Violence and domestic abuse are considered a man's most heinous,
intolerable and deleterious weapon and rightfully, violence in a
relationship is inhuman behavior in its most pernicious form, which would
be anything but acceptable.
There had been a significant lacuna in the legal system to accommodate for cases of everyday domestic violence in the lives of women, something that has been restricted to the private domain. But this Act now seeks to eliminate this lacuna and eradicate the evil of domestic violence. Nonetheless, while providing for remedy, the Act has created various openings and prospects for abuse and misuse of this Act.The Domestic Violence Act is the latest mischievous sprite introduced to conform to the concept of protective discrimination by making special provisions for women. The Act certainly provides for shielding women from any sort of domestic violence in a relationship and the Act has specifies a comprehensive definition of domestic violence. In S.3 of the 2005 Act, domestic violence is defined in terms of mental, physical, sexual, verbal, emotional and economic abuse. But despite of having such a virtuous intention, its ambiguous realization has paved way for a great controversy with feminist groups and men contributingly harping for equality as this Act has the potential of being used by women to harass men.
This law was enacted by keeping in view the rights guaranteed under Articles 14,15 and 21 of the Constitution to provide for a remedy under the civil law, which is intended to protect the woman from being victims of domestic violence and to prevent the occurrence of domestic violence in the society . But this Act on the contrary, has provided for an elaborate mechanism for abuse by women and has certainly become a glaring example of inequality. The feminist groups unequivocally and unanimously hail the implementation of the Act while men think of being ransacked of all of their marital rights. The likelihood of it being misused is so immensely incalculable that it has given wakeful nights to men and has left his fate to the whims and fancies of their counterparts. This article will provide and insight into the Act and highlight the draconian nature of the Act through its anomalies and inherent ambiguities.
Before the inception of this Act, there was no specific Act for protecting women from undue discrimination and unjustified violence.
Though the Indian Penal Code had provisions, namely sections 304B and 498A, but they weren't adequate and satisfactory in checking the atrocities committed against women. Thus, a desperate need was felt for an Act which could specifically cater to this cause and help women attain a dignified status, and henceforth the bill was passed by the legislature in 2005 and it was brought in application in 2006 and was touted by union minister Renuka Choudhary as a the most progressive gift for women.
Inception of the Act
Domestic violence is undoubtedly a human rights issue and serious deterrent to development of a nation. This particular Act has been enacted in keeping with the various guidelines given by several International conventions and declarations. The Vienna Accord of 1994 and the Beijing Declaration and the Platform for Action 1995 have acknowledged this. The United Nations Committee on Convention on Elimination of All Forms of Discrimination Against Women (CEDAW) in its General Recommendation No.XII (1989) has also recommended that State parties should act to protect women against violence of any kind especially that occurring within the family.
The phenomenon of domestic violence is widely prevalent but has remained largely invisible in the public domain. This enactment purported to be an additional violence curbing mechanism to the already existing sections 304B and 498A in IPC, which lay down the punishment for dowry death and cruelty and harassment against a women by her husband or his relatives.
Creditable features of the ActAn important advance made by the Act in understanding the nature of domestic violence has been in the combination of civil and criminal remedies. While civil remedies can be tailored to meet the circumstances of each case, criminal sanctions provide a greater deterrent effect among perpetrators.
The preamble to this Act reads like a definition and covers the entire subject matter of the Act. Apart from stating that the Act is intended to effectively protect the rights of a women and to give them a decent and dignified status, it stresses on the need of an aggrieved women' to seek immediate relief, compensation and also rehabilitation.
The Act establishes adequate machinery to ensure effective protection. The Act creates an extraordinary post of a Protection officer who is charged with the responsibility of taking expeditious steps for providing timely relief and it also grants authority to the Magistrate to give sufficient relief in the form of maintenance orders, custody orders and compensation. The Act also creates a novel agency called the service providers' who are entrusted with the job of filing Domestic Incident Reports with the Magistrate. The act by itself does not punish the perpetrator of domestic violence. But if a case discloses any offences punishable under IPC, CRPC or Dowry prohibition Act, the Magistrate may then, frame appropriate charges to either try the case himself or he may commit it to Sessions Court if he may deem fit.
