Implementation of the Protection of Women from Domestic Violence Act (PWDVA), 2005 during Lockdown
The first half of the article traces the history of the PWDVA and other IPC sections dealing with dowry death. The Act's provisions are detailed in the second portion. This section also covers the procedures that must be followed in order to comply with the Act. "The psychological toll on women facing domestic violence has been intensified by being locked in the same space as their abusers during the lockdown." External forms of support, such as family, friends, housing, and income, are critical in evaluating a woman's capacity to escape an abusive relationship or household. This article examines how the lockdown and the pandemic have hampered women's access to these resources, with a focus on the right of residence and shelter home. Finally, while establishing support systems for emergency events such as natural disasters and pandemics, women and girls' disproportionate access to resources must be taken into account." The paper concludes by looking at how the Act was implemented during the lockdown, how the state machinery failed to perform its tasks, and how NGOs stepped in to offer services that the state was intended to give.
I. Introduction
Domestic violence, as the name implies, is violence perpetrated by an intimate partner or family members in the privacy of their own home. Almost one-third of all women who have ever been in a relationship say they have been subjected to physical and/or sexual violence by their intimate partner at some point in their lives.3 Last year, intimate partners or family members were accountable for 58% of all female homicides reported worldwide.4 Clearly, the most dangerous place for a woman is her own house.5 There has been a considerable increase in the incidence of domestic violence worldwide since the early days of pandemic-related lockdowns. 6Domestic violence and cybercrime against women are on the rise around the world, but violence against women in public situations, such as harassment, sexual assault, and rape, is on the down.7 There is a convincing correlation between decreased mobility in public settings, including workplaces8, and the subsequent confinement of women in their houses with other family members, as well as an increase in domestic violence.
Home, which is supposed to be the safest place for women and girls, turns out to be the most dangerous place for them, with crimes such as dowry death, dowry deaths, incest, child marriages, sex-selection abortion, domestic violence, and so on taking place in their own homes, and the abuser being someone close and renowned to them. Women's fundamental rights to equality, life, dignity, personal liberty, physical integrity, and health are all violated when they are subjected to any form of violence. Do these basic human rights exist in the private sphere of one's own home? Domestic violence, sometimes known as intimate relationship violence, is common, but it also includes abuse of children and the elderly, as well as abuse by any household member.9
At some point in their lives, approximately 35% of women (1 in every 3 women) have experienced physical and/or sexual intimate partner abuse or sexual assault by a non-partner. Domestic abuse is the most common crime against women, according to the NCRB, with 31.9 per cent of instances being categorized as "cruelty by husband or his relatives.10" In addition, every 1.7 minutes, a crime against women is reported in India, and every 4.4 minutes,11 a woman is subjected to domestic abuse. According to a 2015-2016 NFHS study, about 30% of married Indian women between the ages of 15 and 49 years are subjected to physical and sexual assault, with just 24% reporting incidents or seeking assistance.12
