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Ch 5. Understanding sections of DV Act (PWDVA) and implications

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What is PWDVA (Protection of Women from Domestic Violence Act)

PWDVA (Protection of Women from Domestic Violence Act) was passed by parliament in Sep, 2005 and was notified by official gazette in Oct, 2006. Commonly it is referred to as DV Act, so we will use the terms DV Act or PWDVA to mean the same thing.

Unlike CrPC 125, the DV Act is very long and has 37 sections in it. One should read the chapter on CrPC 125 first before moving onto DV Act. Apart from that, one may also want to read the DV Rules (rules define the process and procedures for an Act) in Appendix C to get a full understanding of the procedures which will be followed. For example, take a scenario that you have received a phone call from a woman who claims to be from women's welfare organisation, and they say that a DV case has been filed against you. Do you start to worry and start asking them questions about where to do and where to come, or do you first ask them whether they have any authority to call people over the phone? Answers to such questions can be found by reading the DV rules.

Reading the full text of DV Act or DV Rules only out of curiosity or for sake of learning is not everyone's cup of tea. Having said that, reading at least the important sections of DV Act are a must if you have a DV case filed on you. Firstly, let's read the Statement of Objects and Reasons behind passing this law which are given as preface to the DV Act itself. These give an easier understanding of the intentions behind passing such a law. Once we know the intent of the law, it becomes easier to read and understand the specific sections as applicable to each case.

Note: in subsequent discussion and comments on PWDVA, the term "wife" is mostly used to denote the complainant. Legally, even a live-in female partner of a man can claim to be an aggrieved person under DV Act because it covers both wife and live-in female partner of a man. Practically speaking we only see DV cases filed by wife on husband, so to keep things simple I have used the terms wife and aggrieved person/complainant as synonymous in all the places.

Statement of Objects and Reasons of DV Act with commentary

Below I give the verbatim portions of statement of objects and reasons of DV Act, interspersed with my summary comments, with sarcasm and hopefully some wit.

An Act to provide for more effective protection of the rights of women guaranteed under the Constitution who are victims of violence of any kind occurring within the family and for matters connected therewith or incidental thereto

Be it enacted by Parliament in the Fifty-sixth Year of the Republic of India as follows:-

Prefatory Note-Statement of Objects and Reasons.-Domestic violence is undoubtedly a human right issue and serious deterrent to development. The Vienna Accord of 1994 and the Beijing Declaration and the Platform for Action (1995) have acknowledged this. The United Nations Committee on Convention on Elimination of All Forms of Discrimination Against Women (CEDAW) in its General Recommendation No. XII (1989) has recommended that State parties should act to protect women against violence of any kind especially that occurring within the family.

2. The phenomenon of domestic violence is widely prevalent but has remained largely invisible in the public domain. Presently, where a woman is subjected to cruelty by her husband or his relatives, it is an offence under Section 498-A of the Indian Penal Code. The civil law does not however address this phenomenon in its entirety.

3. It is, therefore, proposed to enact a law keeping in view the rights guaranteed under Articles 14, 15 and 21 of the Constitution to provide for a remedy under the civil law which is intended to protect the women from being victims of domestic violence and to prevent the occurrence of domestic violence in the society.

Para 1-3 create the ground for why we need to pass DV Act. Domestic violence is widely prevalent, let's throw in names of United Nations and some of it's committees and initiatives to keep in awe anyone who dares to ask questions, invoke some articles of the constitution for good effect, mention that IPC 498A exists but civil law is lacking in protecting women, hope that the 'patriarchal' but truly speaking white-knight male parliamentarians are ever ready to support any legislation which will protect women in society, and Voila!, we have an easy recipe to pass a new law to protect women. So now friends, we we proceed to pass the act as below.

4. The Bill, inter alia, seeks to provide for the following:-

(i) It covers those women who are or have been in a relationship with the abuser where both parties have lived together in a shared household and are related by consanguinity, marriage or through a relationship in the nature of marriage or adoption. In addition, relationships with family members living together as a joint family are also included. Even those women who are sisters, widows, mothers, single women, or living with the abuser are entitled to legal protection under the proposed legislation. However, whereas the Bill enables the wife or the female living in a relationship in the nature of marriage to file a complaint under the proposed enactment against any relative of the husband or the male partner, it does not enable any female relative of the husband or the male partner to file a complaint against the wife or the female partner.

There you have it, we started off saying violence against women is widely prevalent, invoked name of United Nations, and in the first para of the law itself excluded the mother/sisters of husband to be able to file complaint against wife or female partner. The exact intent of this law is already becoming clear: make a civil version of IPC 498A. It's only for wives people, not all women!

(ii) It defines the expression "domestic violence" to include actual abuse or threat or abuse that is physical, sexual, verbal, emotional or economic. Harassment by way of unlawful dowry demands to the woman or her relatives would also be covered under this definition.

Unlawful dowry demands were covered in Dowry Prohibition Act, 1961, then in IPC 498A in 1983, and now in 2005 we need to cover it once again in this civil version of 498A.

(iii) It provides for the rights of women to secure housing. It also provides for the right of a woman to reside in her matrimonial home or shared household, whether or not she has any title or rights in such home or household. This right is secured by a residence order, which is passed by the Magistrate.

Woman comes, woman stays, you (and your parents) may get thrown out. That's the law!

(iv) It empowers the Magistrate to pass protection orders in favour of the aggrieved person to prevent the respondent from aiding or committing an act of domestic violence or any other specified act, entering a workplace or any other place frequented by the aggrieved person, attempting to communicate with her, isolating any assets used by both the parties and causing violence to the aggrieved person, her relatives or others who provide her assistance from the domestic violence.

Practically speaking, husband and his relatives can get restrained both in physical movements but also in terms of their property/assets.

(v) It provides for appointment of Protection Officers and registration of non-governmental organisations as service providers for providing assistance to the aggrieved person with respect to her medical examination, obtaining legal aid, safe shelter, etc.

Above is what I choose to term as the domestic violence industry. Give incentives and salaries to meet some target quotas of DV complaints, and then act surprised why false DV complaints are rising!

5. The Bill seeks to achieve the above objects. The notes on clauses explain the various provisions contained in the Bill.

Did anyone miss an important point in the Statement of Objects and Reasons of the DV Act? It talks about protecting women (wives) from violence, protection order, residence order, protection officers, service provides etc; but doesn't mention anything about a maintenance order!

So how is it possible that the most important provision of DV Act used against husbands, the maintenance order, is missing from the Statement of Objects and Reasons?

It is intentional people. The fact is that most of the lawmakers don't actually read the whole bill before voting on it in parliament. If they barely go through the Statement of Objects and Reasons before pressing the Yes/No button, that will be an achievement in itself. And for that very reason any mention of maintenance or monetary orders is completely absent from Statement of Objects and Reasons. We don't want to raise any alarm or cause for concern among lawmakers before they vote -- let the male lawmakers feel happy they did their white-knight's role well in protecting the abla-naaris (weak-women) of India. They may not even be aware what they have passed into legislation!

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