THE PROTECTION OF WOMEN FROM DOMESTIC VIOLENCE ACT, 2005 (‘PWDVA’) has crossed two decades and it is time to evaluate the effect of the Act. The Supreme Court in its judgment in Salem Advocate Bar Association (2005) referred to the suggestion made by the Constitution Review Committee with regard to analysing the judicial impact of a legislation and also gave a consequential direction in respect of the two legislations for which extensive amendments were made by the Union of India. It was said:
“The Committee has also suggested that:
"Further, there must be 'judicial impact assessment', as done in the United States, whenever any legislation is introduced either in Parliament or in the State Legislatures. The financial memorandum attached to each Bill must estimate not only the budgetary requirement of other staff but also the budgetary requirement for meeting the expenses of the additional cases that may arise out of the new Bill when it is passed by the legislature. The said budget must mention the number of civil and criminal cases likely to be generated by the new Act, how many Courts are necessary, how many Judges and staff are necessary and what is the infrastructure necessary. So far in the last fifty years such a judicial impact assessment has never been made by any legislature or by Parliament in our country."
Having regard to the constitutional obligation to provide fair, quick and speedy justice, we direct the Central Government to examine the aforesaid suggestions and submit a report on this Court within four months.”
Two research scholars attached to the Tata Institute of Social Sciences with the support of the Ministry of Women and Child Development attempted to study the implementation of the PWDVA. In order to study the actual orders passed by different magistrate courts working under various high courts, they sought permission from respective Chief Justices of different high courts including Bombay High Court and Madras High Court. To their disappointment, the two courts, while granting permission to study the judicial orders passed by the magistrates, refused to allow them to use it in any publication thereby frustrating the very effort of having understanding the impact of the legislation over the judiciary and how they understood the legislation. Added to this, the Madras High Court also refused access to them to study the records from the magistrate courts.
Despite such obstacles, the two research scholars, Monica Sakhrani and Trupti Jhaveri Panchal, have brought out a voluminous report titled ‘Quest for Justice: A Study of the implementation of the PWDVA, 2005’ studying the various orders passed by the magistrates, interviews with the litigants and their counsels as well as several NGOs working in the field.
More than judicial impact assessment of the legislation done at every stage the courts more particularly the high courts were not helpful in proper implementation of the Act. This is not only about the judicial interpretation delivered by them over the PWDVA, but also even on the administrative side very little was done to give proper orientation to the magistrates who are likely to deal with the matter under PWDVA.
When the Madras High Court organized a seminar on the PWDVA for the trial magistrates, this author had the bitter experience of encountering questions from the trial magistrates who even before dealing with PWDVA commented that the judiciary has been empowered with one more piece of legislation to destroy the families. Lawyers Collective even suggested the preparation of a bench manual for the easy reference of trial courts to the Chief Justice of the Madras High Court. However, there was only a hostile rebuke from them to the effect that the judiciary will manage its own affairs and they do not want any such guidance from the NGOs.
Even the high courts put restrictions by giving artificial definition while granting interim maintenance to neglected wives contrary to the previous healthy precedents left by the Supreme Court. This was also noted and commented by the two research scholars in the report (Page 126) and they observed:
“Though Maintenance is a well- defined right under law, Justice Dhingra of the Delhi High Court restricted the right to monetary relief under the PWDVA by holding that "Court shall not grant maintenance to wife unless there is prima facie proof of husband being employed.”46 This judgment was contrary to the well settled principle of grant of maintenance which principle had first been laid down by the Delhi High Court in Chander Prakash v. Shila Rani (AIR 1968 Del. 174) when it held that an able bodied young man must be presumed to be capable of earning sufficient money so as to be able to reasonably maintain his wife and child and he cannot be heard to say that he is not in a position to earn enough to be able to maintain them accordingly to the family standard.”
It is a pity that the trial judiciary was not made aware of the background in which the PWDVA was enacted by the Parliament. In fact, little they realise that the statement of objects and reasons appended to the Bill itself refers to the fact that the law was enacted keeping in view the rights guaranteed under Articles 14, 15 and 21 of the Constitution and also to provide a remedy under a civil law so as to protect the women from being victims of domestic violence and also to prevent the occurrence of domestic violence in the society. Apart from the trial magistrates predicament of enforcing one more law the judicial interpretation placed by several high courts were attempting to put back the law to a curious position which never were contemplated either by the Parliament or by the women’s groups which were lobbying for such an enactment.
