J Fam Viol (2011) 26:319–330
DOI 10.1007/s10896-011-9369-1
ORIGINAL ARTICLE
Legal Protection Against Domestic Violence in India: Scope
and Limitations
Biswajit Ghosh & Tanima Choudhuri
Published online: 29 March 2011
# Springer Science+Business Media, LLC 2011
Abstract This paper deals with the scope and limits of
legal measures to curb domestic violence against women in
India. The Indian state has enacted several laws in the past
to address the issue and recently a new comprehensive law
is added to the list. The new law has become an alternative
to many urban victims. Yet, a review of the performance of
the old and new laws on domestic violence proves that legal
measures to curb domestic violence have serious limita-
tions. They could neither guarantee any reduction in the
extent of such violence, nor could they expedite the justice
delivery system in India. Much remains to be done to
ensure gender justice in a patriarchal society. Discussion
here is based on secondary data and supplemented by field
data collected through qualitative research informed by
feminist epistemology in the district of Burdwan, West
Bengal.
Keywords Dowry . Domestic Violence . Gender .
Protection . Patriarchy . State and Law
There is a tremendous rise in the officially claimed number
of crimes committed against women and particularly wives
in matrimonial homes in India. Violence against wives, the
central concern of this paper, is not, however new and it is
found in all societies across all economic and age groups.
Consequently, sexual violence appears to be an intrinsic
part of women’s lives. The women’s movement in India,
B. Ghosh
University of Burdwan,
Burdwan, West Bengal, India
e-mail: bghoshbu@gmail.com
T. Choudhuri (*)
Burdwan Raj College,
Burdwan, West Bengal, India
e-mail: tchoudhuri@yahoo.in
particularly during the last three decades, has reacted
sharply to such escalating instances of violence against
women by demanding legislative action. These efforts,
argues Menon (2000), have been successful in that every
campaign has resulted in legislative changes. Yet, imple-
mentation of these laws has remained partial. Conservation
and incorporation of more stringent punishment for a crime
in the law book has rather resulted in fewer convictions
than before. As a result, there is growing awareness among
women activists about the efficacy of law to prevent such
violence.
It is in such a context that The Protection of Women from
Domestic Violence Act, 2005 (PWDVA) has been added to
the existing laws in recent times. Although from the
feminist’s point of view, the law’s treatment of women in
relation to men has not always been equal and fair, many
stakeholders have hoped that the new law would be
constructive in providing relief to women from violence.
Given that the law has traditionally worked from a
patriarchal perspective, attempts were made to draft the
new law from a new perspective within, however, the same
framework. The objective of this paper is to examine the
extent to which the PWDVA has been able until now to
achieve its objectives. Discussion here is based on official
statistics, secondary reports, and data collected through
qualitative research informed by feminist epistemology in
West Bengal’s Burdwan district.
Research Setting and Procedure
Burdwan is one of the 19 districts of the state of West
Bengal with 37% of its 6,050,605 population living in
urban areas as per the 2001 Census. The Durgapur-Asansol
belt of industrial zone is located within the district.
320
Burdwan also produces the highest amount of rice in the
state (Government of West Bengal 2004a). This ‘rice bowl’
of Bengal necessarily contributed to third highest Per
Capita State Domestic Product of Rs. 17,538 in 2004
(Government of West Bengal 2004b). Burdwan has 922
women per 1,000 men (sex ratio), which is lower than the
state average of 934 in 2001. Expectantly, the rates of both
male (78.63%) and female (60.95%) literacy in the district
in 2001 is slightly better than the state averages of 77.02%
for male and 59.61% for female. Being one of the
developed districts of Bengal, Burdwan offers a brilliant
opportunity to appreciate the capacity of legal reforms to
restrain gender violence.
The fieldwork was first conducted during 2008–09 and
later during August-October 2010. Attempts were made to
collect 20 case histories of the victims of domestic violence
following a participatory model of research. Participants for
this study were selected from a list of available and willing
victims provided by the Protection Officer (PO). Informa-
tion about these cases were collected from: a) records kept
with the PO, b) in-depth interviews of the victims and their
close relatives in an environment that does not endanger the
safety of the participants, and c) copies of court orders. The
opinions of the PO, judges, and lawyers were also sought.
Some of the accused were also interviewed. The partic-
ipants were located first in the offices of the PO or court
compounds at Burdwan, Durgapur, and Asansol; then, these
cases were pursued through personal contact. Many
participants of this research, coming mainly from urban
background, were not hesitant to disclose information as
they had left their matrimonial home. To supplement the
qualitative data, information about all the 320 women, who
have registered their cases under the new law by October
2009, were collected.
State Response to Gender Inequality in India
The Indian state since independence has attempted to bring
about desirable changes in the status of women and check
gender violence through legal reforms. Equality before law
is a Fundamental Right, and discrimination on the basis of
sex is legally prohibited in India. The lawmakers have also
taken up the Hindu law, supposed to be personal laws of
divine origin like others, for inserting certain necessary
changes and also for making uniformities among the
Hindus. They have also reserved 33% of seats for women
at local bodies and the effort to increase such reservation, or
ensure it at the highest level of electoral bodies is going on.
Since Independence, the Indian state has framed more
than 50 laws and acts under the Indian Penal Code (IPC)
and Special & Local Laws (SLL), which have direct or
indirect bearing on the life of women. Many of these laws
J Fam Viol (2011) 26:319–330
or acts were amended later mainly due to pressure build up
by women’s organizations to make the laws contextual and
effectual. Yet, an analysis of the state response to gender
inequality in India has led Sarkar (2005) to conclude that
‘the state has tended to take a step forward and two steps
backwards in its support of legal provisions that favour
women’. It has also been argued that Indian law subordi-
nated women in complex and subtle form by reinforcing
deeply gendered assumptions, relations and roles (Kapur
2005). The law plays a role in legitimating unequal power
relations in society through its recognition of familial
ideology, the public/private distinction, and the sexual
division of labor. It is in such a context that the PWDVA
has been added to the existing laws.
