CHAPTER!

INTRODUCTION

Outline

I. Background of the
II. Objectives of Research.
III. Hypothesis.
IV. Need for Present Study.
V. Review of Literature.
VI. Research Methodology
VII. Organisation of Study.

I. BACKGROUND OF THE STUDY

"^ woman feels as keenly, thinks as clearly, as a man. She in her

sphere work as useful as a man does in his. She has as much right to
her freedom- to develop her personality to the full—as a man. When
she marries she does not become the husband's servant but his equal
partner. If his work is more important in life of the community, her's
is more important in the life of the family. Neither can do without the
other. Neither is above the other or under the other. They are
equals. "- Lord Denning

Woman has always been an object of gross and severs violence

at the hands of man. Crime against women has existed invariably with
time and place. The types and trends of crime against her change with
the change in the mindset and techniques. They are accorded a lower
status in the society and are made and used as objects of man's
enjoyment and pleasure. Its culmination has been their regular
exploitation and victimization. On the continuation of this practice

' Lord Denning, "The Due Process of Law", p. 194,195 (Butterworths, London)
1981
exploiters became culturally violent, having opted violence as a way
oflife.^

The vulnerability of women in the country is since time

immemorial. The vulnerable person is one who has little choice or
capacity to escape pain and injury. A woman in the country has been
compelled to be a victim, and helpless and powerless and
consequently she is bound to suffer all injustice in silence. The abuse
of vulnerability is a situation, in which an individual has no
acceptable alternative but to submit to the abuse involved. This long
standing evil practice has been given legal responses in every era, but
still the processed subjugation has not put an end to her miseries, as
crime against her is an outcome of their long history of deprivation of
the socio-economic rights. The violence shackles her personality in to
pieces and disempowers her by making her more vulnerable, when it
is takes place in four walls of her own

Her life becomes tragic when she is un- safe within her
intimate relations. According to the myth of the family as a sanctuary
of tranquility of harmony, domestic violence is a veritable
incongruity, a contradiction in terms. This violence shatters the
peaceful image of home, the safety that kinship provides. This
domestic violence is found across nations and cultures world -wide.
Why all this miseries are in her life? Why she is subjected to violence
by this male dominated society? What are the reasons of these
deteriorating conditions? As a student of law, the researcher desires to
investigate in to the facts; hence the present topic is selected.

'Neglecting the Mother" J A.S.Anand's Address on International Women's Day

at Vigyan Bhavan New Delhi, March 8"" 2001
 At global level The Vienna Accord 1994 and the Beijing
Declaration and Platform for Action 1995 have acknowledged that
domestic violence is undoubtedly a human right issue. The United
Nations Committee on 'Convention on Elimination of All Forms of
Discriminations against Women' in its General Recommendations
has recommended that state parties should act to protect women
against violence of any kind especially that occurring within family.

The phenomenon of domestic violence in India is widely

prevalent but has remained invisible in the public domain. Criminal
law in the country has paid some attention towards such violence by
amending I.P.C. by Criminal Amendment Act of 1983 and 1986
inserting sec 498A and 304B. But yet there was paucity of Civil Law
which could address the domain of domestic violence in its entirety
with the vision of human right. The object of research work is an
attempt to consolidate the law on the point of various activities of
violence committed against the woman in domestic relationship. In
reality it is observed that implementation of constitutional mandate,
as interpreted by the Supreme Court regarding the gender justice and
dignity of women in terms of Article 21 of the Indian Constitution, is
still a distant hope irrespective of the number of legislations. The very
basic unequal relationship between male and female, man and women
in terms of power sharing, resources and dignity is tremendous.

Researcher finds that most of the studies on the subject of

violence against women are yet confined to socio-legal approach and
based on the books and law reports in the library but with growing
concern of human rights, the menace of domestic violence need to be
viewed in wider global humanitarian perspective. With this view the
researcher desired to study the entire gamut of domestic violence with
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all its perspectives with comparative approach in other legal systems
of the world. Researcher also desired to analyze the efforts of
legislators in drafting the piece of legislation for liberating women
from onslaughts of domestic violence, whether the efforts made by
the legislators would suffice in the context of prevailing conditions.

The legal framework and its effective implementation in fact

depend on the combination of various factors the researcher with
certain objective in mind intended to study the phenomenon of
domestic violence.

