Found and Lost in Translation: Exploring the Legal Protection of Women from the Domestic Violence Act 2005 Through the Social Public Space of Kolkata
| Author | Amrita Mukhopadhyay |
| Published date | 01 June 2019 |
| Date | 01 June 2019 |
| DOI | http://doi.org/10.1177/0964663918769473 |
| Subject Matter | Articles |
Article
Social & Legal Studies
2019, Vol. 28(3) 349–369
Found and Lost in
ª The Author(s) 2018
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Translation: Exploring
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DOI: 10.1177/0964663918769473
the Legal Protection of
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Women from the
Domestic Violence Act
2005 Through the Social
Public Space of Kolkata
Amrita Mukhopadhyay
Western Sydney University, Australia
Abstract
The Protection of Women from Domestic Violence Act 2005 (PWDVA) came into
effect on 26 October 2006. The PWDVA introduced several legislative innovations that
either are proclaimed as landmarks or remain underscored in the commentaries of the
PWDVA. This article attempts to explore the landmark and the mundane PWDVA
aspects by examining the implementation of the PWDVA through the relation between
the formal legal sphere and the social sphere. It aims to examine how and in what ways
has the formal domestic violence law fostered a legal culture engendering legal literacy of
ordinary women and men. In doing so, the article explores how the implementation of
the PWDVA responds to a particular sociocultural context of women experiencing
violence at the hands of family members in India and offers a legal conception of domestic
violence that is significantly different from the Western notion of domestic violence as
interpersonal violence between two individuals.
Keywords
Domestic violence, gender, India, intersectional, ordinary, Protection of Women from
Domestic Violence Act
Corresponding author:
Amrita Mukhopadhyay, School of Social Sciences and Psychology, Western Sydney University, Bankstown
Campus, Milpera, Sydney, NSW 2214, Australia.
Email: A.Mukhopadhyay@westernsydney.edu.au
350
Social & Legal Studies 28(3)
The Protection of Women from Domestic Violence Act 2005 (PWDVA), enacted by
Government of India, came into effect on 26 October 2006. The PWDVA responds to a
particular sociocultural context of women experiencing violence at the hands of multiple
family members and offers a legal conception of domestic violence that is significantly
different from the Western notion of domestic violence as interpersonal violence between
two individuals. The PWDVA introduced several legislative innovations that either are
proclaimed as landmarks or remain underscored in the commentaries of the PWDVA. This
article attempts to examine the implementation of the PWDVA through the relation
between the formal law and the social sphere. This article explores the ways in which the
formal legal language of a domestic violence law is translated into a non-legal language.
At the same time, the translation also occludes a process of consolidation where legal
know-how on domestic violence remains a woman’s issue or a legal issue to be dealt with
by lawyers and legal professionals in formal courts rather than a public concern requiring a
multipronged approach at various levels to support victims of domestic violence. The
significance of the article lies in the enmeshing of the legal and the social sphere where
the limitations of formal law for victims is acknowledged but feminist engagement with
the project of law cannot be abandoned for a social existence free from domestic violence.
The journal article is divided into four sections. The first section explains the meaning
of legal literacy that is used in this article. It also discusses the significance of legal
literacy for everyday women and men within the particular sociocultural context of India
characterized by a complex juridical system and government structure. Further, the
significance of legal literacy for women is discussed in the light of familial entitlements
of women in India.
The second section of the journal article explains the research methodology of the
article. This article draws from a doctoral study that examines the implementation of the
PWDVA within the context of a small-scale business community, called the Kesarwani
community, in the metropolitan city of Kolkata. However, the focus of this article is not
the Kesarwani community or the functioning of small-scale businesses and their correla-
tion to domestic violence and the PWDVA.
The third section canvasses the pre-PWDVA legal framework of domestic violence in
India. It discusses how the legal construction of domestic violence focused on matri-
mony and the ways in which the legal framework exacerbated the violence experienced
by women within the family. Subsequently, the section discusses the innovative aspects
of the PWDVA in the light of the deficiencies of the pre-PWDVA framework.
