Domestic violence continues to be a human rights issue and a problem of public health and safety, with adverse effects on women’s physical, mental, and reproductive health. In India, nearly 30 percent of women have experienced domestic violence at least once since the age of 15.
The Protection of Women from Domestic Violence Act, 2005 (PWDVA), the Dowry Prohibition Act, and the Indian Penal Code, 1860 (IPC) have therefore been designed to protect women from domestic violence. This, however, is not to say that they are without gaps.
Therefore, This report aims to propose amendments to the Protection of Women Against Domestic Violence Act, 2005 and thereby enhance legal protections for women to prevent injustices in domestic violence cases. The proposed amendments are based on a legal analysis of existing precedents and considerations of feasibility.
1. Amendment to Section 3: Definition of domestic violence
a. Pratibha Rani v. Suraj Kumar (SC, 1985):
In 1982, Pratibha Rani, amongst other allegations, stated that her husband harassed, teased and beat her to extract dowry. The Supreme Court, at the time, excluded other forms such as emotional and economic abuse, and harassment from the scope of domestic violence.
- In clause (ii):
“sexual abuse” includes any non-consensual act or conduct of sexual nature that abuses, humiliates, degrades or otherwise violates the dignity of woman within a marriage or intimate relationship
Split clause (iii), thereby inserting a new clause (v) which makes “emotional abuse” a distinct form of domestic violence and recognizes the psychological impact and harm caused through it.
- In clause (v):
“emotional abuse” includes any non-physical behaviours with the intention of controlling, isolating and coercing a woman within a marriage or intimate relationship through emotional manipulation, intimidation or control, irrespective of the success or failure of the accused in achieving the desired conduct.
Legal Analysis: Recognises the different forms of abuse that women can experience in a domestic setting. Expanding the scope to recognise emotional abuse independently helps acknowledge psychological and emotional harm inflicted on victims.
Feasibility: Further clarification may be required to more clearly define non-physical behaviours that fall under a clear criteria of emotional abuse. The standard of proof for emotional abuse should not be contingent on successfully achieving the desired conduct, but rather on the intention and impact.
2. Amendment to Section 4: Duties of police officers, service providers and Magistrate
Include that health care providers must offer referrals to appropriately trained domestic violence service agencies to ensure they are made aware of and given access to services they can opt to use.
Legal Analysis: Given that for some domestic violence victims, notifying authorities invokes retribution by their batterers, and that many victims would have no choice but to withhold information from their healthcare providers or not seek medical attention entirely, it is important to include mandatory referral but not reporting.
For example, the American state of Pennsylvania states in ‘§5106. Failure to report injuries by firearm or criminal act’ that failure to report such injuries is not an offense if:
(1) The victim is an adult and has suffered bodily injury.
(2) The injury was inflicted by an individual who:
(i) is the current or former spouse of the victim;
(ii) is a current or former sexual or intimate partner of the victim;
(iii) shares biological parenthood with the victim; or
(iv) is or has been living as a spouse of the victim.
(3) The victim has been informed:
(i) of the duty to report under subsection (a)(2); and
(ii) that the report under subsection (a)(2) cannot be made without the victim’s consent.
(4) The victim does not consent to the report under subsection (a)(2).
(5) The victim has been provided with a referral to the appropriate victim service agency such as a domestic violence or sexual assault program.
3. Amendment to Section 18: Strengthening Protection orders
Introduce provisions to more effectively enforce the clauses (a) through (g) through the use of technology-enabled monitoring systems that warrant compliance with protection orders while safeguarding privacy rights.
Legal Analysis: Enhances the enforceability of protection orders and provides an additional tool for monitoring and addressing violations. However, the integration must be guided by specific guidelines and follow international standards of privacy protection for all parties involved. The data collection procedure must be made secure to prevent unauthorized access and misuse.
Pros: Enhanced enforceability, timely response, increased accountability, possible deterrent
Cons: Privacy concerns, potential for misuse, cost implications, infrastructure and resource access
Feasibility: The integration of technology-enabled monitoring systems would require infrastructural development and investment in resources. Further, stringent security systems would need to be put in place to protect the data and privacy of both the case and parties involved.
4. Amendment to Section 18:
- Insertion of Section 18A: Penalties
18A. Penalties: The Magistrate may, to provide justice and increased protection for the aggrieved, assign penalties beyond protection measures for the offender to ensure a more deterrent punishment taking into consideration severity and repetition of the offense(s) and vulnerability of the aggrieved.
Legal Analysis: Promotes accountability and ensures consequences for offenders are just and appropriate as per the gravity of the offense(s).
Feasibility: In order to ensure consistency in the application of this section, the range of penalties must be specified in detail in order to avoid arbitrary or excessive punishment.
5. Amendment to Section 18:
- Insertion of Section 18B: Emergency Protection Orders
18B. Emergency Protection Orders: The Magistrate shall have the power to issue emergency protection orders ex-parte, in urgent cases where there is a likelihood of an immediate risk of harm or violence to the aggrieved or her child
Legal Analysis: Provides an expedited mechanism at a time when a hearing cannot be commenced or at the time of imminent danger.
