LAST OCTOBER, commemorating twenty years of the enactment of the Protection of Women from Domestic Violence Act, 2005 (‘PWDVA’), we kickstarted a special year-long series intended as a ‘living archive’ of the law, one that reflected on not only those who shaped it, but also the implementers. Activists and lawyers who have mechanised, litigated and animated the legislation have seen not only what the PWDVA changed in the legal regime surrounding protection of women, but also who benefitted from it, under what circumstances, and perhaps, most valuably, what aspects of it remained under-explored.
This month, activist Hasina Khan, founder of the Bebaak Collective and member of the Forum Against Oppression of Women, reflects on the strategies through which Muslim women claimed protection under the Act, the role of feminist organisations in making the State accountable, and the contemporary legal and political developments that threaten the emancipatory spirit of the legislation.
In this Act, the concept of domestic space was kept very broad. For the women’s movement, this was a very progressive and feminist step.
Asmita Basu: You have been working on violence against women for decades. What was it like in the earlier days when you started, and what is it like today?
Hasina Khan: When the PWDVA was being formed, its ideas were being shared and discussions were taking place all over India. Ms. Indira Jaising was very active about it. A lot of discussions took place in Bombay and Delhi. I was a part of those discussions.
When we got the idea that we would be putting domestic violence in a broad perspective, it meant that the protections would extend to people living within domestic support structures, including youth, disabled people, older people, women in families, and women in marriage relationships. In this Act, the concept of domestic space was kept very broad. In a domestic setting, most people are those who are under someone’s protection, and they need protection in their respective situations. For the women’s movement, this was a very progressive and feminist step.
Before 2005, a woman facing violence within her own home had very limited legal options in India. If her husband physically abused her, she could invoke Section 498A of the Indian Penal Code, 1860 (‘IPC’) but this provision was confined only to cruelty within marriage, initiated only criminal proceedings, and largely ignored many forms of abuse such as emotional, financial, and verbal. Women in live-in relationships had virtually no protection at all. This was the legal vacuum that the PWDVA was enacted to fill.
The need for a separate domestic violence law was also linked to India’s promises at the international level. The Vienna Declaration (1993) and the Beijing Declaration (1995) both said that domestic violence is a human rights issue and a serious problem for society. The United Nations Committee on Convention on the Elimination of All Forms of Discrimination Against Women (‘CEDAW’) also asked countries to protect women from violence inside the family.
Since India had signed CEDAW, it was expected to change its laws according to these promises. The existing laws, which were mostly criminal laws, were not enough. A stronger and wider civil law was needed to give women quick protection and relief.
The draft was accepted by the Congress government. The State understood the gender perspective, the youth perspective, and the perspective of married and non-married women alike. That intention of the State helped a lot and this law came into effect. The State established a whole structure with instructions, budget, guidelines.
I remember 2005 very clearly. We had campaigned so much. People talked so much about it, that a good law has come for women, that domestic violence is being seen from a broad perspective. I remember that the Khairlanji massacre also happened in 2005. In Maharashtra there was a complete shutdown. And the day it was closed, we had planned a pandal on the road in a Muslim area where we work. We took a mic, made an umbrella, and took the guidelines of the PWDVA. It was very new, but we talked to people on the streets and got a very good response, especially from women.
I remember we used to make big posters, announce, take speakers, talk to people, share information. It was very useful. I mean, meeting with the service provider every time, meeting with the protection officer, if the police did not support the protection officer or service provider, then meeting with the commissioner. See, this is a big role of the State.
Many men challenged us that when women are divorced, how can they stay at home? How can they ask for maintenance? We said no, this act is a secular law for everyone, for Muslims and for women. Our argument was clear. Whether or not there is a divorce, that woman cannot be taken out of the house. Because if there is any kind of violence happening to her, then the one who does the violence will go out, not the one who tolerates the violence.