Performance of Laws Related to Dowry and Torture/
Cruelty
Prior to the passing of the PWDVA, women could seek
criminal sanctions for domestic violence under Section 498A
of the Indian Penal Code (Anti-Cruelty Act) or Section 304B
(Dowry Death Act). After Independence, the steady rise in
dowry deaths in India had compelled the government to
enact the Dowry Prohibition Act in 1961 to book a person for
demanding dowry. Let us begin, in brief, with an analysis of
the performance of these old laws. It may be noted at the
outset that despite the long presence of legal prohibitory
measures to prevent dowry and domestic violence, the
number of such crimes is escalating in India. Thus, the
number of dowry deaths has increased from 6,208 in 2003 to
8,172 in 2008. Similarly, dowry prohibition cases have gone
up from 2,684 in 2003 to 5,555 in 2008. Finally, cases of
cruelty by husbands and other relatives have increased
dramatically from 50,703 in 2003 to 81,344 in 2008 (GOI
2003, 2008). These are official statistics and no one knows
how many cases go unreported, since the myth that wife
battering is a ‘private matter’ has silenced many victims for
centuries (Bhattacharya 2004). It appears that the mere
passing of acts may fail to guarantee any reduction in the
number of violence. Similarly, existence of any law cannot
guarantee registration of sufficient number of cases. For
instance, cases registered under the Dowry Prohibition Act
represent only a fraction although dowry is a common
cultural practice in India (Ghosh 2007).
We must also recognize local or regional diversity in
police approach to record a crime under different sections
of law. Data cited in Table 1 would make this clear. The
table shows that Bihar tops the list of dowry death and
comes second in dowry prohibition cases (by rate) in 2008.
But, in registering ‘cruelty’ cases, which are very much
related to dowry transactions in the Indian society, this state
is placed at the 16th position. Similar is the case of states
J Fam Viol (2011) 26:319–330 321

like Orissa, Uttar Pradesh, Madhya Pradesh and Jharkhand.
While it may be true that cruelty within home may not
always lead up to death (as in the case of states like Tripura,
West Bengal and Kerala), it is unlikely that states with
higher rates of dowry deaths do not witness domestic
violence. Brutal conflict over dowry cannot take place
without disturbing the normal conjugal structure.
Table 1 also points out that states like Kerala and West
Bengal, known for higher levels of socio-economic develop-
ment, are also experiencing rising incidences of cruelty
within home. This could be partially due to higher reportage
owing to increase in literacy and awareness among women.
But, it is equally true that in a patriarchal society like ours,
assertion of rights by women as well as increasing
participation of women in public life may also engender
hostile responses from their male counterparts in both public
and private spheres. Thus, the findings of a study carried out
between 2005 and 06 on 750 married women aged 16 and 25
in Bangalore suggest that working women have 80% higher
chance of being abused by their husbands as compared to
those unemployed (The Statesman 2009). From this point of
view, the rising trend of violence against women in India can
also be interpreted as an expression of patriarchal domination
in general and hidden male ‘frustration’ to control the so-
called ‘docile and subjugated subject’ in particular.
The ever-increasing volume of domestic violence against
women in contemporary India must therefore be of serious
concern to all of us. This is more so because in spite of a
very high rate of chargesheeting (when police file a ‘charge
sheet’ against the accused person after investigation), the
rate of conviction has remained very low in dowry related
crimes (see Table 2). The provisions and performance of the
new Act shall have to be reviewed in the light of such
dwindling performances of the state and law implementa-
tion machinery in the country.
Provisions Under the New Domestic Violence Law
Before the enactment of the Act, the term ‘domestic violence’
was defined narrowly to refer to only cruelty and harassment
of wife, and wife’s murder under section 498A and 304B of
the IPC (Ray 2006). Continuous struggle by women’s
groups has changed the situation and ultimately Indian
lawmakers have realized that domestic violence mean not
only violence related to dowry but several other forms of
crimes. PWDVA is a comprehensive law and it addresses all
issues related to women in the domestic sphere. Interesting-
ly, as per the judgment of the Bombay High Court delivered
on 18th July 2009 provisions of the new Act will apply
retrospectively. Hence, women can seek protection under
the new Act even though they have faced violence much
before it came into force in October 2006.
The act has classified ‘domestic violence’ into four
categories, namely a) physical, b) sexual, c) verbal &
emotional, and d) economic violence, and attempted to

Table 1 Incidence (I), Rate (R)

and Rank by Rate (RR) of Major States Dowry Death Dowry Prohibition Act Torture/Cruelty
Dowry related crimes and &
Torture in Major States in India, I R RR I R RR I R RR
2008
Andhra Pradesh 556 0.7 5 1069 1.3 3 10306 12.5 3
Assam 103 0.3 8 11 0.0 8 3478 11.6 5
Bihar 1210 1.3 1 1288 1.4 2 1992 2.1 16
Delhi 129 0.7 5 19 0.1 7 1387 8.0 8
Gujarat 27 0.0 10 00 0.0 8 6094 10.8 6
Haryana 302 1.3 1 13 0.1 7 2435 10.2 7
Jharkhand 266 0.9 4 435 1.4 2 851 2.8 14
Karnataka 259 0.4 7 628 1.1 4 2638 4.6 10
Kerala 31 0.1 9 05 0.0 8 4138 12.1 4
M. Pradesh 805 1.2 2 32 0.0 8 3185 4.6 10
Maharashtra 390 0.4 7 49 0.0 8 7829 7.3 9
Orissa 401 1.0 3 1316 3.3 1 1618 4.0 12
Punjab 128 0.5 6 04 0.0 8 984 3.7 13
Rajasthan 439 0.7 5 03 0.0 8 8113 12.5 3
Tamil Nadu 207 0.3 8 262 0.4 5 1648 2.5 15
Tripura 16 0.5 6 01 0.0 8 735 20.9 1
Source: Crime in India 2008, Uttar Pradesh 2237 1.2 2 324 0.2 6 8312 4.3 11
Table 5.2, National Crime Re- West Bengal 451 0.5 6 68 0.1 7 13663 15.5 2
cord Bureau, Govt. of India, All India 8172 0.7 - 5555 0.5 - 81344 7.1 -
New Delhi.