II. What is legal recourse avai-lable to a woman facing domestic violence prior to the enactment of PWDVA?
Prior to the establishment of PWDVA in 2005, abused women had two legal options: civil (personal laws) and criminal (criminal) remedies (IPC). A woman seeking civil remedies such as maintenance, restitution of conjugal rights, custody of her children, or divorce had to file two distinct petitions in separate courts: a Section 125 CrPC application for support before the Magistrate and a divorce petition before the Family Court. The woman suffered a great deal as a result of the legal process. Interestingly, the aggrieved woman would bring to the Court's attention the domestic abuse she was subjected to through her petition; nonetheless, it went disregarded, and only reliefs were awarded. These legal laws provided her with some relief, but they did not protect her from the brutality she was subjected to. In the 1980s, mothers of young women who were burned alive for dowry, as well as women's organizations, staged widespread protests. This resulted in the introduction of Sections 498A and 304B of the IPC in 1983 and 1986, respectively, which deemed illegal cruelty in the matrimonial home and established a presumption of "dowry death" in the case of an unnatural death within seven years of marriage and it can be shown that she was subjected to harassment or dowry demands shortly before her death. It's worth noting that these penalties were intended to decriminalize domestic abuse. There were, however, no quick legal remedies available for victims/survivors of such violence, such as protection from future assault, financial stability, or child custody. Section 498 A may be used while she was alive, but only after her death could section 304 B be used. According to reports, when a married woman dies, the entire Criminal Justice System is triggered to provide her with justice, but the woman is already dead; therefore, there is no genuine justice. Unfortunately, when a woman seeks justice through the legal system, she is accused of abusing the system, as many 498 A cases result in acquittal due to a lack of proof. Unfortunately, while courts condemn husbands in dowry deaths, a woman's use of section 498 A when she fears for her safety or demands her part of the matrimonial house earns her the label of "disgruntled wife." This is a woman's path from life to death, from section 498 A to 304 B of the IPC13. Bridging this gap was essential. Mothers, daughters, sisters, and women in live-in relationships were not included in the previous legal statutes, which only addressed violence in married relationships.
III. PWDVA was enacted in 2005, and PWDVR came into force on 26/10/2006
The PWDVA 2005 was enacted to provide adequate protection for women's rights provided by the Constitution, particularly for those who are victims of domestic violence of any form. It was conceived to prevent the abuser from committing violence while also offering relief to the victim and punitive elements to ensure that the Court's orders were implemented.
PWDVA is a law that protects a woman's right to a safe home, the right to live in a shared household, and the right to seek emergency relief. It is a gender-specific law that is aimed primarily at protecting women and children. Women and children (boys up to the age of eighteen, while girls have no age limit) who have been the victims of domestic violence can file a complaint under this Act. Any adult male who is or has been in a domestic relationship with the aggrieved person, as well as the husband or male partner's family, might be named in the complaint. However, in the case of Hiral P Harsora vs Kusum Harsora & Ors.,14 the Supreme Court mandated the elimination of the phrase "adult male," paving the way for prosecution of anyone, regardless of gender or age, who assaults or harasses a husband's relative. As a result, a woman can now be designated as the lone Respondent.
Domestic violence was defined as physical, sexual, verbal, emotional, and financial abuses, as well as harms and threats to her health and safety, as well as harm to her physical and mental well-being. Domestic partnerships, which encompassed any relationships based on consanguinity, marriage, adoption, and even relationships that were "in the nature of marriage," were covered in the PWDVA's scope. Married women, daughters, widows, mothers, sisters, women in bigamous and fraudulent marriages, and women in live-in relationships are all covered by the legislation. It also safeguarded all women in domestic relationships and their right to live in the "shared household," even though no legal title was attached to it. This does not give women a substantive right to property, but it does protect women from being evicted.
The Officer of Protection Officer ('PO') was founded by this Act to help women get access to justice. Non-governmental groups were also granted statutory status as Service Providers. Medical Facilities and Shelter Homes were also required by law to give medical assistance and shelter to troubled women. Police will take cognizance under section 498 A of the IPC and make daily diary entries and Legal Services Authorities to provide free legal aid to aggrieved women seeking justice. Magistrates, too, have a legislative obligation to give immediate assistance to women and to expedite the resolution of PWDVA cases within two months after the filing of the complaint by using their discretionary powers to adopt appropriate procedures.
PWDVA is a victim-friendly statute because an aggrieved woman can approach the Court by filling out FORM I on her own or through a Protection Officer (Domestic Incident Report). FORM V (A davit), FORM III (Application U/sec 12), and FORM II (Application U/sec 12) (Safety Plan). A protection order, often known as a "Stop Abuse" order, is a court order that prohibits domestic violence in any form. When the aggrieved person is about to be evicted or has already been evicted and wants to return to the joint household, a Residence Order is granted. She may also seek an injunction to prevent the Respondent from entering the shared dwelling.
The Court has no authority to order a woman to leave the shared household. Payment for losses and expenses incurred as a result of domestic abuse, as well as meeting daily requirements and expenses, is referred to as monetary relief.