The fourth section is an ethnographic account of themes central to this article. The
ethnography provides detailed discussion of my search for the PWDVA in the public
space of Kolkata. The ethnographic themes are followed with analysis of the qualitative
data leading to conclusions on legal literacy.
Legal Literacy
Meaning
Legal literacy refers to a legal culture where ordinary women and men understand the
basic legal entitlements under formal laws. This is particularly relevant for domestic
Mukhopadhyay
351
violence legislation where victims and bystanders need a basic understanding of the
kinds of legal guarantees available to them while contextualizing the law within their
everyday lives. Therefore, legal literacy refers to a legal culture characterized by a social
process where the formal legal language of law is translated into a non-legal language of
ordinary people to generate an understanding of the promise of law. It involves extending
the meaning and relevance of the law solely beyond the legal establishment of courts,
lawyers and paralegals and informing the public about the symbolic function of law in
the social sphere.
Therefore, legal literacy should not be confused with a narrow formal notion of legal
literacy of legal professionals, focusing on reading or writing of law and legal provisions,
legal reasoning, legal interpretation or understanding of legal precedents or judgments.
Legal literacy refers to the process of acquiring critical awareness about legal rights and
the ability to assert the rights in order to redress grievances (Armatta, 1997). This form of
literacy has been identified as an integral part of legal empowerment strategies of
individuals and groups where everyday knowledge of the law is fundamental to empow-
erment (Dimopoulous, 2010).
Significance
This conception of legal literacy is significant in the context of India where legal know-
how and functioning of the law remains confined to legal professionals and government
officers. There was a plethora of laws prior to the PWDVA regulating forms of violence
against women perpetrated by family members. But knowledge of these laws is limited
among ordinary people. More particularly, knowledge of the laws governing familial
entitlements of women remains abysmally low even in metropolitan areas. According to
a 2010 study of the Associated Chambers of Commerce and Industry of India, 70% of
women in Delhi is unaware of their legal rights (ACCII Media, 2010).
This situation is exacerbated when we consider the complex criminal justice system
of India consisting of 36 court jurisdictions where courts recognizing local vernacular
language as the language of the court proceeding can produce legal judgments in many
languages (Greenleaf et al., 2011). Further, due to the federal structure of governance
where legislation relating to violence and family is subject to federal and state legisla-
tions, formal laws and legal rules regulating violence perpetrated by family members can
exist in as many as 22 languages (Lalmalsawma, 2013). Noting the insulation of the law
and legal process from the lives of everyday women and men, Dhavan (1986) notes that
following independence, the functioning of the formal legal infrastructure in India
‘insulated the law and legal process’ from the broader sociopolitical context of everyday
living in a ‘way that has no parallel anywhere in the Third World’ (p. 528). Public
dissemination of law and legal provisions governing family life has hardly been an
integral part of public policy initiatives such that laws remain confined to those who
can study the statute books of India. The onus of public legal education can be best
described as ad hoc strategies that are usually undertaken by different law schools or
legal organizations in India (Menon, 1991; Pandey and Shukkur, 2010).
The significance of legal literacy for victims of domestic violence cannot be under-
mined. In India, where legal entitlements of women within the family is determined by a
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Social & Legal Studies 28(3)
complex system of formal state laws and informal laws, a domestic violence legislation
enunciates clearly that private acts of violence by loved ones can form a legal basis of
public intervention and redistribution of family assets in favour of victims. Access to
survival resources through formal domestic violence law are wide ranging – economic,
social, legal and medical – enabling a victim to transform into a survivor. Further, a
domestic violence legislation provides a mechanism of institutional support to victims in
the context of minimal or no support from immediate circle of friends and family
(Agarwal, 1998; Basu, 1999; Carroll, 1991; Engineer, 1995; Kannabiran and Menon,
2007; Mukhopadhyay, 1998; Parashar, 1997; Shirwadkar, 2009; Singh, 2013).
Research Methodology
This journal article is an offshoot of a doctoral study that examines the implementation
of the PWDVA in the metropolitan city of Kolkata, India. The Bourdieusian framework
of the...
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