322 J Fam Viol (2011) 26:319–330

Table 2 Chargesheeting Rate & Conviction Rate of Selected Dowry Related Crimes in India, 2001–2008

Year Dowry Death Cruelty by Husband/Relatives Dowry Prohibition Act

Chargesheeting Rate Conviction Rate Chargesheeting Rate Conviction Rate Chargesheeting Rate Conviction Rate

2001 92.7 32.3 91.6 22.2 89.7 29.9

2002 93.7 34.0 93.0 21.4 88.7 28.8
2003 94.3 32.4 95.1 18.2 91.7 21.1
2004 94.3 32.01 94.2 21.5 91.9 25.0
2005 95.2 33.4 94.6 19.2 92.1 25.5
2006 94.0 33.7 94.1 21.9 87.1 27.3
2007 92.8 33.0 93.9 20.9 90.7 23.1
2008 92.8 33.4 93.7 22.4 91.0 23.9

Source: Compiled from Crime in India 2001–2008, NCRB, Govt. of India, New Delhi

define such violence comprehensively. The act has laid down
stringent rules to prosecute a man for any type of violence
committed against women at home. Even though the new
law is framed to protect women from domestic violence
committed by adult male ‘respondents’, an aggrieved wife
may also ‘file a complaint against relatives’ including female
relatives of the husband. However, ‘no order under clause (b)
shall be passed against any women’ and remove her from the
shared household. A victim also has the right to simulta-
neously file her own complaint under section 498A of the
IPC. For any ‘breach of protection order’ under section 18 of
the Act, a man can be jailed for 1 year, or fined up to Rupees
20,000. Under section 31 and 32 of the Act, such offence is
cognizable and non-bailable.
The new Act goes beyond the 498 (A) of the IPC and
extends protection to even female live-in partners. The law
empowers the court to stop any further acts of domestic
violence on the woman or her children. It also prescribes
for giving possession of stridhan (property of the wife
given by her parent), jewelry, clothes etc., to woman and
stops all transactions of any joint bank accounts/lockers.
Further, the act provides for the right of woman to live in
her matrimonial or shared household peacefully, her right to
property in which she is residing, and stops any disposing
off the house without the permission of the court. In other
words, an aggrieved wife cannot be harassed for lodging a
case against her husband or other members of the house.
The law also makes a provision for positive entitlements
through an interim monetary relief order related to a)
maintenance for the victim or her children, b) compensation
for physical injury including medical expenses, c) compensa-
tion for mental torture/emotional distress, d) compensation for
loss of earning, e) compensation for loss due to destruction,
damage, removal of any property from her possession or
control. Thus, the Act for the first time goes beyond the
framework of mere ‘punishment’ to the offenders and tries
rather to protect women from violence at home.
The creation of an official cadre called Protection
Officers (POs) and recognition of NGOs as Service
Providers (SPs) are two other salient features of the new
law. The POs and the SPs will also provide free legal,
medical, shelter and other assistance to the aggrieved
woman. The POs can be penalized for failing to discharge
his/her duty with the permission of the state government.
Besides, the law takes into consideration the issues like
speedy justice and easy accessibility to justice. First, the
cases under this act will be adjudicated under the
magistrate’s court, which is located at the sub-district level.
Second, there is emphasis on speedy disposal of cases. The
first court hearing has to be fixed within 3 days of the date
of receipt of application, and within 6 days of first hearing,
it is to be disposed of. In addition, the act makes provision
that the sole testimony of the aggrieved person may be
sufficient for the court to reach a conclusion.
Objections Raised Against the Act
Let us also note the non-feminist critiques of the Act so as
to assess their validity and reliability in real life:
First, the act is argued to be highly inclined in favour of
women and this has raised fear about its likely misuse to
harass the male relatives. There is apprehension for rise in
the rate of divorce if women come forward to register cases
under this act. Pandurang Katti and Anil Goebekk of the
Save Indian Family have remarked (Sharma 2006):
In fact, our fear is that the institute of marriage may
end, as it would be viewed with suspicion if the
interests of very members are not protected. Preven-
tive measures can be taken by husbands to protect
their interests in the face of abuse of the new Act.
Perhaps it would be advisable for the men and their
family members to read the Act properly, understand
J Fam Viol (2011) 26:319–330 323

it fully before venturing into any relationship leading Legal Necessity

to marriage.
The shortcomings of the Domestic Violence Act should not,
Organizations like Save Indian Family claim that they are
however, undermine its necessity in the Indian context. We
approached for help by a large number of males complaining
have noted earlier that domestic violence constitutes the
of harassment by women, even violence. It is true that like
major type of crimes committed against women in the
many other acts, this Act may also be misused. But,
country. It is worth noting that cases of dowry death (8172),
paradoxically, the latest NFHS–3 Survey reveals that spouse
dowry prohibition (5555) and torture/cruelty by husband
violence initiated by woman in India constitutes only a small
and other relatives (81344) collectively constitute 48.54%
fraction (1 to 4% for women belonging to different
of registered crimes against women in the country in 2008.
categories) of violence initiated by men (International
This implies that women in India, irrespective of socio-
Institute of Population Sciences IIPS 2007).
cultural differences, continue to be exploited, harassed and
Secondly, there is reason to believe that some of the
tortured in domestic sphere. Surprisingly, certain myths are
offences mentioned in the act cannot be proved. For
also prevalent as part of the patriarchal ethos which prove
example, how can one furnish evidences regarding any
that violence is ‘normal’ within family (Ahlawat 2005).
‘sexual violence’ being committed by a husband? The act
Often the abusive men is stereotyped as 'alcoholic',
has also been criticized for lack of clarity. ‘Insults’ and
‘mentally ill’, or ‘very angry in nature’, who would
‘jibes’ are mentioned in the new act under ‘emotional
normally not commit any violence! These myths are
violence’ without providing any standard definition of these
dangerously misleading and research has proved that
terms. Ambiguity in the law increases the apprehension of
domestic violence cannot be controlled unless the rhetoric
its misuse. Pandurang Katti points out (Sharma 2006):
of male domination is challenged seriously. Hence the
‘female bias’ of the recent act or its potential for being
Mental and verbal abuses have the potential to be
misused should not be exaggerated, even though it is
misinterpreted while causing grievous harm. Quarrels
necessary to be careful about such deviations.
and marital disputes cannot be defined as mental and
Nevertheless, the passing of the new act once again
verbal abuse. A significant portion of quarrels and
reveals our dependency on the administrative and legal
disputes have arisen following refusal of the husband to
machinery to prevent gender crimes within the prevailing
move to a separate house, late working shifts either by
patriarchal social structure. Hence, there remains serious
wife or husband, gifts to be given to relatives, stay of
concern about possibility of the new law to make
relatives, dispute over household responsibilities between
qualitative changes in the life of women within family.
mother-in-law, sister-in-law, mother, sister and brother.
