Violence Against Women (VAW) – Jurisprudence and Statutory Remedies

I. Introduction: The Rights-Based Perspective

Violence against women is not merely a social ill but a fundamental violation of human rights, contravening the rights to life, dignity, and equality guaranteed under Articles 14, 15, and 21 of the Constitution of India.¹ From an international law perspective, it violates the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), which India ratified in 1993. The Indian Supreme Court has consistently applied the doctrine of “transformative constitutionalism” to expand the scope of protection for women, moving beyond penal retribution to civil rights and restorative justice, most notably through the Protection of Women from Domestic Violence Act, 2005 (PWDVA).²

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II. Leading Supreme Court Case Law

While there are numerous landmark judgments (e.g., Vishaka for workplace harassment), for the specific context of Domestic Violence, two judgments define the current legal landscape: Indra Sarma (defining the relationship) and Hiral P. Harsora (defining the perpetrator).

Case 1: Indra Sarma v. V.K.V. Sarma (2013)

This case is the locus classicus for interpreting “relationships in the nature of marriage” (Live-in relationships) under the DV Act.³

• Citation: (2013) 15 SCC 755
• Facts: The appellant (Indra) entered into a live-in relationship with the respondent (V.K.V. Sarma) for 14 years.⁴ However, she was aware that the respondent was already married to another woman and had children.⁵ When the relationship ended, she sought remedies under the DV Act.
• Legal Issue: Does a live-in relationship where one party is already married fall within the definition of a “relationship in the nature of marriage” under Section 2(f) of the DV Act?
• Decision:
  • Held: The Supreme Court dismissed the appeal.⁶ It held that while “live-in relationships” are generally protected, this specific relationship was “adulterous” and not “in the nature of marriage” because the parties could not legally marry (due to the subsisting marriage).
  • The “Guidelines” (Key Takeaway): The Court laid down authoritative guidelines to determine which live-in relationships are protected under the Act.⁷ Essential characteristics include:
    1. Duration of the relationship (must be reasonable).
    2. Shared Household (defined under Sec 2(s)).⁸
    3. Pooling of Resources (financial interdependence).
    4. Domestic Arrangements (division of responsibility).⁹
    5. Sexual Relationship (for emotional intimacy/procreation).
    6. Socialization (holding out to society as spouses).

Case 2: Hiral P. Harsora v. Kusum Narottamdas Harsora (2016)

This case expanded the scope of who can be sued (Respondents).¹⁰

• Citation: (2016) 10 SCC 165
• Issue: Section 2(q) of the DV Act originally defined “Respondent” as an “adult male person.” The issue was whether a complaint could be filed against female relatives (e.g., mother-in-law, sister-in-law) or male minors.¹¹
• Decision: The Supreme Court struck down the words “adult male” as unconstitutional (violating Art.¹² 14).
• Impact: The Act is now gender-neutral regarding perpetrators.¹³ A woman can file a DV complaint against any person (male or female) who is in a domestic relationship with her.

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III. Remedies under the PWDVA, 2005¹⁴

The DV Act is a unique blend of civil and criminal law. Unlike the IPC (Section 498A), which focuses on punishment (arrest/jail), the DV Act focuses on relief and restitution.¹⁵ As a human rights student, you should categorize these remedies as “Civil Rights” enforced by a Magistrate.¹⁶

An aggrieved woman can approach the Magistrate for the following orders:

1. Protection Orders (Section 18)¹⁷

This is a “Stop Violence” order. The Magistrate can prohibit the respondent from:

• Committing any act of domestic violence.¹⁸
• Entering the woman’s place of employment or school.
• Communicating with her (calls, emails, etc.).
• Alienating assets (selling the house/car) to leave her destitute.

2. Residence Orders (Section 19)¹⁹

This is the most “revolutionary” aspect of the Act, protecting the Right to Shelter. The Magistrate can order:

• Restraining the respondent from dispossessing the woman from the Shared Household.²⁰
• Directing the respondent to remove himself from the shared household (rare, usually requires alternative accommodation).
• Directing the respondent to secure alternate accommodation for the woman.²¹
• Note: A woman cannot be evicted from a shared household without the due process of law.²²

3. Monetary Reliefs (Section 20)²³

This covers actual financial loss incurred due to violence.²⁴

• Medical expenses.²⁵
• Loss of earnings.²⁶
• Destruction of property.
• Maintenance for the aggrieved person and her children.²⁷

4. Custody Orders (Section 21)²⁸

• The Magistrate can grant temporary custody of children to the aggrieved person to prevent the abuser from using children as leverage.²⁹
• Visitation rights may be refused to the respondent if it is harmful to the child.³⁰

5. Compensation Orders (Section 22)³¹

• Damages for the injuries, including mental torture and emotional distress, caused by the acts of domestic violence.³²