Temporary Custody Orders solely deal with children's temporary custody as a last resort to guarantee their safety and best interests. In addition to monetary reliefs, a Compensation Order is issued to recompense the lady for mental and emotional pain. On the basis of an affidavit, prima facie disclosure of domestic abuse, or if the Respondent is likely to perpetrate domestic violence, the Magistrate may issue an ex-parte ad interim order.
IV. Understanding PWDVA in the context of lockdown
The COVID-19 epidemic caused a health crisis as well as an economic crisis, threatening the livelihoods of millions of people, and the government urged citizens to 'Stay Home, Stay Safe.' However, for many women, the terms "safe" and "home" are not interchangeable. Domestic violence arises as a big problem during the lockdown, and unfortunately, much less attention has been paid to this third epidemic that continues to lurk in the shadows. According to the United Nations, the pandemic's combination of economic and social pressures, as well as other lockdown measures, has drastically increased the number of women encountering domestic violence, as self-quarantine keeps them in constant proximity to their abusers.15 Domestic violence has been fostered by social alienation and stay-at-home directives in India as well. It has also placed a disproportionate amount of responsibility on women to care for the home and children. Living with an abusive partner also jeopardizes a woman's sexual health, making contraception, pregnancy kits, and abortion services more difficult to obtain. Staying at home is also a public health issue, as according to the NFHS research, 42 per cent of males justified assaulting their spouses. Domestic violence complaints reached a ten-year high in COVID-19, according to a report released on June 22, 2020, which also stated that 86 per cent of women who experienced violence never sought help, and 77 per cent of victims did not tell anyone about the occurrences. All stakeholders, according to PWDVA, are responsible for assisting aggrieved women and children in obtaining justice.
It is difficult for any woman to disclose domestic violence in normal conditions, but COVID 19 has made it even more difficult, with courts closed and police enforcing lockdown policies. The online Counselling cells and Helplines came to the aid of the women as the number of domestic violence incidents increased. Although counselling assisted the women in developing coping skills, a considerable percentage of women required prompt action from the Protection Officers, Police, and Courts.
As living in the society, we came across or personally witnessed severe physical abuse, women being thrown out of their shared homes, child marriages, sexual violence against women and children, denial of custody of small children, and inaccessibility to contraceptives, abortions, sanitary napkins, and other services; for them, economic and emotional abuse were secondary. Domestic violence has taken a back seat with Courts, and all NGOs providing support services have been shut down, it has been noticed.
Shelter Homes are not accepting admissions, and medical facilities' priorities have switched to respond to COVID 19 cases, with police on the field to preserve social separation in public spaces. To support the psychological needs of women and children, a number of Helplines have been established.
V. Diminishing the Possibility of Escape
The lockdown has inflicted a deadly blow on domestic violence victims by making it far more difficult for them to escape their abusers. First, victims frequently seek assistance from their community and friends who can provide relief or shelter because they are afraid of being caught in the process of seeking help from the police, which could aggravate the violence.16 These choices are unavailable due to the shutdown. Consider Parvathi's situation: every time her husband beat her up; she would run into the lanes of her slum and cry for rescue from her neighbours. However, she is unable to do so at the moment because the entrance to her street is blocked by a barricade. 17
Second, as we move down the socio-economic ladder, the resources required to report grow harder to obtain. In India, the gender disparity in access to the internet and mobile phones is among the greatest in the world, and it is distorted the most for the socio-economically disadvantaged.18 Even if a woman has access to a phone, the lockdown means she is constantly monitored at home by her abuser, and she may not be able to call the police at all.
Finally, police negligence and refusal to intervene in incidents of domestic violence against women is well-known.19 Given the current strain on police to guarantee that people don't leave their homes, their indifference to the misery of women in general, and socio-economically poor women in particular, is only going to get worse. Domestic violence victims are struggling more than ever before as a result of all of these causes, with no way to escape their abuser.