Third, the new Act seeks to cover the female live-in
partner also and thus it gives, though indirectly, legitimacy to Implementation of the Act
the practice of live together. One may argue that the practice
of live together does not in itself reflect ‘women’s liberation’ Even though PWDVA is a new act, we may take note of the
in the Indian context. It may rather promote a culture of free progress made so far during the last 3 years in implement-
sex and may make the position of women more vulnerable in ing the law. It may be noted that comparative and standard
a society that is not known for quick justice. data on the implementation1 of Act is yet not available. In
Finally, the most striking objection against the new law is the absence of any government agency bringing out any
that it targets the male offenders. This objection is only partly assessment report, the task is left to the NGOs. Thus, the
valid as female relatives of a male offender may also be booked First Monitoring and Evaluation Report 2007 on the law
under the Act though female offenders cannot be singled out by the Lawyers Collective reveals that a total of 7,913
for any act of domestic violence on women (Lawyers applications were received in between October 2006 to July
Collective 2009). 2007 and the figure reached 10,000 by October 2007. This
Our experience however proves that female offenders are list also reveals that there is serious variation in registering
hardly booked under the PWDVA although there are a few cases under the law in different states. Thus, four Indian
instances of aggrieved wife filing complaint against female states namely, Rajasthan (3440), Kerala (1028), Andhra
relatives where the husband is the main accused. As the Pradesh (731) and Delhi (607) have collectively registered
‘spirit’ of the law is to protect the female members of a 73% of cases under the law in the country in between
family, women offenders can at best be warned by judges
against any violation of the rights of the ‘aggrieved person’.
Hence, this law will be of no help to sort out several family- 1
The implementation of PWDVA has really begun from the date of its
centered quarrels involving mainly the female offenders. notification on 26th October 2006.
324
October 2006 to July 2007 and even among such high
performers, there exists wide discrepancy as Rajasthan’s
share in the contribution is almost 60%. At the lower end of
the scale exist states like Bihar (64), West Bengal (54),
Jharkhand (13) and Orissa (12).
While the Second Monitoring and Evaluation 2008 has
noted ‘great variability in the implementation of the law’,
the Third Monitoring and Evaluation Report 2009 contin-
ued with the need for effective and adequate infrastructure
apart from maintaining the ‘need to review certain aspects
of the substantive and procedural law’ (Lawyers Collective
2008, 2009). This report conclusively suggests that ‘while it
is possible to have a law, it does not automatically mean
that violence against women will come to an end’
(Rajalakshmi 2010). Surprisingly, till September 2010 only
three states namely, Andhra Pradesh, Delhi and West
Bengal have appointed full-time Protection Officers (POs),
five have listed registered Service Providers (SPs), and 12
have notified medical facilities and shelters. There is,
therefore, ‘reason to be happy as well as sad and the state
governments need to do more to implement the act’2.
The number of cases filed through PO in the district of
Burdwan is 143 in 2007–2008, 197 in 2009 and 234 in
20103. Most of the aggrieved wives have also simulta-
neously filed cases under Sec. 498-A IPC. Though the Act
is gradually becoming popular, the volume of such cases is
close to one-third of those of the old law4. In case of West
Bengal, 13,666 cases were booked under the old law in the
year 2008. But the total number of PWDVA cases filed
during the last 3 years is less than 2000. Hence, statistically
the new law is yet become an alternative to even those who
are currently filing cases under section 498-A of IPC. This
is in spite of the fact that the volume of such cases is
increasing in recent times, as in between January to June
2010, 1397 cases are filed in the state.
We need to explore reasons for lesser number of
domestic violence cases although the scope of the new act
is much wider and the procedure for filing a case is also
‘victim friendly’. In Burdwan there is hardly any move by
any organization including the government to popularize
the provisions of the law across different sections of
population and particularly among the ruralites. As a result,
most of the 320 women seeking protection under the new
law in the district hail from urban background and most of
these women were advised by their lawyers to do so. There
2
Girija Vyas, chairperson of the National Commission for Women,
said this while commenting on the progress made so for in
implementing the new law.
3
The first case was registered on 27th November 2007. Initially 5–6
cases were reported a month. But within six months, the figure
doubled to 10–12 cases. Now nearly 20 cases are filed a month.
4
81344 cases of ‘cruelty’ cases are filed in the country in 2008, but
the new domestic violence act is yet to attain such popularity.
J Fam Viol (2011) 26:319–330
are problems with several other aspects of implementation
of the law. Let us first cite here some case histories to
explain the process of implementation of the new Act.
Case Studies of Victims
Case 1 Mrs. Rubina was physically & mentally tortured
since her marriage on 19th March 2001. She was first
shifted to a new flat at Burnpur under Hirapur police station
of Asansol town by her husband, keeping all the stridhan
properties at the original matrimonial home at Rahamatna-
gar and denied the love and affection of her only son
(6 year old) by shifting him at a hostel. She was finally
driven out of that flat on 5th October 2007 when her parents
could not meet incessant demands of dowry. Rubina’s
father then took her away to Durgapur town and filed a case
u/s 498A/406 IPC. A separate case was later filed under the
PWDVA and the Additional Chief Judicial Magistrate
(ACJM) of Durgapur passed a ‘protection order’ (Misc
case No 5/08, order No. 5) in favour of Mrs. Rubina on 3rd
July 2008. Considering all the facts and arguments, the
court allowed her a) the right of residence in the shared
household at Rahamatnagar, b) her right to enjoy stridhan
properties, c) entitlement of Rs. 2000/per month for
maintenance from the husband, and finally d) love and
affection of her son in the matrimonial home. Meanwhile,
the accused, Mr. Ahmed, a lawyer by profession, had
moved from the quarters at Burnpur to the original house of
his parents at Rahamatnagar. But when the concerned PO
and the local police officials went to ensure right of
residence to Rubina at Rahamatnagar, they found the house
locked. Following a report by the PO on the matter, the
court issued arrest warrant against Mr. Ahmed, Rubina’s
spouse. But the High Court stayed the order on hearing the
plea that the ‘house’ belongs to the mother of Mr. Ahmed
and Rubina along with her husband did not stay at
Rahamatnagar before separation. Finally, in January 2009,
the High Court dismissed Mr. Ahmed’s petition as Rubina
did stay at Rahamatnagar home after marriage and desired
that Rubina ‘may move to appropriate forum to settle the
matter’. Rubina then approached the Additional District
Judge (ADJ) of Durgapur. But the matter could not be taken
up for more than a year, as the post of ADJ was lying
vacant. On 10th August 2010, the ADJ gave a verdict in
favour of Rubina sustaining all the right that the CJM court
had earlier ordered including an enhanced maintenance
grant of Rs. 3000/per month. Failing to implement the order
till September 2010, Rubina again had to move to the court
of ACJM, Durgapur. She simultaneously approached the
District Judge Court for availing the custody of her son
whom she did not see since October 2007. Rubina is now
physically and mentally tired of seeking ‘justice’. For the
last 3 years she is moving from one court to the next. She
J Fam Viol (2011) 26:319–330
considers the whole process a ‘farce’ as police is corrupt
and administration is ‘indolent’.