For Muslim women coming to us, whenever a woman said her husband was going to divorce her or had already divorced her, we would tell her: act as if you have not heard it. Go to the police station and say that you are being threatened with eviction from the house. Say it directly. Don’t talk about divorce. Say that you are being thrown out of the house.
In the police station, the man would be called. He would say, I have given the divorce. We would argue that this is a way to get her out of the house, and this law has been made for exactly this. The police would scold him, and the man would back down. These were the strategies how Muslim women could get protection under the PWDVA. For Muslim women, this Act was very beneficial.
PWDVA has also been very useful for the youth, especially young women in whose houses their choices and rights were being violated. Feminist organisations that were sensitive to this, that believed that parents could also be violent with their children treating them as their property, used this Act very well. Many women’s organisations, however, kept this Act connected only with marriage and not with violence by parents against youth.
Since the last few years there has been no involvement of the State, no meetings, no discussions. Now the Act has been made, so we go to court, we go to the magistrate. And there are a lot of limitations. When will the court’s decision come? What will the decision be? The woman carries this burden. PWDVA, from all the Act and all the Bills, is a more supportive Act. But it has become difficult now.
Many times when a woman goes to the police station wanting to file under the PWDVA, the police don’t even apply it. Many police don’t even know about the PWDVA. This whole gap has increased so much. The police don’t know what the law is regarding gender rights and women’s rights. There is no training, no meetings with administration, no meetings with civil society. A place like the Ministry where we used to go every year, every month. Now, we have gone once or twice in five years.
In Tata Institute of Social Sciences, there used to be thousands of meetings on domestic violence. Now there are no meetings, no discussions. A silence has come in this era even from the State’s side. Cases that should be decided within ninety days, those ninety days are gone. A hundred and twenty days, two hundred days – those timelines are not being followed anymore.
Since the last few years there has been no involvement of the State, no meetings, no discussions. Now the Act has been made, so we go to court, we go to the magistrate, and there are a lot of limitations.
Asmita Basu: Forum against Oppression of Women had been working on the idea of gender-just laws. There were also people saying don’t make more laws, use what already exists, use the remedies in civil law, in criminal law. Can you tell us a little about that environment, and in that context, how did the PWDVA fit in?
Hasina Khan: Gender-just laws were ideas. It was a dream that if a law is made, it should be made like this. And to implement that dream, when the Law Commission sat three times, those ideas were also there. In fact, many of the things we were asking for, we got to a great extent in the PWDVA.
Forum’s work on gender-just laws, which began in 1995, was not only about violence. It was also about civil rights, property rights, maintenance, the right to residence, and the rights of people in live-in relationships including, importantly, from an LGBT perspective, questions of who is vulnerable, who looks after the household, what the nature of the partnership is. These were being discussed even then. PWDVA addressed many of these concerns.
For example, from the perspective of the queer and trans community, the idea that if an adult talks about their choice and rights, and a family violates that, the State should give protection is already in the Act. In the groundbreaking Justice K.S. Puttaswamy v. Union of India (2017), the Supreme Court made a significant ruling on the right to privacy. The Court acknowledged that the right to privacy is an integral part of the right to life, equality, and fundamental freedoms enshrined in the Constitution. This encompasses the right to engage in intimate relationships of one’s choosing, as well as the right to sexual orientation and gender identity.
Many young women, who are adults, have been given help through this Act. We have taken them out of the house with the help of this Act, or made a separate place for them to stay, or by trying to stop the violence against them, made the State accountable. This has happened because of the PWDVA.
And when the Law Commission met in 2017, the forum recommended removing the notice period of one month under the Special Marriage Act, 1954. There were also serious concerns about what was happening to young people who registered for marriage. On the date of the marriage, they were nowhere to be seen. Their numbers were low. Where did those registered young people go? What was their status? These things have never come out. We can only guess how much family control was involved, how much the State was complicit over many years.