A closer look at the high court judgements
It is hereby endowed to study such of those interpretations made by the higher courts on the PWDVA and also to record the ground reality. Before going into the legal aspects, certain factual materials which were recorded in the report given by two research scholars as well as the structural problems faced by the women at the ground level. The first problem was the court’s responses were very indifferent and the disposals were time consuming. In this regard, the Report noted as follows:
“Though most women sought “justice” from the courts, the courts were slow in granting the same. Out of the 2466 cases studied, 821 (33.2 per cent) were disposed of and only 6.2 per cent (166 cases) of these were on merits. Seven cases were rejected and the rest 159 were partially or fully allowed. Of the remaining disposed of cases- 164 were dismissed for default (163 of them in Haryana), 379 were withdrawn (363 in Haryana) and 112 were successfully settled or mediated (mostly in Maharashtra). Evidence was led in only 507 of the total cases. Only 11 cases were disposed of within the stipulated period and approximately 24 per cent of the cases were disposed of within six months of filing of which 6.5 per cent were disposed of within the stipulated period of sixty days. The largest number of pending cases is in the year 2010.”
How the stakeholders were completely frustrated with the vexatious delay in court determining their rights was also reported by the two research scholars who conducted extensive interviews with some of those litigants. They reported (Page 110-111):
“Of the large number of cases that have been withdrawn, the largest is in Haryana-216 in Hissar and 147 in Fatehbad. The largest number of cases that have been dismissed due to default (as the Applicant abandons the case and does not appear in Court) is also in Haryana – 163 out of the total of 164. This large scale withdrawal and dismissal for default could indicate disillusionment with the delays and lack of reliefs being granted by the courts.
In the interviews conducted with 193 women litigants too, one of the major challenges that the women appeared to face was the long delays in the court and the lack of speedy remedy (78). Of the 193 women, 29 had settled or compromised in their cases of which only 8 were satisfied with the outcome of the settlement. The reason for the settlement became clear when we consider that over 80 per cent had got no relief from the courts and only 16 women had got the reliefs prayed for.”
The Report also in its recommendations made a reference to the conduct of the courts and the necessity to sensitize them. In para 5, 7 and 12, it was recommended as follows:
“Some also expressed the need for sensitization and training of judges in dealing with cases of violence against women. This appears to be required given the lack of adequate court response.
They felt that judicial officers do not take their cases seriously and consequently do not pass adequate relief and do not deal stringently with violations.
The procedure for cases under the PWDVA is ad hoc and changes according to the judicial officer. This requires streamlining and the rules ought to be framed to standardise the procedure relating to the cases.”
The Report also pointed out the reluctance of the magistrates in granting residence orders due to the confusion created by the Supreme Court in Taruna Batra’s case (2006) and also due to lack of legal rights of women in matrimonial properties. In fact, the Report concluded with an observation on the overall impact of PWDVA.
“The study showed that violence against women is extreme and harms a woman’s well- being. It also showed the extra-ordinary effort and courage required to combat the same on the part of the women. It reinforced the need for a strong and effective law to address violence against women. The overall finding of the study was that the law address the issue in a comprehensive manner but requires more effective implementation”
Even before PWDVA could properly be used by the affected women, many courts started voicing the usual grievance that the Act was being misused, thereby even making the trial magistrates to look indifferent to the genuine grievances of survivors. In Vijay Verma’s case (2010), it was observed as under:
“Filing of a petition under Protection of Women from Domestic Violence Act by the petitioner taking shelter of domestic relationship and domestic violence needs to be considered so that this Act is not misused to settle property disputes.”
The same grievance was projected by Madhya Pradesh High Court in cases such as Raj Kishore Shukla (2015), Manish Das (2022), the Bombay High Court in Y.Kunjappan (2011), and the Punjab and Haryana High Court in Hardeep Khan (2022). However, the Report presented by the two research scholars showed the other way (Page 109):
“From the 2466 cases perused under this study, the large majority of the cases were still pending (1645). There were some that were disposed of (821), whereas there were a large number of cases that were withdrawn (379). Interim reliefs were granted in only about 159 cases of the 2466 cases that showed the insensitivity of the courts to the plight of the women facing domestic violence. It was observed that two thirds of the cases were pending. Evidence was led in 507 cases of the 2466 studied. Of the cases that were disposed of, in only 166 cases (6.2 per cent) had a judgment delivered. Of these disposed of cases, it was found that in a large majority of the cases, the women succeeded in their cases with the court accepting their complaints. The fact that women’s complaints are accepted by the courts suggests that the allegation of many persons that the law is misused by women is totally unfounded and unsubstantiated.”