Case 2 Pampa of Asansol had filed a case in 23rd
November 2006 under the act when her brother-in-laws
attempted to throw her and her two children out of the
matrimonial home (joint property) after the death of her
husband who was an AIDS patient. They also tried to sell
the house to deny her rights to residence at matrimonial
home. Initially, none of her neighbors came to her rescue.
But the Additional Chief Judicial Magistrate (ACJM) of
Asansol resisted the move and allowed Pampa to stay at
that home. As a result, Pampa could not be evicted and the
sale of the costly property was stayed. Her neighbors also
started supporting her case. In spite of a positive verdict,
Pampa’s problem could not be solved, as the accused did
not hand over any property deed to her. The accused have
rather filed an appeal against the verdict first at the Session
Court and later at the High Court (when the Session Court
verdict went against them). The High Court also subse-
quently asked the accused to solve the matter through a
‘sitting settlement’ and distribute one-fifth of the total
property to Pampa. But, the accused, being economically
influential and having the support of the local police, did
not reply to two notices given to them. Pampa then went to
a Division Bench of High Court on August 2010. Being
frustrated, the accused also recently tried to physically
assault Pampa. The case is clearly in favor of Pampa; yet
she is made to wait for an unknown period and is also
facing threat to her life. Pampa believes that law can’t
provide justice to her unless the local administration and
particularly police becomes serious to implement the
orders.
Case 3 Kabita (Case No. C/268/2008 at the court of
Judicial Magistrate, Asansol) was subjected to verbal,
emotional and physical abuse by her husband, Ajoy, for
not having a male child, for failing to bring dowry and for
raising objections about illicit relationship of her husband
with his sister-in-law. Even the two minor daughters were
not spared. Ajoy later took them to his in-laws house, but
did not care to take them back; neither did he care to
inquire about them. Ajoy rather filed a suit of divorce
against Kabita, who then was forced to file a case under the
new law. When the case came up for hearing at the court,
Ajoy tried to defend himself by putting blame on the moral
character of Kabita and by arguing that she went back to
her father’s house on her own. Marathon cross-
examination, however, proved that Kabita was subjected
to domestic violence and she was also not allowed to
resume marital tie and get an entry into matrimonial home.
Moreover, Ajoy had no intention to take her back. The
court, therefore, passed order, on 8th August 2008, to the
325
effect that a) the respondents should not commit any act of
domestic violence against the petitioner and the minor
children, b) should not alienate any assets of the petitioner
including stridhan property, c) allow the petitioner and the
children to stay at the matrimonial home without any
disturbance in any manner whatsoever, and d) pay a sum or
Rs. 6000/per month to the petitioner within 7 days of every
month to meet the expenses. Even though the verdict was
satisfactory to the victim, it was only partially implemented.
Kabita was allowed to stay at the matrimonial home, but
Ajoy did not pay her monthly maintenance regularly. This
forced her to report the matter again to the Protection
Officer and others concerned. Even though a breach of a
protection order is a cognizable offence under sections 31
and 32 of the Act, no action was taken against Ajoy. The
effort got restricted rather to convince Ajoy to reach a
compromise. Because, punishment to Ajoy was not thought
to be a solution to the problems of Kabita or her minor
children. Hence, after long persuasions, Ajoy agreed, in the
month of January 2009, to accept Kabita as his wife and
start normal conjugal relations. It would be interesting to
see how far and how long normal conjugal relations are
maintained in this family.
Case 4 Chinmoyee (Case No. C/276/2008 at the court of
Chief Judicial Magistrate, (CJM) Burdwan), wife of Tarun,
was subjected to severe mental and physical torture by her
in-laws and husband. The problem started when the male
child, whom she gave birth, died after 8 days of delivery.
Subsequently, she gave birth to two more girl child. Being
dissatisfied, the family members tried to kill her by mixing
poison with her food. When neighbors brought her to the
hospital for treatment of poison, Tarun attempted to reach a
compromise to avoid any police arrest. But, on 23rd March
2008, Tarun tried to kill her by pouring kerosene. She
somehow jumped on a water body and cried for help. Her
neighbor again brought her to the Burdwan Medical
College Hospital and this time a F.I.R was lodged against
the accused persons under 498A. Chinmoyee also lodged a
case under the PWDVA for certain relief and compensation.
When the matter came up to the relevant court, the accused
did not turn up and the case was heard ex parté. The court,
after going through the oral evidence, passed order on 27th
November 2008, to the effect that a) Chinmoyee would get
compensation worth Rs. 50,000/ and Rs. 50,000/ for
medical treatment within 2 months, b) she would also get
maintenance of Rs. 3000/per month for herself and her
children from the day of the order, c) enjoy the right to
share residence with the husband. But Tarun showed no
intention to comply with the order. Later, in February 2009,
the PO had filed an execution case. Tarun then appeared at
the court and agreed out-of-court to pay Rs. 2 lakh as
compensation and return stridhan property following
326
divorce and withdrawal of the case. The divorce application
is pending in the court and hence the matter is yet not
resolved. Issues like maintenance grant for the two
daughters living with Chinmoyee or their right to father’s
property will also crop up later. In spite of such legal
complications, Chinmoyee has by now learned the process
of seeking justice and she is now helping others to file
cases under the PWDVA.