VI. Disinterested and in Denial: The Approach of the Government
The Indian government, on the other hand, appears to be not just unconcerned in tackling the problem but also refuses that it exists. Smriti Irani, one of only three female ministers in the present Union Cabinet who also functions as Minister of Women and Child Development, issued a statement rejecting assertions that the lockdown has resulted in an increase in domestic abuse complaints.20 This is despite the fact that there is a wealth of data from reliable sources that support the opposite point of view. The Prime Minister, who speaks to the country in live sessions from time to time, has made no statement about domestic violence. Furthermore, despite the well-established link between alcohol consumption and domestic abuse21, the decision to make liquor more freely available during the lockdown was made without engagement with the relevant parties.
Victims have benefitted from the involvement of high courts, which have demanded action from state officials and issued directives to address the rise in domestic violence. The Madras High Court has previously waived the Domestic Incidence Report requirement under the Protection of Women from Domestic Violence Act, 2005, so that the offence could be prosecuted quickly.22
It also contacted the Health Department, which informed the Court that an effective response mechanism had been put in place, with Anganwadi staff working as coordinators to elevate reports regarding domestic violence and counsellors appointed as protection officers.23 The Delhi High Court has ordered the Delhi government to put a stop to domestic violence in the city.24
The Jammu and Kashmir High Court also issued an order proposing a number of steps to combat domestic violence, including the establishment of a dedicated fund, the identification of grocery stores as reporting locations, and the classification of hostels as shelter homes.25It's encouraging to see that the courts have stepped in to fulfil their part of the responsibility. The executive, however, is still responsible for implementation. Unfortunately, there is no method where there is no will.
Without using an intersectional gender lens, it is impossible to judge the consequences or success of the lockdown. Even if it significantly reduces the spread of Covid-19, it is only a half-measure in that it has exacerbated one problem while solving another. The problem, as is often the case, is not with the policy (of lockdown), but with the policymaker and a policymaker who is unable to account for the realities of gender relations at home will almost certainly fail to implement measures that will make the policy a true success.
Finally, PWDVA, in my opinion, is a useful law that should be carefully enforced in the interests of women and children. Under essential services, the Protection Officers should be notified. The National and State Commissions for Women should also keep an eye on the PWDVA's implementation.
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Footnotes
1. Author is a Research Scholar at Jaipur National Law University (Rajasthan), India.
2. Author is a Research Scholar at Jagannath University, Jaipur (Rajasthan), India.
3. World Health Organization, Violence against women, available at; http://www.who.int/news-room/fact-sheets/detail/violence-against-women ↩
4. Ibid, Preface, 30,000 women are killed by their intimate partners (not including those killed by family members) ↩
5. United Nations Report (2018) on Gender Related Killings of Women and Children. ↩
6. On 6 April, 2020, the United Nations Secretary-General, Antonio Guterres, called for a“ceasefi re” to address the “horrifying global surge in domestic violence.” ↩
7. In India, the National Commission for Women’s Complaint and Investigation Cell registered 392 complaints of domestic violence in May 2020 compared to 266 in May 2019. There were 73 cyber-crime complaints involving women in May 2020, compared to 49 in May 2019. Rape and sexual assault complaints decreased 66% - from 163 in May 2019 to 54 in May 2020. In 2019, they had decreased 17% from 198 in May 2018. ↩
8. The term workspace and not ‘oce’ has been used since a much larger section of the female workforce in the country belongs to the unorganized sector. ↩