Around 2017, the Forum also took initiative on the question of cruelty specifically opposing an attempt to use a two-hundred-year-old act to bring in criminalisation for extramarital affairs. Forum, along with eighteen to nineteen organisations, petitioned against this. Our argument was that if there is an extramarital affair, either party has the right to seek divorce on the ground of cruelty and that provision already exists. But to criminalise it is wrong. This pushes towards even narrower thinking about women. The extramarital relationship of a man is known by everyone in his family, including his wife. But for a woman in an extramarital relationship, we have to look at her vulnerability, her sexual rights. We opposed this and went to court. The court agreed that it should not be criminalised. We won that case.
After that came the attempt to make Section 498A of the Indian Penal Code, 1860 gender-neutral. A woman named Swati* went to court saying her husband had filed a 498A against her and the police had supported it. The State took the position that women are also wrong, women also commit violence, and pushed for an amendment to make 498A applicable to both parties. This went to the Supreme Court. The Forum, along with eighteen women’s organisations, intervened. Our argument had four parts.
First, 498A came from a very difficult historical movement. For the first time in this country, violence against women in marriage was recognised as violence. You cannot forget its historical background, you cannot remove it. Second, women are the most vulnerable. They face violence and discrimination in different ways, and the law to stop that violence is Section 498A. Third, if any person feels unsafe in their marriage, the grounds of divorce are available to them, but using 498A against women, with State support, is very wrong. Fourth, organisations doing counselling at the grassroots, such as AALI, AASWA, Special Centre for Women and Children, SWAYAM, and many others, brought out their data. Out of every hundred women who came with cases related to violence or cruelty, only three to four cases were filed under Section 498A. Those cases where violence was very bad, where the person should be sent to jail, only three, four, or five out of a hundred.
Three or four organisations favouring men also came to court saying 498A was being misused. We showed through data that misuse had not happened. If misuse had happened, sixty, seventy, eighty out of a hundred cases would have gone through. The reality is different.
What does happen is what I would call misguiding, not misuse. A woman goes to a lawyer and says her husband does not look after her, does not take responsibility. The lawyer says, file a 498A. That is a misguide. He should not have done that. Or the police file a 498A without the woman even knowing. Months later, when the court letter comes, she gets scared and says when did I say to file this case? The State calls this misuse. But the language of misuse is very important to examine. It is not misuse, it is misguiding.
The problem with the State is the impulse to make everything gender-neutral, to criminalise everything. The thinking that if a man is wrong, women are also wrong, that the more men are punished, the more women are punished, is not a reformist thought at all. We won that case too. Section 498A was saved from both gender-neutralisation and further criminalisation.
When states like Gujarat or Uttarakhand bring in provisions under the Uniform Civil Code that ask parents to monitor adult children’s choices, they run directly in contradiction to the spirit of the PWDVA.
Asmita Basu: Has there been any change in how people approach courts now that the PWDVA has been in force for twenty years?
Hasina Khan: The PWDVA is actually being used more than Section 498A now. But the changes happening now are not positive ones. The protection officer and the service provider have been given ten thousand things to do. It is not being done with sincerity, there is no budget, there is no infrastructure. If you go to a protection officer in a DCP’s office in Mumbai and ask how many women came to them, they will say: I don’t have time right now, I have been given this job and that job. There is no specific person for this work anymore. Earlier there was. Now they have been given so many different administrative responsibilities. No training is happening. There are no meetings between organisations, police, and the infrastructure established under the PWDVA.
Asmita Basu: Who is actually using the PWDVA? What you are saying is that Section 498A is still being used more. There is a critique that it is an elitist law, inaccessible to women facing multiple forms of discrimination.
Hasina Khan: No, Section 498A is not being used more actually. PWDVA is being used more.
Working-class women are going to court under the PWDVA. Upper-class women are going too. For maintenance specifically, it is largely working-class and lower-income women who are approaching the courts; upper-class women do not approach for maintenance as much. So I do not think the law is only accessible to the privileged.