II. OBJECTIVES OF RESEARCH

a) To examine the concept of domestic violence in general and in

particular with reference to The Protection of Women from
Domestic Violence Act, 2005.
b) To assess the existing Constitutional mandates and statutory
provisions to curb the evil of domestic violence.
c) To examine the causes of domestic violence with reference to
Indian society.
d) To assess the administrative machinery and remedial
mechanism to curb the evil of domestic violence.
e) To provide critical analysis of The Protection of Women from
Domestic Violence Act, 2005 with reference to global human
right standards.
f) To provide conceptual and remedial reforms.
g) To examine the role of NGOs in the prevention of domestic
violence and enforcement of The Protection of Women from
Domestic Violence Act, 2005.
h) To provide a case study and survey of the data collected from
the Sangli District.

For the purpose of research with the above mentioned objective the
researcher had before hand assumptions or views formulated upon the
4
basis of the practical and life experiences and were required to be
tested upon the touchstone of the real facts for purposeful
investigation, to be helpful in giving the solutions. Those were as
follows
III. HYPOTHESES
a) Domestic violence is not always visible but a part and parcel of
the life of women in India.
b) Male dominance and greed for money are the major causes of
domestic violence.
c) Statutory provisions are not full proof, and do not regulate
various activities and conduct which are violative of human
rights of women.
d) Law is used against the women.
e) Attitudinal aspect of judiciary and administration affect
(positively or negatively) the enforcement of Law.
f) Non-formal system of justice (ADR) is more useful than the
formal system of justice in domestic violence matter.
g) Information and awareness has pivotal role in the
implementation of Law.
h) NGOs have a vital role in the prevention of domestic violence
as well as effective enforcement of The Protection of Women
from Domestic Violence Act, 2005.

IV. NEED FOR PRESENT STUDY

The legal response to the domestic violence in the country is not

recent one as the state efforts in the form of Criminal Amendments
Act in 1983 and 1986 made certain changes to include some form of
violence, within home punishable under section 498A, punishing a
husband and his relatives for perpetrating cruelty upon wives and
cruelty was defined broadly enough to encompass physical as well as
mental cruelty. Act of 1986 added in I.P.C.304B where unnatural
death of woman happens within 7 years of marriage and it is shown
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that she was harassed soon before death or in connection with dowry
by her husband or relatives, the accused would be deemed to have
caused her death. But until the passing of the said Act of 2005 law
was very unhelpfial when domestic violence was not linked with
dowry. Further the law addresses only the daughter- in - laws but the
situation of daughters, widows, old mothers within family and the
domestic violence faced by them was not addressed. With the passing
of present piece of legislation researcher felt it necessary to evaluate
the provisions of the same and give positive suggestions for better
implementation.

Researcher observed that most of the studies on the subject of

violence against women are yet confined to socio-legal approach and
based on the books and law reports in the library but with growing
concern of human rights the menace of domestic violence need to be
viewed in wider global humanitarian perspective. With this view the
researcher desires to study the entire gamut of domestic violence with
all its perspectives in comparative approach in other legal systems of
the world. Researcher also desires to analyze the efforts of legislators
in drafting the piece of legislation for liberating women from
onslaughts of domestic violence, whether the efforts made by the
legislators would suffice in the context of prevailing conditions.

V. REVIEW OF LITERATURE

Advancement of right of women has been the concern of world

community since the Second World War. The International Year of
Women, 1975 and the decade followed generated a momentum for
women concern throughout the world. In India many of the researches
have been made on the topics of gender issues, educational

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disparities, and job opportunities for women etc. In metropolitan areas
of Bombay or Delhi researches have been carried on the issues of
'Dowry and Violence against women' Ram Ahuja (1987) mentioned
in his book about the violence against women in the form of dowry
related offences and has identified characteristics associated with
dowry death. Ranjana Kumari has also made detailed investigation of
dowry related violence. In 'Brides are not for Burning: Dowry Deaths
in India' in 1989 and examining dowry victims in Delhi. Meen a
Seshu and Bhosale (1990) carried an analysis of cases in Sangli
district court registered under section 304B,306,498A dowry related
offences and found that large number of victims are of 20 to25 and
uneducated belonged to joint families and died within 2-5 years of
marriage. Dr. Revathi had studied 'Prevention of Domestic Violence:
A study with special reference to Dowry Related Offences.' With
object of making an in depth study of problem of domestic violence
in general and empirical study of dowry related offences in particular.