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From a human rights perspective, the Indra Sarma judgment and the Hiral Harsora verdict represent a judicial attempt to balance the sanctity of marriage with the reality of cohabitation. The PWDVA, 2005 shifts the paradigm from “punishing the offender” to “empowering the survivor,” recognizing that for a victim of domestic abuse, immediate safety (Residence Order) and financial security (Monetary Relief) are often more urgent than seeing the abuser behind bars.³³ However, as scholars, we must remain critical: while the law has evolved to be robust and inclusive, the access to justice remains hindered by procedural delays and patriarchal social conditioning, leaving the promise of Article 21 partially unfulfilled for many women.

contemporary challenges in implementing the Protection of Women from Domestic Violence Act, 2005 (PWDVA) and the broader framework of Violence Against Women (VAW) in India, particularly in the wake of the new Bharatiya Nyaya Sanhita (BNS), 2023.

I. Emerging Challenges in the 2024-2025 Legal Landscape

Despite robust laws, the gap between “law in books” and “law in action” remains the primary hurdle.

1. The “Invisible” Protection Officer (Infrastructure Deficit)

The Protection Officer (PO) is the backbone of the DV Act—designed to be the bridge between the victim and the Magistrate.

• Challenge: In many states, the role of the PO is given as an “additional charge” to existing Revenue or Block Development Officers who are already overburdened. They often lack the legal training or time to assist victims in filing Domestic Incident Reports (DIRs).
• Result: Victims are forced to hire private lawyers, defeating the Act’s purpose of providing a low-cost, simplified remedy.

2. The “Marital Rape” Lacuna in BNS, 2023

• Challenge: The new penal code (BNS) has retained the “Marital Rape Exception” (Exception 2 to Section 63). Sexual intercourse by a man with his own wife (being above 18 years) is not rape.
• Critique: From a human rights perspective, this violates the right to bodily integrity (Article 21). While the DV Act recognizes “sexual abuse” as a form of domestic violence (civil remedy), the lack of criminal sanction in the BNS creates a dissonance where the state recognizes the harm but refuses to punish it as a crime.

3. The “Misuse” Narrative vs. Data Reality

• Challenge: There is a growing judicial and social narrative that women “misuse” Section 498A/Section 85 BNS and the DV Act to harass husbands.
• Impact: This has led to the dilution of immediate arrests (as per Arnesh Kumar guidelines) and a skeptical approach by the police, often forcing “mediation” even in cases of severe physical violence. This “presumption of misuse” often revictimizes the survivor.

4. Cyber-Violence and “Revenge Porn”

• Challenge: Domestic violence has moved online. Abusers use intimate images (non-consensual image-based sexual abuse) to blackmail survivors, especially when they attempt to leave the relationship.
• Gap: While the IT Act exists, the intersection of domestic relationships and cyber crimes is often poorly handled by local police stations lacking technical expertise.

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II. Recent Judicial & Legislative Developments (Status 2024-25)

1. Supreme Court: We The Women of India v. Union of India (2024)

In this ongoing Public Interest Litigation (PIL), the Supreme Court has taken strict note of the infrastructure failures.

• Direction: The Court directed all States/UTs to appoint dedicated Protection Officers (not additional charge) and create a permanent cadre for them.
• Significance: It shifts the focus from “creating laws” to “building capacity.”

2. Bharatiya Nyaya Sanhita (BNS) – Section 69

• New Offence: The BNS introduced Section 69, criminalizing sexual intercourse by “employing deceitful means” (e.g., false promise of marriage or employment).
• Debate: While intended to protect women, critics argue it risks paternalism and could be used to police consensual relationships that turn sour, rather than addressing violent predation.

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III. Strategic Suggestions for Reform

Our Suggestions should move beyond “better implementation” to structural reforms.

Area of Reform	Suggestion
Legislative	Remove the Marital Rape Exception: The law must recognize that consent does not become perpetual upon marriage. Rape must be defined by consent, not relationship.
Institutional	“One-Stop Centre” (Sakhi) Integration: These centres often operate in silos. They must be legally integrated with the Magistrate’s court so that a woman visiting a centre can file a DIR via video conferencing immediately.
Economic	“Crisis Cash” Transfers: Most women return to abusers due to financial dependence. The “Monetary Relief” under the DV Act takes months. A state-funded “Immediate Crisis Fund” should be available upon filing a DIR.
Judicial	Specialized DV Courts: Just as we have POCSO courts, we need dedicated Magistrates for DV cases to ensure the 60-day disposal timeline (Section 12(5) of DV Act) is met.

IV. Conclusion

The Indian legal framework for VAW is currently at a crossroads. We have moved from silence to speech (enacting laws), but we are struggling to move from speech to substance (enforcement). The greatest challenge today is not the absence of law, but the apathy of the machinery. A true “human rights” approach requires us to stop viewing domestic violence as a “family dispute” to be settled, and start treating it as a “human rights violation” to be remedied.