The Protection of Women from Domestic Violence Act (PWDVA) has crossed two decades and it is time to evaluate its effects. The Supreme Court referred, in Salem Advocate Bar Association (2005), to a suggestion from the Constitution Review Committee that the judicial impact of legislation must be analysed. The court noted the committee’s suggestion for a “judicial impact assessment”, as done in the United States, whenever any legislation is introduced in parliament or in the state legislatures.The committee, the Supreme Court noted, also said that the financial memorandum attached to each Bill must estimate not only the budgetary requirement in terms of new staff that would be required but also for meeting the expenses of the additional cases that may arise out of the new Bill, once it is passed by the legislature.“The said budget must mention the number of civil and criminal cases likely to be generated by the new Act, how many courts are necessary, how many judges and staff are necessary and what is the infrastructure necessary. So far in the last fifty years such a judicial impact assessment has never been made by any legislature or by parliament in our country,” the committee noted.The Supreme Court, noting these observations and the constitutional obligation to provide fair and speedy justice, directed the Union government to examine these suggestions and submit a report to the court.Two research scholars of the Tata Institute of Social Sciences, with the support of the Ministry of Women and Child Development, then attempted to study the implementation of the PWDVA. To study the orders passed by different magistrate courts across states, they sought permission from the respective chief justices of different high courts, including the Bombay high court and Madras high court.To their disappointment, while the two courts permitted the study of judicial orders passed by the magistrates, they refused to allow them to use these orders in any publication. This frustrated the very effort to understand the impact of the legislation on the judiciary or its understanding of the legislation. The Madras high court even refused access to study the records from the magistrate courts.Despite such obstacles, the scholars, Monica Sakhrani and Trupti Jhaveri Panchal, have published a detailed report titled ‘Quest for Justice: A Study of the implementation of the PWDVA, 2005’, studying the magistrates’ orders. Their volume includes interviews with litigants and their lawyers as well as several NGOs working in the field.The report found that, beyond the lack of any judicial impact assessment, the courts – particularly the high courts – were themselves unhelpful in implementing the PWDVA. This is not only due to the judicial interpretations of the law, but even on the administrative side, very little was done to orient magistrates to deal with cases under this Act.When the Madras high court subsequently held a seminar on the PWDVA for the trial magistrates, this author had the bitter experience of encountering trial magistrates who, even before dealing with cases, said the judiciary had been empowered with one more law to destroy families. The Lawyers Collective suggested preparing a bench manual for easy reference of trial courts to the chief justice of the Madras high court. However, they got a hostile rebuke to the effect that the judiciary would manage its own affairs and did not want guidance from NGOs.The scholars note in their report (Page 126):“Though maintenance is a well-defined right under law, Justice Dhingra of the Delhi high court restricted the right to monetary relief under the PWDVA by holding that the ‘court shall not grant maintenance to wife unless there is prima facie proof of husband being employed’. This judgment was contrary to the well settled principle of grant of maintenance which principle was first laid down by the Delhi high court in Chander Prakash v. Shila Rani (1968) when it held that an able-bodied young man must be presumed to be capable of earning sufficient money so as to be able to reasonably maintain his wife and child and he cannot be heard to say that he is not in a position to earn enough to be able to maintain them according to the family’s standards.”It is a pity that the trial court was not made aware of the background in which the PWDVA was enacted by parliament. In fact, little did they realise that the statement of objects and reasons appended to the Bill refers to the fact that the law was enacted keeping in view the rights guaranteed under Articles 14, 15 and 21 of the constitution, to provide a remedy under civil law to protect women victims of domestic violence and prevent the occurrence of domestic violence.The judicial interpretations by several high courts also pushed the law into a position that was never contemplated by parliament or by the women’s groups that had lobbied for its enactment.A closer look at high court judgmentsCertain factual material recorded in the report of the research scholars and the structural problems women face must be mentioned first. The first problem was the indifferent response of courts as well as time-consuming disposal of cases by courts. The report noted:“Though most women sought ‘justice’ from the courts, the courts were slow in granting the same. Out of the 2,466 cases studied, 821 (33.2%) were disposed of and only 6.2% (166 cases) of these were on merits. Seven cases were rejected and the rest 159 were partially or fully allowed.