All the above available literature brings forth that the women's issues
have been the center of focus. The studies put forth 'her' problems of
discrimination, declining status in families and also the violence
against her. These studies point out the reality that the status of
women in spite of the education and economic stability and available
resources is yet found to move at negative end. The severity of
problem of violence against women inside family and outside family
in respect of women of all age groups, strata of family are growing in
unabated continuity. The magnitude can be counted on the basis of
reported cases but plight of women in rural areas is rarely reported
because of social sanctions. Hence the researcher undertook the
subject violence inside family as it is serious threat to the human
7
rights which are universal, natural, inalienable and most significant
for human dignity. Researcher desires to study the subject of domestic
violence with human rights perspective particularly with reference to
protection of women from domestic violence. With the passing of the
present piece of legislation i.e. The Protection of Women from
Domestic Violence Act 2005 which is comprehensive in its coverage
of types of domestic violence and providing prompt and urgent
remedies for women suffering domestic violence or even
apprehensions of its probabilities, still create certain doubts as to
applicability, implementation of its provisions, where Act provides
protection to the women who are or have been living in live in
relationship with the abuser. The wider concept of domestic violence
covering variety of acts can also be misused by women to threaten
their spouse or other in-law relations. The extensive powers of
Protection officers, offence being non-bail able and cognizable also
endangers in reality. These and many other contraventions in
application and implementation of the Act need to be assessed with
all the existing ground realities in the society. At the end, the
researcher desires to contribute with positive suggestions to rule out
the social evil of domestic violence to remedy the deteriorating
conditions of women in society.

VI. RESEARCH METHODOLOGY

The study was designed to be a doctrinal as well as non-doctrinal

legal research. The secondary data gathered from sources such as
books, journals, magazines, news papers, Law reports, reports of
National and State commissions for women and internet access
through different websites. The primary data is collected through
questionnaire and observation of victims located in Sangli District.
8
The researcher with the help of case study and questionnaires
collected had brought on fore the grass-root hidden realities in the
prevention of domestic violence and the hurdles in the enforcement of
The Protection of Women from Domestic Violence Act, 2005. Even
though the researcher has designed the study in doctrinal legal
research method for the sake of evaluating the provisions, obstacles in
effective implementation and enforcement and to test the objectives
and hypothesis the researcher adopts non-doctrinal method and
selects the Sangli District, The socio legal issues involved in it were
better studied with the Statistical data collected from the various
advocates, judges, police officers, protection officers, victims and the
general public etc. It is also observed from the live case experiences
of the victim that though they aware to be the victims of domestic
violence, but for the sake of family institution were reluctant to take
the matter for state intervention.

VII. ORGANISATION OF STUDY

The study is divided in twelve chapters.

The first chapter deals with the introduction which includes the
statement of problem, hypothesis and methodology.
The second chapter deals with the problem of domestic
violence in India. The greatest tragedy in our country is that, grave
injustice is done to her. She being victim of domestic violence
irrespective of their age, race, caste, social and economic political
status, her vulnerability in various forms is the common phenomenon
in Indian society. The silent suffering culture of Indian women is
making her easy prey to the male domination supported by patriarchy
prevalent. The authoritative, autocratic nature of male member in
society and victimization of female makes the situation worst.
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"Almost every home in India must be suffering from some kind of
domestic violence where women either as daughter, daughter in law,
or as a wife are abused physically, mentally, verbally economically.
The domestic violence at home is manifested against her at two
levels—natal home and conjugal home. In a son preferred society like
ours, the journey of a girl child from the womb to the tomb is riddled
with unsavory events. To know about particular social evil, it is
essential to trace its historical perspective and the nature of the
widespread issue in various dimensions at global level and
specifically in India as the prevailing circumstances, social; cultural
traditional factors play vital role in law making, its implementation
and its reforms. It is also necessary to look in to the consequences, the
forms and magnitude of the problem with reference to India.
The third chapter deals with the concept and causes of domestic
violence. As the researcher had the objective of examining the
concept of domestic violence in general and in particular with
reference to "The Protection of Women from Domestic Violence Act,
2005". It was to have conceptual clarity of the domestic violence in
general and under the PWDVA2005 specifically. Dornestic violence
being a social problem an evil against humanity a precursor to prevent
it is in understanding what causes it? For this an inquiry in to two
aspects is necessary one , about the factors leading or influencing the
offensive behaviour as well another about what makes women a
vulnerable class and leads to her victimization?
The fourth chapter consists of human rights perspective of
domestic violence and the global standards. UDHR 1948 adopted by