Case 5 The case of Basanti (Case no C/332/08 at the court
of CJM, Burdwan), an aged lady with an ailing non-earning
husband, was heard ex parté. Basanti and her husband were
driven out of their own house 4 years back by their son
Swarup, a schoolteacher, who later put pressure on them to
transfer the property in his name. The matter was initially
referred to the leaders of Communist Party of India
(Marxists) who did not show any interest, as Swarup
himself was a member of this party. Hence, Basanti filed a
domestic violence case and sought right to residence,
maintenance of Rs. 6,000/per month and compensation
worth Rs. one lakh for ill treatment. The court on the basis
of oral evidences of the victim declared her a ‘victim of
domestic violence’ and allowed the petitioner to get a)
maintenance grant of Rs 3,000/per month from the
respondent, b) compensation worth Rs.10,000/ for mental
and physical torture and c) right to residence. The
respondent is further directed to handover peacefully the
possession of the house and not to disturb and dispossess
the petitioner from the said accommodation. But Swarup
showed no intention of honoring the verdict. Basanti then
filed an execution case (No 241/9) at the same court in
August 2009. Since then, there were 11 court hearings. But
Basanti and her husband are still living in a rented house.
Swarup also assaulted them physically. The old couple does
not know what awaits them next.
Case 6 The case of Hiramoni of Kalna is much delicate.
She got married to Basudev in 2001. When Basudev
committed suicide in 2007, her in-laws drove her including
her two sons out of the house. As she had no local support
to claim her rights, she had to take shelter at her father’s
house. The Kalna police station also did not entertain any
complain against the in-laws, who are considered ‘power-
ful’ in the locality. She is now claiming her right to
maintenance as well as residence in matrimonial home
under the new law and as per the Hindu Succession
(Amendment) Act 2005, she (along her sons) is also
entitled to her share of the property of the father-in-law.
But, as in the case of Rubina, she is fighting a long battle to
secure her legal rights.
Case 7 Moumita of Tikorhat, Burdwan had lodged a
complaint against her husband who failed to protect her
J Fam Viol (2011) 26:319–330
from ill treatment of mother-in-law. Moumita had no
complaint against her husband who is a government
employee. Being the only son of the family, her husband
also did not prefer to leave her widow mother, although he
had sympathy for his wife. Moumita tried time and again to
draw the attention of local leaders of CPI (M), as leaders of
this ruling political party in Bengal are often seen in
intervening in social issues. But Moumita did not get any
support for her case, as her mother-in-law was an influential
leader of women wing of the same party. Failing to stop
violence, she left home and filed a case under the new law.
When the CJM send a Memo to Moumita’s husband, they
were forced to reach an out-of-court settlement mutually.
Moumita then divorced her husband after receiving stridhan
property and monetary compensation.
Case 8 Sulekha of Burdwan town lodged a case against her
handicapped son. She brought charges of ill treatment and
lack of adequate maintenance by her son. But she failed to
prove the charges at the court. During hearing Sulekha
revealed that the real intention for filing the case was
different. She wanted to sell her house, developed by her
son by taking a loan, and give the money to her son-in-law
for a business. When Sulekha’s daughter-in-law filed
another false case of physical abuse against the son-in-law
in question, both the parties agreed to reach a compromise
to part with the house, although the matter could have been
solved otherwise.
Analysis of Case Studies
Even though we need to follow some of these cases a little
further to know the extent to which the victims would be
able to obtain ‘justice’ ultimately, these cases nevertheless
suggest the following similarities, differences and possible
trend:
a) Belated and Costly Delivery of Justice
The promise of disposing a case within 60 days from the
first date of hearing could hardly be fulfilled5 even though
most of the judgments in the lower courts in Burdwan have
gone in favour of the victims. Yet, it is true that as
compared to others, domestic violence cases are resolved
more quickly. It is worth noting here that up to July 2010, a
total of 309 domestic violence cases remained pending in
Burdwan and only 33 cases were solved in 2009–10. One
5
The CJM of Burdwan has argued that the time frame should be 60
‘working days’ and not just 60 days. It has also been observed that the
judges often express their anguish to register a case within a very short
period of time.
J Fam Viol (2011) 26:319–330
cannot at the same time put the blame on overburdened
judiciary lacking infrastructure seriously. Thus, a total of
22, 643 cases in Burdwan are pending at different courts up
to July 2010 and a limited number of available judges with
scanty staff have to handle the pressure. There is equally no
guidelines and training to judicial magistrates on different
aspects of the new law.
The judicial process of handling a PWDVA case is also
not bereft of additional trouble. Thus, the judges in
Burdwan expect the POs to conduct investigation before
filing a case. But the rules does not provide for such option.
Also the quantum of stridhan property becomes a matter of
serious dispute in the absence of solid evidences. Moreover,
a victim is supposed to hire a ‘good’ lawyer to defend her
case well particularly in higher courts. As domestic battles
are dragged to higher and higher courts, things do not look
as rosy as they were thought to be! Again, the option to
seek protection under the new law has not really widened
for many victims hailing particularly from rural areas. This
is mainly because in many instances it was the lawyers of
the victims who have directed them to file another case
under the new law. In response to a query on the role of
lawyers to fight cases under the PWDVA, one of the
lawyers at the CJM court in Burdwan told us, ‘How would
the lawyers survive if the victims approach the PO directly
and fight their cases with free legal aid’?
Moreover, in spite of several positive verdicts by the
judges, the implementation of those orders appears to be a
very complicated process and here the victims face tough
legal hurdles. For many of the victims, sluggish implemen-
tation of court orders and lengthy legal battles are
discouraging. Rubina may continue her fight with the
support of her father who is a lawyer. But for many others,
this may not be a possibility. We have seen that delay in
implementing protection/maintenance orders has added to
the misery of the victims and exposed Pampa and Basanti
to more violence. This is in spite of the fact that in the case
of Smt. Maya Devi v. State of NCT of Delhi, the Delhi
High Court had passed a landmark judgment by dismissing
a writ petition under Article 227 of the Constitution that
states that ‘procedure for appeal under the PWDVA must
first be used before approaching higher courts through writ
or appellate jurisdictions’ (Lawyers Collective 2009).