“Of the remaining disposed-of cases, 164 were dismissed for default (163 of them in Haryana), 379 were withdrawn (363 in Haryana) and 112 were successfully settled or mediated (mostly in Maharashtra). Evidence was led in only 507 of the total cases. Only 11 cases were disposed of within the stipulated period and approximately 24% of the cases were disposed of within six months of filing of which 6.5% were disposed of within the stipulated period of sixty days. The largest number of pending cases is in the year 2010.”How the stakeholders were frustrated with the delay in courts determining their rights was also reported by the scholars in their interviews with some litigants. They reported (Page 110-111):“Of the large number of cases that have been withdrawn, the largest is in Haryana – 216 in Hissar and 147 in Fatehbad. The largest number of cases that have been dismissed due to default (as the applicant abandons the case and does not appear in court) is also in Haryana – 163 out of the total 164. This large-scale withdrawal and dismissal for default could indicate disillusionment with the delays and lack of reliefs being granted by the courts.“In the interviews conducted with 193 women litigants too, one of the major challenges that the women appeared to face was the long delays in the court and the lack of speedy remedy (78). Of the 193 women, 29 had settled or compromised in their cases of which only 8 were satisfied with the outcome of the settlement. The reason for the settlement became clear when we consider that over 80% had got no relief from the courts and only 16 women had got the reliefs prayed for.”The report in its recommendations refers to the conduct of the courts and the need to sensitise the judiciary. In paragraphs 5, 7 and 12, it said:“Some also expressed the need for sensitisation and training of judges in dealing with cases of violence against women. This appears to be required given the lack of adequate court response.They felt that judicial officers do not take their cases seriously and consequently do not pass adequate relief and do not deal stringently with violations.The procedure for cases under the PWDVA is ad hoc and changes according to the judicial officer. This requires streamlining and the rules ought to be framed to standardise the procedure relating to the cases.”The report also pointed out the reluctance of magistrates in granting residence orders due to the confusion created by the Supreme Court in Taruna Batra (2006) and due to the lack of legal rights of women in matrimonial property. The report concluded with an observation on the overall impact of PWDVA. “The study showed that violence against women is extreme and harms a woman’s well-being. It also showed the extraordinary effort and courage required to combat the same on the part of the women. It reinforced the need for a strong and effective law to address violence against women. The overall finding of the study was that the law addresses the issue in a comprehensive manner but requires more effective implementation”Even before the PWDVA could properly be used by the affected women, many courts started voicing the usual grievance that the Act was being misused, thereby making trial magistrates indifferent towards the genuine grievances of survivors.In Vijay Verma (2010), it was observed:“Filing of a petition under Protection of Women from Domestic Violence Act by the petitioner taking shelter of domestic relationship and domestic violence needs to be considered so that this Act is not misused to settle property disputes.”The same grievance was projected by Madhya Pradesh high court in cases such as Raj Kishore Shukla (2015), Manish Das (2022), the Bombay high court in Y.Kunjappan (2011), and the Punjab and Haryana high court in Hardeep Khan (2022).However, the report showed the other side (Page 109):“From the 2,466 cases perused under this study, the large majority of the cases were still pending (1,645). There were some that were disposed of (821), whereas a large number of cases were withdrawn (379). Interim reliefs were granted in only about 159 cases…[showing] the insensitivity of the courts to the plight of the women facing domestic violence.It was observed that two-thirds of the cases were pending. Evidence was led in 507 cases of the 2,466 studied. Of the cases that were disposed of, in only 166 cases (6.2%) was a judgment delivered. Of the disposed cases, it was found that in a large majority, the women succeeded in their cases with the court accepting their complaints. The fact that women’s complaints are accepted by the courts suggests that the allegation of many persons that the law is misused by women is totally unfounded and unsubstantiated.”In fact, most of the women who approached the court wanted to continue their matrimonial life. They only wanted not to be subjected to domestic violence by their husbands. The interviews conducted by the scholars elucidated the opinion of the women interviewed (Page 124):“From the interviews of the women, it was found that most women wanted to live in their matrimonial homes, but they also wanted the violence to stop. Since they were displaced from their homes, were not given any money for their daily sustenance, were injured, were dependant, they would require monetary reliefs too. Unfortunately, the perpetrators of violence in a lot of cases did not want to live with the woman, due to varied