9. https://apps.who.int/iris/bitstream/handle/10665/77432/WHO_RHR_12.36_eng.pdf;jsessionid =C875FDC2858E9DB90226115FC50DBBAC?sequence=1 ↩
10. Observer Researcher Foundation, available at: https://www.orfonline.org/expert-speak/addressing-domestic-violence-a-forgotten-agendawhile-locking-india-down-64301/ ↩
11. Crime in India Report 2018 published by National Crime Record Bureau (NCRB) ↩
12. The National Family Health Survey 2015-16 (NFHS-4), available at: http://rchiips.org/NFHS/pdf/NFHS4/India.pdf ↩
13. Section 304 B Of Indian Penal Code 1872 ↩
14. CIVIL APPEAL NO.10084 of 2016 (ARISING OUT OF SLP (CIVIL) NO. 9132 OF 2015) ↩
15. Coronavirus: UN chief urges governments to address ‘horrifying global surge’ in domestic violence https://scroll.in/latest/958335/coronavirus-un-chief-urges-governments-to-addresshorrifying-global-surge-in-domestic-violence ↩
16. A Sev’er, Recent or imminent separation and intimate violence against women: A conceptual overview and some Canadian examples, 3(6) Violence Against Women, 566-589 (1997) <https:// pubmed.ncbi.nlm.nih.gov/12295554/> ↩
17. Rukmini S, Locked down with abusers: India sees surge in domestic violence (Al Jazeera, April 18, 2020) https://www.aljazeera.com/news/2020/04/lock ed-abusers-india-domesticviolence-surge-200415092 014621.html ↩
18. Karishma Mehrotra, Internet in India: Gaping gender gap (Indian Express, August 8, 2018) https://indianexpress.com/article/technology/tech-ne ws-technology/internet-in-indiagaping-gender-gap-5 296818/ ↩
19. Chethan Kumar, In India, 1 woman complains of police apathy every 2 hours, (Times of India, Nov 2, 2018), <https://timesofi ndia.indiatimes.com/india/in-india-1-woman-complainsof-police-apathy-every-2-hours/articleshow/66471290.cms> ↩
20. PTI, Union Minister Smriti Irani debunks claims of lockdown leading to increase in domestic violence (The Times of India, June 8, 2020) <https://timesofi ndia.indiatimes.com/india/unionminister-smiriti-irani -debunks-claims-of-lockdown-leading-to-increase-in -domesticviolence/articleshow/76256622.cms> ↩
21. World Health Organisation, Intimate partner violence and alcohol, 2, <https://www.who.int/viol ence_injury_prevention/violence/world_report/factsheets/fs_intimate.pdf> ↩
22. HC comes to rescue of domestic violence victims (The Hindu, January 24, 2020) <https://www.thehin du.com/news/national/tamil-nadu/hc-comes-to-rescu e-of-domestic violencevictims/article30637796.ece> ↩
23. Effective steps taken to curb domestic violence during lockdown, TN tells Madras HC (The New Indian Express, April 25, 2020) <https://www.newind ianexpress.com/states/tamil-nadu/2020/apr/25/effecti ve-steps-taken-to-curb-domestic-violence-during-loc kdown-tn-tells-madrashc-2135296.html> ↩
24. HC tells Delhi government to curb cases of domestic violence amid Covid-19 lockdown (The New Indian Express, April 21, 2020) https://www.ne windianexpress.com/cities/delhi/2020/apr/21/hc-tells -delhi-government-to-curb-cases-of-domestic-violen ce-amid-covid-19- lockdown-2133126.html> ↩
25. Aishwarya Iyer, Jammu & Kashmir HC seeks report on steps to prevent domestic violence amid Covid-19 lockdown, (Bar and Bench, April 18, 2020) <https://www.barandbench.com/news/litigation/jk-hc-issues-notice-to-dept-of-social-welfare-and-jksls a-seeks-report-on-stepstaken-to-prevent-domestic-vi olence-during-covid-19-lockdown> ↩
- World Health Organization, Violence against women, available at; http://www.who.int/news-room/fact-sheets/detail/violence-against-women
- Ibid, Preface, 30,000 women are killed by their intimate partners (not including those killed by family members)
- United Nations Report (2018) on Gender Related Killings of Women and Children.
- On 6 April, 2020, the United Nations Secretary-General, Antonio Guterres, called for a“ceasefi re” to address the “horrifying global surge in domestic violence.”
- In India, the National Commission for Women’s Complaint and Investigation Cell registered 392 complaints of domestic violence in May 2020 compared to 266 in May 2019. There were 73 cyber-crime complaints involving women in May 2020, compared to 49 in May 2019. Rape and sexual assault complaints decreased 66% - from 163 in May 2019 to 54 in May 2020. In 2019, they had decreased 17% from 198 in May 2018.