Often the judges are confused about the quantum of
punishment to be given to a person who has not complied
with the earlier order. This is due to the fact that judges
consider ‘protection orders’ different from maintenance,
residence, monetary relief and custody orders and the Act
does list them under different categories. But when the rules
were framed later to implement the law, such differences
were ignored by stating that ‘any resistance to the
enforcement of the orders of the court under the Act…
shall be deemed to be a breach of protection order’. The
327
victim may however file another case for non-execution of
the court order. It is here that courts delay the matter as in
the case of Basanti. Again, the legal option to punish an
offender for repeating domestic violence following ‘protec-
tion order’ is limited because victims mostly abandon their
matrimonial home before filing a case. Lawyers, therefore
suggest clients seeking only monetary compensation from
husband to file case under 125 CRPC and not under the
new law. It may also be noted that Kabita was persuaded to
reach a compromise and start conjugal relation even though
her husband did not comply with the protection order fully.
This vindicates the position that PWDVC attempts to settle
domestic violence within the existing familial structure and
may not help those who lost all hope of reunion.
Our respondents have also noticed differences in the
approach of different courts. It is obvious that in the
absence of clear guideline to the judges, subjective
interpretations will occur. While the lower courts appear
to be victim-friendly, some of the higher courts are
‘bureaucratic’ in nature taking much time to settle a dispute.
Such differences not only impinge on the process of court
proceedings but also influence the outcome of a verdict.
b) Negative Role of Police
The apathetic and often negative roles of the police to stand
by the sufferings of the victims and implement judicial
orders have been a major hurdle in providing timely and
needed justice to women. The experiences of Rubina,
Pampa and Basanti demonstrate this. Ironically, there are
charges of corruption against the police. A clear case of
such a collision by Asansol police was brought to the notice
of the PO; but Rubina and her father did not lodge any
formal complaint to avoid further pestering. In certain
instances, police seem to be reluctant to act against any
influential person. Contrarily, persons with strong political
clout or economic standing can influence police to act in
their favour. Had there been some action on the part of the
police, the offenders would have been forced to provide
protection/maintenance at least initially. This would have
strengthened the case of victim in the society. In reality,
therefore, women filing cases under the act have to fend for
their own safety. PWDVA suggests a new role of police as
the ‘savior’ of victim. Yet, the perceived notion of police as
the ‘power to punish’ clashes with this new role.
Moreover, the police often seem to be confused about
their duty and obligation in ‘protecting’ a victim and seek
suggestions from the POs for intervening into the complex
and critical domestic sphere. It may be noted that police can
also file cases under the new Act and initiate action on their
own. Yet, police have not filed a single case in the district
of Burdwan and they have in certain cases rather referred
the matter to the PO.
328
c) Apathy of the Society at Large
The apathy of the society at large to stand by the sufferings
of a victim of domestic violence is a major hurdle for
resolving any dispute. In the absence of NGOs providing
the needed support to the victims, the role of neighbors and
other secondary groups becomes pertinent. Yet, none of the
victims, whom we interviewed, received timely help from
their relatives, neighbors and even political elites. Chin-
moyee’s husband and in-laws tried to kill her twice. In both
instances, neighbors finally rescued her though they did not
prevent the persons to commit the crime. Rather, Chin-
moyee’s husband was allowed to reach a compromise to
avoid police case in the first instance. In other words, the
civil society of Burdwan prefers to consider domestic
violence as ‘family affairs’, and thereby normally ignores
them (and other types of gender violence). As a corollary,
there is little socio-political action in Burdwan to prevent
such violence. This forces the victims, as in the case of
many of our respondents, to leave matrimonial home and
take shelter in parental home. In the Indian condition, if a
victim fails to garner such support in view of the poor
economic conditions of the parents or other relatives, she is
left to the mercy of the abusive husband to continue a
painful life. It is in this context that PWDVA has failed to
rescue the victims by implementing court orders or
providing quick justice to the victim.
Lack of civil society actions should also be seen in the
wider context of prevailing social structure in Burdwan. In
the predominantly patriarchal society, increasing indexes of
socio-economic development did not alter traditional
notions related to say male child (case of Kabita and
Chinmoyee), dowry (case of Rubina and Kabita) or AIDS
(case of Pampa). Prevalence of a traditional social structure
however did not prevent sons to torture parents over
property issue (case of Basanti). Moreover, cases filed
under the new law in Burdwan fall within the category of
‘physical’ and ‘economic’ violence. This is not a mere
coincidence. We may also interpret the absence of cases on
sexual and emotional violence or violence committed by
parents in the wider context of Indian social structure and
value preferences. This could be due to the fact that the
victims living mostly within the joint family system have
failed to garner mental and economic strength to lodge
complain. Hence, the law just does not take into account the
realities of the joint family system in India where even
female members of the family heap both physical and
emotional aggression against a woman.
d) Administrative Problems
Besides such limitations, the Act is also not very clear
about certain other modalities for its effective implementa-
J Fam Viol (2011) 26:319–330
tion. As such, the PO, who assists the aggrieved person to
file a case, is not informed about the outcome of any case
unless a ‘protection order’ is issued. Again, it is not
mandatory on the part of the state governments to employ
sufficient number of POs at the local levels, pay them
adequately or train them. How would one expect such POs
to be committed to the cause of women? Surprisingly, the
POs appointed in West Bengal are paid only Rs, 10,000 per
month including travel allowance. This is discouraging for
many POs. They also have to function from the office of
the District Social Welfare, which is already burdened with
several delicate tasks. Quite necessarily, lack of infra-
structural facilities impinges on the process of investiga-
tion/implementation of a case.