Feasibility: Guidelines and criteria must be established in detail in order to prevent the potential misuse of issuing ex-parte orders and ensuring genuine emergent cases receive appropriate and timely aid.
(a) The definition of abuse that can lead to needing an order of protection should be broad enough to take into the realities of domestic violence. For example, the American state of Illinois’s definition of “abuse” reads: “Abuse” means physical abuse, harassment, intimidation of a dependent, interference with personal liberty or willful deprivation but does not include reasonable direction of a minor child by a parent or person in loco parentis.
(b) Given the dynamics of domestic violence, the court should consider evidence of acts of abuse regardless of their proximity in time to the filing of the petition.
For example, in the New Hampshire case of Tosta vs Bullis, the plaintiff alleged that the defendant struck her during an argument on June 18, 2006, causing her to bleed, and that she contacted the police to report the assault, but no charges were filed. The plaintiff, however, did not file for a protection order until nine months after this event. During that period, she continued to live with the defendant with no further violence occurring.
The plaintiff, in her explanation as to why she needed a protection order stated how surprised and scared she was that her husband had left the home suddenly with no explanation (i.e. was he planning to do something terrible to her and her children or leaving for another reason) and how she could not be safe without a protective order
The Supreme Court of New Hampshire denied the plaintiff a domestic violence protective order. In denying the order, the court noted that:
(i) While the plaintiff contacted the police to report the assault, no charges were filed.
(ii) The court stated: “Nevertheless they continued to live together without any further instances of physical violence until March 2007.”
(iii) There was a nine-month gap period between when the abusive events occurred and her filing for a protective order and the requirement for “ongoing” abuse
(c) To balance the petitioner’s need for safety against both a respondents need for a fair process and of preventing, identifying and taking necessary action in case of petitioners falsely accusing respondents of committing abuse
(i) Having the judge inform both parties on: laws of perjury, possibility of jail time for lying
(ii) The Emergency Order of Protection should include civil liability for the respondent’s reasonable attorney fees and court costs if the petitioner is proven to have provided false material or statements of abuse during the court testimony knowing the statements were not true.
(iii) Procedures should be in place to seal the public records of the petition and ex-parte emergency order of protection if the respondent provides the necessary evidence proving allegations of abuse were false and statutory abuse did not occur.
(iv) Before ruling on an ex parte order of protection case, a computer search should be conducted on prior orders of protection or charges of domestic violence against the petitioner or the respondent, within the limitations of the applicable rules of evidence, to provide relevant information for the judge’s consideration. Judges must exercise discretion in considering the relevance and weight of such information in accordance with legal standards, and adhere to the principles of fairness while assessing prior history of protection orders, convictions.
6. Amendment to Section 18:
- Insertion of Section 18C: Protection of Witnesses
Currently, the Domestic Violence Act of 2005 in India does not have specific provisions that address witness protection measures, and focuses primarily on protection orders and remedies for victims. Hence, it is important for witness protection measures to be explicitly mentioned in the Act.
18C. Protection of Witnesses: The court shall take necessary actions to protect the safety and identity of witnesses, including victims and survivors, during and after court proceedings until a danger is no longer identified. The court may utilise in-camera hearings, technology-enabled monitoring systems or other protection orders mentioned in section 18 to ensure their protection.
In 1992, Bhanwari Devi, a social worker in Rajasthan, faced harassment and sexual assault after attempting to intervene and stop the child marriage of a nine-month-old girl to an infant. Her four children were threatened, her husband was attacked and she was allegedly gang raped.
Legal Analysis: Provides the necessary framework that acknowledges the importance of witness protection, to ensure witnesses are not discouraged from speaking out in fear of danger to their safety or identity.
Feasibility: Logistic and practicality considerations may arise where it may become difficult to maintain anonymity and confidentiality of witnesses throughout the legal process. Ensuring safety may require ensuring availability of necessary resources.
7. Amendment to Section 19: Residence orders
Expand the scope of right to residence by including additional safe alternate accommodation like shelter homes, transitional housing or community-based housing.
Legal Analysis: Recognizes the need for diverse options based on individual circumstances and adequate availability of suitable housing options after leaving an abusive relationship.
Feasibility: Establishing and maintaining a sufficient number of housing options may require significant investment along with regular and effective coordination among relevant stakeholders.
8. Amendment to Section 30: Protection Officers and members of service providers to be public servants
Amend Section 30 to mandate regular training programs for protection officers and members of service providers, including judges and other judicial officials to improve their understanding of domestic violence and its associated issues to eliminate biases and thereby ensure fair treatment and justice for the aggrieved.
Legal Analysis: Recognises the need for professionals to have a comprehensive understanding of the dynamics of domestic violence to effectively support survivors.
Feasibility: Regular training programmes can be implemented with proper planning and effective allocation of resources towards capacity building.
Thus, the PWDVA, 2005 is a vital piece of legislation from the feminist perspective of law, and while it has gone a long way towards protecting women in a domestic setup, there is no reason for it to simply stop here.