- The term workspace and not ‘oce’ has been used since a much larger section of the female workforce in the country belongs to the unorganized sector.
- https://apps.who.int/iris/bitstream/handle/10665/77432/WHO_RHR_12.36_eng.pdf;jsessionid =C875FDC2858E9DB90226115FC50DBBAC?sequence=1
- Observer Researcher Foundation, available at: https://www.orfonline.org/expert-speak/addressing-domestic-violence-a-forgotten-agendawhile-locking-india-down-64301/
- Crime in India Report 2018 published by National Crime Record Bureau (NCRB)
- The National Family Health Survey 2015-16 (NFHS-4), available at: http://rchiips.org/NFHS/pdf/NFHS4/India.pdf
- Section 304 B Of Indian Penal Code 1872
- CIVIL APPEAL NO.10084 of 2016 (ARISING OUT OF SLP (CIVIL) NO. 9132 OF 2015)
- Coronavirus: UN chief urges governments to address ‘horrifying global surge’ in domestic violence https://scroll.in/latest/958335/coronavirus-un-chief-urges-governments-to-addresshorrifying-global-surge-in-domestic-violence
- A Sev’er, Recent or imminent separation and intimate violence against women: A conceptual overview and some Canadian examples, 3(6) Violence Against Women, 566-589 (1997) <https:// pubmed.ncbi.nlm.nih.gov/12295554/>
- Rukmini S, Locked down with abusers: India sees surge in domestic violence (Al Jazeera, April 18, 2020) https://www.aljazeera.com/news/2020/04/lock ed-abusers-india-domesticviolence-surge-200415092 014621.html
- Karishma Mehrotra, Internet in India: Gaping gender gap (Indian Express, August 8, 2018) https://indianexpress.com/article/technology/tech-ne ws-technology/internet-in-indiagaping-gender-gap-5 296818/
- Chethan Kumar, In India, 1 woman complains of police apathy every 2 hours, (Times of India, Nov 2, 2018), <https://timesofi ndia.indiatimes.com/india/in-india-1-woman-complainsof-police-apathy-every-2-hours/articleshow/66471290.cms>
- PTI, Union Minister Smriti Irani debunks claims of lockdown leading to increase in domestic violence (The Times of India, June 8, 2020) <https://timesofi ndia.indiatimes.com/india/unionminister-smiriti-irani -debunks-claims-of-lockdown-leading-to-increase-in -domesticviolence/articleshow/76256622.cms>
- World Health Organisation, Intimate partner violence and alcohol, 2, <https://www.who.int/viol ence_injury_prevention/violence/world_report/factsheets/fs_intimate.pdf>
- HC comes to rescue of domestic violence victims (The Hindu, January 24, 2020) <https://www.thehin du.com/news/national/tamil-nadu/hc-comes-to-rescu e-of-domestic violencevictims/article30637796.ece>
- Effective steps taken to curb domestic violence during lockdown, TN tells Madras HC (The New Indian Express, April 25, 2020) <https://www.newind ianexpress.com/states/tamil-nadu/2020/apr/25/effecti ve-steps-taken-to-curb-domestic-violence-during-loc kdown-tn-tells-madrashc-2135296.html>
- HC tells Delhi government to curb cases of domestic violence amid Covid-19 lockdown (The New Indian Express, April 21, 2020) https://www.ne windianexpress.com/cities/delhi/2020/apr/21/hc-tells -delhi-government-to-curb-cases-of-domestic-violen ce-amid-covid-19- lockdown-2133126.html>
- Aishwarya Iyer, Jammu & Kashmir HC seeks report on steps to prevent domestic violence amid Covid-19 lockdown, (Bar and Bench, April 18, 2020) <https://www.barandbench.com/news/litigation/jk-hc-issues-notice-to-dept-of-social-welfare-and-jksls a-seeks-report-on-stepstaken-to-prevent-domestic-vi olence-during-covid-19-lockdown>