In fact, most of the women who approached the court really wanted to continue their matrimonial life and did not want to break it. They only wanted a safety measure of not being subjected to domestic violence by their husbands. The interviews conducted by the two research scholars elucidated the opinion of the women interviewed in the following terms (Page 124):
“from the interviews of the women it was found that most women wanted to live in their matrimonial homes, but they also wanted the violence to stop. Since they were displaced from their homes, were not given any money for their daily sustenance, were injured, were dependant, they would require monetary reliefs too. Unfortunately, the perpetrators of violence in a lot of cases did not want to live with the woman, due to varied reasons as stated earlier in this report.”
How then their lordships can take a view that the Act has been put to misuse when the majority of the women wanted to continue to live with their husbands without being subjected to violence by them?
The claim of ‘misuse’ continues in the Parliament
However, this theme of alleged misuse was also echoed in the Rajya Sabha by certain members. While replying to their queries, the Law Minister in 2016 admitted that there were only 13 convictions but 639 charge sheets are pending trial as of the year 2014. He also agreed with the possibility of misuse and the provisions of the Act will be amended.
“The government told the Rajya Sabha on Wednesday that “some times” provisions of the Domestic Violence and Anti-Dowry Acts were misused and several NGOs had also given reports supporting it. Answering a question on cases of domestic violence in the country, MoS (Home) Kiren Rijiju said that only 13 persons were convicted out of the 639 charge sheeted in 2014 under the Protection of Women from Domestic Violence Act 2005”
Despite ten years having gone by, the government has not cared to bring in any amendment taking note of various judicial interpretations given by different high courts and the Supreme Court. Even when specific directions were given with regard to matters relating to violence against women by the Supreme Court to the legislatures, they went largely unnoticed and never acted upon. In Preeti Gupta’s case (2010), the court gave a specific direction in this regard:
“It is high time that the legislature must take into consideration the pragmatic realities and make suitable changes in the existing law. It is imperative for the legislature to take into consideration the informed public opinion and the pragmatic realities in consideration and make necessary changes in the relevant provisions of law.”
However, when it comes to fiscal matters and corporate issues, they never chose to act indifferently. The Insolvency and Bankruptcy Code, and Arbitration and Conciliation Act, are the two classic examples and in the last 10 years they had undergone amendments three times and all sooner the court verdicts were pronounced. The reason could be either the voice of the women’s organisations are never heard in the portals of the Parliament or they exercise very little pressure as lobbyists.
Even the Supreme Court sends different signals at different times in matters of violence against women. In S. Vijikumari’s case (2024), the court gave the background and the need of the law:-
“The Act is a piece of Civil Code which is applicable to every woman in India irrespective of her religious affiliation and/or social background for a more effective protection of her rights guaranteed under the Constitution and in order to protect women victims of domestic violence occurring in a domestic relationship.”
On the other hand, the Supreme Court did not fail to advise the parties to go slow on the matter and not to exaggerate trivials lest the marriage institution may fail in the Achin Gupta’s case (2024). It said: -
“We are saying so for the simple reason that if the wife on account of matrimonial disputes decides to harass her husband and his family members then the first thing, she would ensure is to see that proper allegations are levelled in the First Information Report. Many times the services of professionals are availed for the same and once the complaint is drafted by a legal mind, it would be very difficult thereafter to weed out any loopholes or other deficiencies in the same…. The foundation of a sound marriage is tolerance, adjustment and respecting one another. Tolerance to each other's fault to a certain bearable extent has to be inherent in every marriage. Petty quibbles, trifling differences are mundane matters and should not be exaggerated and blown out of proportion to destroy what is said to have been made in the heaven. The Court must appreciate that all quarrels must be weighed from that point of view in determining what constitutes cruelty in each particular case, always keeping in view the physical and mental conditions of the parties, their character and social status. A very technical and hyper sensitive approach would prove to be disastrous for the very institution of the marriage. In matrimonial disputes the main sufferers are the children. The spouses fight with such venom in their heart that they do not think even for a second that if the marriage would come to an end, then what will be the effect on their children. Divorce plays a very dubious role so far as the upbringing of the children is concerned”.
People who speak about the alleged misuse of the provisions must only see the ground reality where thousands of women who are subjected to domestic violence or denied shared household are still fighting for justice for years together without there being any relief given to them by the courts concerned. The institution which talks about judicial impact assessment of any legislation did not even care to study the results of the application of the legislation for over two decades. The govt. which promised the necessary amendments to plug the loopholes hardly has any time to deal with the issue. In the result, the experience gained clearly shows that the legislation is a must to give a cover for the women who suffer from silence within the domestic household and denied even the basic requirements of a partner in a domestic life.