^ Justice A.D.Mane, "Lectures on human rights", Edited by Vijay. N. Ghormade,

Hind Law Publication 2007,p. 268
^ Malvika Karlekar, "Domestic Violence" EPW vol. XXX III no 27,July (1998)
10
General Assembly declared that human rights for all apply equally to
all " without distinction of any kind such as race, colour, sex,
language.... or other status obviously enough applying this the rights
delineated by the UDHR are understood as applying to women also,
however as in practice, it is observed under the pretext of tradition,
prejudices, social economic and political interest exclude women
from 'general human rights' This marginalization of women has been
reflection of gender inequity in world at large and has a serious
impact on their lives. The purposeful deliberate division of 'public
life' and 'private life' of women has its roots in the desire to limit
them seek redress in the event of violations. Silently suffer in the
pretext of social cultural norms constraints. International community
has shown very sincere concern through vigilant concerted action.
Important steps towards protecting human rights worldwide include
documenting human rights violations, publicizing them widely etc but
basically how the human rights standards of equality, non violence
are articulated in the international documents is necessary to be
studied. When people utilize human rights framework to articulate the
vast array of human rights abuses that are faced by women, they will
bring the powerful tool to bear the women experiences. In this chapter
the researcher has given full account of the efforts of international
community to protect the rights of women as a human being.

Fifth chapter is devoted to the history of legislative response to

domestic violence in India. Eve n though women occupy a unique
position in Indian society in the ancient India, her role is seriously
belittled by the patriarchal structure of our society. She is been
subjected to violence at the hands of this male dominated society in

^ Art 2 UDHR 1948

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one or the other way. Her victimization depends upon her status in the
society and the legislative response meted out on the part of state. The
society which gives her a dignified place and all basic human rights,
there is very few instances of violence on her but the society which
gives her secondary treatment and utter disregard to her human rights,
there is constant attack on her dignity and chances of victimization
are ample. The researcher here traced the historical background of the
legislative response to domestic violence from very early Vedic age,
British period and after independence with the constitutional
safeguards and through the special laws passed for her protection and
also the amendments in the criminal law encompassing the domestic
violence. The short but essential background of the circumstances and
the compelling issues of passing of the present Act since from the
international pressures and also the pressures from the women
organizations like lawyers collective etc is also traced and the
previous bills presented in the houses, its failure and lastly the passing
of the today's PWDVA2005 is presented by the researcher.

Sixth chapter discusses about the legislative frame work of the

the legislative response in the country, as the legislative Response to
the women's fights against the oppression in the country met positive
feedback with the passage of The Protection of Women from
Domestic Violence Act 2005. Previous bills in 2001 and 2002 were
drastically amended to meet the demands expressed by legal experts,
Women Rights Organizations, Concerned ministries and departments
and National and State Commissions for women when the
Department of Women and Child Development. The Act derives its
mandate from The Vienna Accord of 1994 and the Beijing
Declaration and the Platform for Action 1995. The Statement of
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Objects and Reasons of the Act also mentions the 'United Nations
Committee on CEDAW which in its General Recommendation No.
XII (1989). The chapter discusses in detail about the provisions for
authorities and the service providers, their functions as well the
procedural framework of how they are to work in order to assure the
rights as reliefs to the victim. The chapter gives full legislative
framework along with rules to protect women from domestic violence
in the country and also the remedies available under the present
statute.

Seventh chapter provides a critical review of the PWDVA2005.

Its termed as path-breaking law in the country and women's activist
enjoyed their victory over passing of the legislation with zeal and
enthusiasm. It was welcome from many comers of the society, but
was also subjected to criticism from some quarters. The response
from the society was mixed. Why such victim driven legislation met
with heavy criticism? Is it due to male dominations or purely
patriarchal nature of our society? Or does it really suffer from the
major loopholes? It was necessary to carry a critical investigation to
provide conceptual and remedial reforms.