What has changed is the environment around it. During and after COVID-19, many cases collapsed. Women could not attend hearings, lawyers worked from home, courts went online without adequate infrastructure for those who needed it. Cases were dismissed for non-appearance. In 2023-2024, a lot of women were coming with this complaint as they did not know what was the status of their case or what happened to their case. So then my lawyer reopened it again and revisited the cases. Women who came back later were told their cases were over by the judges as they had not shown up for two and a half years during COVID. The enthusiasm that existed earlier has been worn down by time, money, and uncertainty. These kinds of experiences have happened a lot during and after COVID.
Collective discussion on the PWDVA on a day-to-day level, on a quarterly level, is happening very less now. The State keeps organisations so engaged with so many issues that priorities shift and these conversations stop. In Maharashtra, in places like Mumbai, some discussion takes place. Organisations like Aman Network are doing this work. In Kolkata, SWAYAM and others are prioritising violence against women. But this is not happening everywhere. It depends on the geography, the history of the women’s organisation, how much activism there is on this issue. To come together as a collective and talk about it and think about it, that is very important. And that space is shrinking.
Asmita Basu: Where does PWDVA stand in relation to the current debates on personal laws, the Uniform Civil Code, and how we define the family?
Hasina Khan: In May, we had a three-day workshop in which we spoke specifically with Muslim communities and Muslim women about personal laws. We were looking at the Uniform Civil Code as it has come up in Uttarakhand, Rajasthan, and Gujarat, analysing it, discussing it. The question we were asking ourselves was: should we be afraid of the Uniform Civil Code or not? We need to understand the difference between what uniformity means from a gender perspective and what uniformity means when the State says it. That difference is very important.
When the State says we want to apply the Uniform Civil Code, the immediate reaction is rejection. But we should actually talk about it. Because for Muslim women, polygamy is an issue, halala is an issue, equal property rights is an issue, inheritance rights is an issue, adoption is an issue. Where will all these issues be discussed? Who will work on them? There should be a debate. The Uniform Civil Code originally came from the women’s movement. Then in 1989, the BJP government made it the agenda for their campaign. If we run away from this, who are we approaching for our issues of gender laws? Overall, we will have to engage with the State and the judicial system, irrespective of the repression we are facing.
The PWDVA is a secular law. Any woman can use it, regardless of religion. It offers protections to women in marriages, in live-in relationships, to young adults facing family violence, and, importantly, to the trans community, which faces enormous violence, control, transphobia and homophobia within families. For all of these, the PWDVA offers a framework. It is a huge law with a great significance.
But it is under threat. When states like Gujarat or Uttarakhand bring in provisions under the Uniform Civil Code that asks parents to monitor adult children’s choices, then run directly in contradiction to the spirit of the PWDVA. The Act says that if guardians are violent, they must be held accountable. These new provisions turn that logic upside down. They give the family more power, not less.
It is very important to think about how PWDVA can be saved, and to make the State accountable. The Act on gender rights requires more budget, more infrastructure, more monitoring, not more complications. All our laws such as the PWDVA, MNREGA, have been planned to end one after the other, so that they can create a country where openness, freedom, sexual rights, and choices bow down to the institution of a family inclined towards the Manusmriti and patriarchy.
Asmita Basu: What is the future agenda if we are serious about countering domestic violence?
Hasina Khan: I think we should keep trying to lobby with the State. We must continue to hold both the state and the judicial system accountable for all forms of violence, against women, against youth, against lesbian and trans persons, against anyone whose choices and rights are being controlled and violated.
The infrastructure of PWDVA is crumbling. Protection officers and service providers have been given too many other responsibilities and too little budget. There are no regular meetings, no monitoring, no discussion between civil society and the state the way there used to be. Organisations that once engaged on this issue quarterly, annually, with government departments are now barely meeting once in a few years. That silence is dangerous.
The Lawyers Collective had started this work with a lot of hard work and they are continuously talking about it. Any organisation among us that can work on this must do so with sincerity and must prioritise it. Because if the PWDVA weakens further, the situation can only get worse. And those chances are very real.