reasons as stated earlier in this report.”How then their lordships can take a view that the Act has been put to misuse when the majority of the women wanted to continue to live with their husbands without being subjected to violence by them?The claim of ‘misuse’ continues in parliamentThis theme of “misuse” also echoed in the Rajya Sabha. While replying to a query, the law minister in 2016 admitted that there were only 13 convictions but 639 charge-sheets were pending trial in 2014. He also agreed with the possibility of misuse and said that the provisions of the Act would be amended.As the researchers note, “The government told the Rajya Sabha on Wednesday that “sometimes” the provisions of the DV Act and anti-dowry law were misused and several NGOs had given reports saying so. Answering a question on cases of domestic violence in the country, MoS (Home) Kiren Rijiju said that only 13 persons were convicted out of the 639 charge-sheeted in 2014 under the DV Act.”“The government told the Rajya Sabha on Wednesday that “sometimes” the provisions of the DV Act and anti-dowry law were misused and several NGOs had given reports saying so. Answering a question on cases of domestic violence in the country, MoS (Home) Kiren Rijiju said that only 13 persons were convicted out of the 639 charge-sheeted in 2014 under the DV Act.”Despite ten years having gone by, the government has not cared to bring in any amendment taking note of various judicial interpretations given by different high courts and the Supreme Court.Even when specific directions were given with regard to matters relating to violence against women by the Supreme Court to the legislatures, the directions went largely unnoticed and were never acted upon. In Preeti Gupta’s case (2010), the court gave a specific direction in this regard:“It is high time that the legislature must take into consideration the pragmatic realities and make suitable changes in the existing law. It is imperative for the legislature to take into consideration the informed public opinion and the pragmatic realities in consideration and make necessary changes in the relevant provisions of law,” said the scholars’ report.On fiscal and corporate matters, the same indifference goes away. The Insolvency and Bankruptcy Code and the Arbitration and Conciliation Act are two classic examples. In the last ten years, they have been amended thrice and all in a short period of time. So, either the voices of women’s organisations are never heard in parliament or they have very little influence.Even the Supreme Court sends different signals at different times in matters of violence against women. In S. Vijikumari (2024), the court explained the background and the need for the law:“The Act is a piece of civil code which is applicable to every woman in India irrespective of her religious affiliation and/or social background for a more effective protection of her rights guaranteed under the constitution and in order to protect women victims of domestic violence occurring in a domestic relationship.”On the other hand, the top court advised the parties to go slow on the matter and not to exaggerate trivialities lest the institution of marriage might fail in the Achin Gupta case (2024). It said:“We are saying so for the simple reason that if the wife on account of matrimonial disputes decides to harass her husband and his family members then the first thing, she would ensure is to see that proper allegations are levelled in the First Information Report. Many times the services of professionals are availed for the same and once the complaint is drafted by a legal mind, it would be very difficult thereafter to weed out any loopholes or other deficiencies in the same….“The foundation of a sound marriage is tolerance, adjustment and respecting one another. Tolerance to each other’s fault to a certain bearable extent has to be inherent in every marriage.“Petty quibbles, trifling differences are mundane matters and should not be exaggerated and blown out of proportion to destroy what is said to have been made in the heaven. The court must appreciate that all quarrels must be weighed from that point of view in determining what constitutes cruelty in each particular case, always keeping in view the physical and mental conditions of the parties, their character and social status. A very technical and hyper-sensitive approach would prove to be disastrous for the very institution of the marriage.“In matrimonial disputes the main sufferers are the children. The spouses fight with such venom in their heart that they do not think even for a second that if the marriage would come to an end, then what will be the effect on their children. Divorce plays a very dubious role so far as the upbringing of the children is concerned”.People who speak about the alleged misuse of the provisions must only see the ground reality where thousands of women who are subjected to domestic violence or denied shared household fight for justice for years together without any relief from the courts concerned.The institution which talks about judicial impact assessment of any legislation did not even care to study the results of the application of the legislation for over two decades. The government which promised necessary amendments to plug loopholes hardly has any time to deal with the issue.The author is a retired judge of the Madras high court. This article was originally published on The Leaflet.