Eighth chapter on remedial measures and dispute resolution

takes a review about the whole series of measures available under the
existing legal system like under the criminal law, matrimonial law,
regular courts, family courts etc. The abuse against women in the
domestic relationship is considered as a violent attempt to
disempower her and make her more and more vulnerable. The sole
object of this mechanism was to give her secured and safe
environment and to resolve the dispute permanently. Resolution of

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dispute is an essential element of social peace and harmony. From
prehistoric times, the task of resolving disputes has been entrusted to
that powerful section of society like king or the wise elder people
forming the pancahyats or kazis etc. with the evolution of the
institution of state and the formal legal system's development, it is the
task of courts to resolve the dispute of any nature. Consequently
when the courts became the sole institution for resolving dispute and
dispensing justice to the victim, the increase in its litigation caused
severely to the principles of justice that 'justice delayed is justice
denied.' It also amounted to increasing high degree of formalism and
the pace of resolving dispute became time consuming. Which led to
the search for the other complimentary mechanism to court process
for speedy dispute resolution? Therefore it was required to assess the
administrative machinery and remedial mechanism to curb the evil of
domestic violence. It would open the way to look in to the matter that
whether the existing provisions have failed and it required the present
legislation in question or the system of formal justice system through
the courts cannot answer the situation hence the non-formal system of
justice (ADR) can prove the probable right choice more usefiil in the
curbing the domestic violence.

Chapter ninth undertakes the comparative perspective of law

preventing domestic violence in other countries. As worldwide
response to law on domestic violence had various perspectives in
each country, for the study purposes the researcher evaluated the law
of three countries, i.e. USA, Canada, and United Kingdom. The
objective to analyse the provisions of other countries was carried out
to review our system loopholes and to trace the solutions for. By
reviewing the other legal system of different nations and
14
incorporating international treaties in the interpretation of the law, it
can give a global dimension, which would help to be a vehicle of real
development. It is only through the human rights perspective that one
can create a "violence-free home" leading to a "violence-free
society".

Tenth chapter deliberates upon the role of NGOs in the

prevention of domestic violence, as it was for the first time legal
system in the country recognized the need of active participatory role
of the external agency to curb the domestic violence. In Indian
context domestic violence is viewed as a private family matter and is
expected to be settled at home without unnecessary external
intervention. These NGOs provide support and services to the grass-
root level so their role in effective implementation of laws cannot be
ignored. The NGOs involved in the emancipation of women, provide
various services to the victim in the form of- Shelter, medical
assistance, conciliation, counselling, financial or entrepreneurial
assistance, legal aid and legal literacy, leading agitations and
demonstration, public interest lawyering etc. Hence it was needful, to
examine the role of NGOs in prevention of domestic violence, as the
making of law is a short term process but its effective implementation
is a constant process which needs the collective efforts of various
agencies present in the society.

Eleventh chapter provides the data of the socio-legal survey of

the Sangli District, with reference to domestic violence. The purpose
of the socio-legal survey of Sangli district was to see the impact and
awareness of the PWDVA2005. Since passing the half decade is
over. It's too short a period to evaluate its working, as the people to
15
aware of and the officers to acquaint with the procedural
technicalities and the enforcement machinery to identify the ways to
redress the grievances of the victim. The integrated approach towards
all hurdles can make the improvements in the enforcement of the Act.
It was with the present empirical study the basic public consensus
came on the fore as, so as to create awareness and the access to justice
should be made viable through easy and people friendly mechanism.

Chapter twelve is devoted conclusion upon the basis of

investigation in to the facts, and also upon the testing of the
hypothesis in the society. The conclusion is the real facts and the
truthful observations of the researcher when the phenomenon of
domestic violence was studies in different dimensions.

The last chapter is of recommendations. Derivative conclusions

based upon the present research work are met with the solid
recommendations in the present context upon the basis of socio-legal
and political considerations in the country. The researcher purely
upon the investigation in to the facts on records find that the changes
in the present scenario are most strongly required in various
perspectives like- Societal, structural and attitudinal changes, making
the Act full proof, pro-active governmental, institutional and public
support for effective implementations with strong political will,
honest auditing of the present infrastructural loop holes, and an
integrated approach in view of multi dimensional hurdles.

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