cannot be evicted from the shared household. The court can also make sure that the accused removed himself from the household or make some arrangements for the victim to live separately. Also, the family of the accused can be restrained from the household.[15] The victim can also get Monetary relief[16] and Custody orders.[17] The victim can also claim damages for all the pain she has suffered. The proceedings. The proceedings can be held on camera if the magistrate considers if either party desires[18] the court can also pass interim orders to prevent violence before the final order.

ISSUES OF THE PROTECTION OF WOMEN FROM THE DOMESTIC VIOLENCE ACT, 2005

The issue of domestic violence has been recognized and even legislation has been made but still, there’s a gap in the enforcement of the act. Even after 20 years of coming off this act, the case of Domestic violence is still rising. The government has to publicize this and make people aware of their rights under this act but limited progress has been observed. 

  • There is a lack of shelter homes for the victims and there’s no platform available where the information on the shelter homes is available.
  • The service providers only exist for a name and don’t do much for the protection of women. Imagine the courage the victim gathered to ask for help from the service provider but in the end, they get no help.
  • Another issue is the handling of cases of domestic violence by police officers. The urge to say compromise is built into their system. Most of the women who speak up are sent back to their homes and told to settle down their family matters on their own.
  • The infrastructure provided for victims in India is poor and the law is asking for appropriate amendments to adjust to the current times.
  • The act doesn’t mention the disabled women. The idea of disability increased her vulnerability but still no attention was given to her.[19]
  • The legislation adopts a gender-specific approach that excludes men, and concerns have been raised for the male victims who experienced abuse. The provisions of this act, are exploited for personal gain. Fake cases against husbands and their families have been filed. The Calcutta High Court has coined this phenomenon as legal terrorism. The act is misused as a means of revenge, and personal gain thereby destroying the purpose of this act along with Section 498A. The misuse of this act has led to a strain on the legal system and contributed to the backlog of cases. This leaves the genuine victims without timely support and redressal.[20]

RECOMMENDATIONS FOR IMPROVEMENT

  1. The government should spend money on culturally sensitive awareness programs to educate people.
  2. Establish more shelter homes and make centralized programs where information about them is available.
  3. Conduct training for police officers to ensure empathetic handling of the cases.
  4. Inclusive provisions should be made to cater to the needs of disabled women.
  5. There should be stricter penalties for filing false cases and misusing this act.

CONCLUSION

The UN Women called Domestic Violence a Shadow Pandemic, and according to their report, an estimated 243 million women ages 15 to 49 worldwide endured violence by an intimate partner between 2019 and 2020.[21] In India, despite having legislation against domestic violence there’s a continuance increase in the number of sufferings of women. It is very important to recognize that the act is misused by filing fake cases but it is equally important to recognize that this legislation has helped many women to break free from their toxic households by providing them with protection and support.

The objectives of this act will only be achieved when there is a collaboration between the government, judiciary, law enforcement, and the common people. By Fixing the problems of awareness, infrastructure, and enforcement India will move closer to making a safe and dignified home for every woman. 

References:

[1] Protection of Women from Domestic Violence Act, 2005

[2] ‘Addressing domestic violence: A forgotten agenda while locking India down’ (Observer Research Foundation, 08 April 2020) <https://www.orfonline.org/expert-speak/addressing-domestic-violence-a-forgotten-agenda-while-locking-india-down-64301> accessed 19 January 2025

[3] Constitution of India 1950, art 14

[4] Constitution of India 1950, art 15

[5] Constitution of India 1950, art 21

[6] Protection of Women from Domestic Violence Act 2005, s 2(a)

[7] Protection of Women from Domestic Violence Act 2005, s 3

[8] Protection of Women from Domestic Violence Act 2005, s 4

[9] Protection of Women from Domestic Violence Act 2005, s 5

[10] D. Velusamy v D. Patchaiammal (2010) 10 SCC 469

[11] Hiral P. Harsora v Kusum Narottamdas Harsora and Ors (2016) 10 SCC 165

[12] Protection of Women from Domestic Violence Act 2005, s 11

[13]  Dr. Balbinder Kumar and Dinesh Verma, ‘The Protection of Women from Domestic Violence Act, 2005: A Study’ (2022) 4(2) Indian Journal of Law and Legal Research <https://www.ijllr.com/post/the-protection-of-women-from-domestic-violence-act-2005-a-study>  accessed 19 January 2025

[14] Protection of Women from Domestic Violence Act 2005, s 18

[15] Protection of Women from Domestic Violence Act 2005, s 19

[16] Protection of Women from Domestic Violence Act 2005, s 20

[17] Protection of Women from Domestic Violence Act 2005, s 21

[18] Protection of Women from Domestic Violence Act, 2005, s 16

[19] Shruti Dahiya, ‘Missing Case of Women with Disability and Domestic Violence’ (2022) 4(3) Indian Journal of Law and Legal Research <https://www.ijllr.com/post/missing-case-of-women-with-disability-and-domestic-violence> accessed 19 January 2025

[20] Tanya Elizabeth Mathew, ‘Critical Analysis of the Scope of Economic Misuse of the Domestic Violence Act, 2005 in India’ (2024) 5(6) Indian Journal of Law and Legal Research <https://www.ijllr.com/post/critical-analysis-of-the-scope-of-economic-misuse-of-the-domestic-violence-act-2005-in-india> accessed 19 January 2025

[21] Phumzile Mlambo Ngcuka, ‘Violence against women and girls: the shadow pandemic’ (UN Women, 6 April 2020) <https://www.unwomen.org/en/news/stories/2020/4/statement-ed-phumzile-violence-against-women-during-pandemic> accessed 19 January 2025