Absence of NGOs as Service Providers (SPs) has
aggravated the problem. In the absence of SPs in Burdwan
(and all over Bengal), court orders related to protection/
maintenance are hardly pursued. In the absence of either
community support or the support of NGOs, safety of a
victim in an abusive matrimonial home cannot be guaran-
teed. If NGOs in West Bengal fail to stand by the sufferings
of the victims of domestic violence for want of financial
incentives, it is also a pointer to the poor state of civil
society activism in Bengal (Ghosh 2009). A Protection
Officer, therefore, has raised a valid question: ‘How is it
feasible for the POs to take care of the interest of any victim
or prepare a ‘safety plan’sitting at least 100 Km away
unless the local police station or Service Provider does the
needful’?
e) Problems Regarding Right to Residence of Wives in Shared
Household
It also appears that the provision of the PWDVA regarding
right to residence of wives in ‘shared household’ has some
limitations. The Act defines ‘shared household’ as a
household where the aggrieved person ‘lives or at any
stage has lived in a domestic relationship either singly or
along with the respondent’. Rubina’s husband had tried to
undo this provision by just shifting to a rented house before
the separation. Though, in this context, Rubina won in
Kolkata High Court as she did reside in matrimonial home
after marriage, the same may not be true for some other
cases. Thus, if an accused sell a matrimonial home or leave
a rented house/official accommodation after separation, it
would be difficult for a victim to get ‘residential right’. The
court may then only force the accused to ‘ensure any other
suitable alternative accommodation’ to the victim. But here
again, legal procedures may complicate and delay the
decision regarding ‘suitability’ of an accommodation.
It may be noted that as per the judgment of Indian
Supreme Court (S. R. Batra v. Taruna Batra, 2007), an
aggrieved wife may only claim her share in the property
J Fam Viol (2011) 26:319–330
owned or possessed by her husband, and consequently a wife
has no right on property owned by her in-laws or owned by a
third party (company/office) (Lawyers Collective 2009). The
apex court has observed that unlike in England where the
rights of spouses to the matrimonial home was governed by
the Matrimonial Homes Act, 1967, no such right exists in
India. This judgment has been a major impediment to the
effective implementation of PWDVA. The right to resi-
dence for a woman does not automatically translate into a
right of ownership to the residential property.
f) Apathy Towards Counseling and Other Services
The experience of Burdwan district also demonstrates that
not a single of the 320 women seeking ‘protection’ under
the new law sought any counseling service to settle matters.
There are a whole lot of domestic issues, which the new
law cannot take up unless the aggrieved parties see each
other. For instance, ‘emotional’ insults of a wife by
husband or suppression of the rights of a girl child by
parents cannot be solved without counseling. Again, how
would the stakeholders ensure the safety of a victim in a
house where she was subjected to severe mental and
physical torture? But, from the victim’s point of view,
these issues just cannot be resolved through consultation or
counseling. The denial is due to the fact that the victims
have lost all hope to go back to their matrimonial family.
Neither do they expect the POs or the police to change the
situation in their favor. The issue of ‘protection’ of the
victim, therefore, boils down to mainly seeking ‘economic
compensation’ from the separated husband or son. This
partially unwraps the spirit of the new law to settle many
types of domestic subjugation or exploitation of women/
girls through counseling and persuasion.
Again the option of ‘free legal aid’ to the victims remained
almost on paper as women filing such cases had approached
the PO through their respective lawyers. Similarly, victims
hardly sought shelter or medical facilities from the govern-
ment. These negative responses could be due to the fact that
the victims of domestic violence in Burdwan do not consider
certain state sponsored services like shelter in home as
alternative to the traditional services provided by family and
kins. Alternately, one may argue that victims have less faith
on the quality of services provided by state agencies.
g) Other Problems
There are many other intricate problems associated with the
process of implementation of the act. Advocates and POs
have noted inadequacies like failure to mandate criminal
penalties for abuse along with its civil measures, its failure
to explicitly provide a maximum duration of appellate
hearings which delays women’s grant of relief, and a basic
329
lack of follow-up action among the victims, officials and
organizations. All these also endanger the safety of a
woman in a ‘home’ where her rights are violated with
impunity. What guarantee the concerned authority may
provide to ‘protect’ her rights for openly speaking against
her husband and others? The cases of Pampa and Basanti
clearly exemplify this fear. As a corollary, mostly those,
who have left their matrimonial homes, are filing cases
under the Act.
h) False Case Filing
In some of the instances (case of Moumita and Sulekha),
however, PWDVA is found to target male relatives even
though the offender is female. Filings of a few of such false
cases however do not represent a trend in itself. Yet, they
are a testimony to the fact that provisions of PWDVA may
encourage false case filing against male relatives also. It
should also be recognized that the new law has led
Moumita to finally seek divorce to get rid of her abusive
mother-in-law even though she wanted her husband to live
separately. This proves the limits of the new law to settle
domestic issues within the family structure.
Conclusion
PWDVA, being a specially drafted law, certainly has many
positive aspects. It has provided the victims an easy scope
to file a case, win their case at lower courts and send a
message to the community. Yet, it appears that PWDVA has
not been able to check domestic violence per se or provide
immediate protection to the victims. Lack of sensitivity on
the part of the administration to understand the law,
implement court orders and punish the offenders reduces
PWDVA to the status of any common law in the Indian
context. Also, its popularity is restricted to certain urban
victims who have already filed cases under the old law and
is seeking limited types of protection or compensation.
Moreover, the types of cases filed leave out many options
available to the victims of domestic violence within joint
family. This is due to the fact that women are conditioned
to tolerate, allow and even rationalize such violence in
India. For the Act to become popular and widely useful, we
need to initiate actions to change the public mindset
including the views and actions of stakeholders like NGOs,
police and judiciary. The prevailing infrastructure for the
justice-delivery system should also be upgraded to accom-
modate local and specific needs of the victims. The law
needs revision to a) clearly explain many technical aspects
and particularly the option of punishment for non-execution
of court orders, b) suggest steps for speedy disposal of
execution cases, c) fix responsibilities of police, and d) clear
330
guidelines including financial responsibility of the adminis-
tration. If the lawmakers are serious about protecting the
rights of women in the domestic sphere, they should create
appropriate institutions and mechanisms to realize the goal.
We should keep in mind that domestic violence inflicted upon
women is systematic and structural. Hence, the problem
cannot be tackled without addressing the basic question of
power inequality under patriarchy more seriously.
Acknowledgements The authors acknowledge the helpful contribu-
tions of several participants of this research including staff of DSW
office, the anonymous reviewers and the editorial board of Journal of
Family Violence in writing this paper.
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