This act contains five chapters and 37 sections. Its main features are firstly that the term 'domestic violence' has been made wide enough to encompass every possibility as it covers all forms of physical, sexual, verbal, emotional and economic abuse that can harm, cause injury to, endanger the health, safety, life, limb or well-being, either mental or physical of the aggrieved person. This is a genuinely wide definition and covers every eventuality. Secondly, the definition of an 'aggrieved' person' is equally wide and covers not just the wife but a woman who is the sexual partner of the male irrespective of whether she is his legal wife or not. The daughter, mother, sister, child (male or female), widowed relative, in fact, any woman residing in the household who is related in some way to the respondent, is also covered by the Act . The respondent under the definition given in the Act is "any male, adult person who is, or has been, in a domestic relationship with the aggrieved person" but so that his mother, sister and other relatives do not go scot free, the case can also be filed against relatives of the husband or male partner.
S.18 of the same chapter allows the magistrate to protect the woman from acts of violence or even "acts that are likely to take place" in the future and can prohibit the respondent from dispossessing the aggrieved person or in any other manner disturbing her possessions, entering the aggrieved person's place of work or, if the aggrieved person is a child, the school. The respondent can also be restrained from attempting to communicate in any form, whatsoever, with the aggrieved person, including personal, oral, written, electronic or telephonic contact". The respondent can even be prohibited from entering the room/area/house that is allotted to her by the court.
The Act allows magistrates to impose monetary relief and monthly payments of maintenance. The respondent can also be made to meet the expenses incurred and losses suffered by the aggrieved person and any child of the aggrieved person as a result of domestic violence and can also cover loss of earnings, medical expenses, loss or damage to property and can also cover the maintenance of the victim and her children . S.22 allows the magistrate to make the respondent pay compensation and damages for injuries including mental torture and emotional distress caused by acts of domestic violence.
The Act provides for penalty up to one-year imprisonment and/or a fine up to Rs. 20,000/- for and offence . The offence is also considered cognizable and non-bailable under Section 31 while Section 32 (2) goes even further and states, "Under the sole testimony of the aggrieved person, the court may conclude that an offence has been committed by the accused".
The Act significantly ensures speedy justice as the court has to start proceedings and have the first hearing within 3 days of the complaint being filed in court and every case must be disposed of within a period of sixty days of the first hearing.
A critique of the Act
Women favoring AspectsIn the garb of providing protection, this legislation in fact, strikes at the very foundation of marriage by promoting intolerance and encouraging unnecessary litigation even for petty domestic disputes. The law is based on a totally wrong notion and assumes men as the sole perpetrators of domestic violence. This is altogether a wrong impression and only confirms the gender bias in favor of women created by this law. Giving of such sweeping legal powers to women while withholding protection to male victims is tantamount to systematic legal victimization of men . The law is wholly gender specific and rules out any possibility of domestic violence against a man . The law confers rights in a woman without imposing any liability, while a man is overburdened with discriminative liabilities with total denial of rights.
The slack drafting of this law will allow cunning and unscrupulous women to teach a lesson to any of her male relative at her sole behest. Moreover any such frivolous claims will be treated as words of god or gospel of truth by virtue of this law . This has virtually empowered all women to punish men at their will. This law not only recognizes but also gives legal sanctions to apprehensions no matter how insignificant and fizzy, they are. The mere belief of a person, even a stranger, will be sufficient for reporting the matter to the protection officers. It can very easily become a weapon for women to extort money, as in such cases usually the police arrests the husband and in-laws. This arbitrary decision of the police to favor the daughter-in-law is a newfound ethic, to protect the rights and liberalization of women, even though it violates the principles of natural justice . A bizarre aspect of this Act is that it does not distinguish between actual abuse and threat of abuse and gives equal weightage to even a likelihood of abuse . Also in regards to the notion of emotional abuse, insults and verbal abuse enshrined in the Act, the terms in itself are extremely relative and subjective, often depending on one's mindset and shockingly, the husband does not have any recourse in case of any abuse by the wife.
Unlike other women protection laws, the Act almost gives a legal sanction to extortion of money by women under the guise of economic abuse . Refusal to pay any sum of money for whatsoever reason will attract the provisions of this law. Non-payment of rental related to the shared household will also constitute economic abuse even if the husband himself is devoid of sufficient resources or even if he is in jail. Another pertinent laxity that can be pointed out as also recently reiterated by the Supreme Court is that the definition of shared household as mentioned in the Act is vague and laid that the parents independent property in which the husband does not have any share will not amount to shared household.
Other Anomalies in the Act
Another substantiation of the Act being unreasonable and excessive is that in relation to the right of residence wherein by including the divorced wives, former girlfriends and former live-in partners in the list of women facing domestic violence, this Act gives enough leeway to women to harass innocent men and turn the heat on their former partners. Now even a traitorous woman cannot be thrown out of house as she can easily threaten her husband or in-laws of false domestic violence charges as the Act expressly mentions that incase of absence of any other evidence, her sole testimony shall be relied upon by the Magistrate in deciding the existence and extent of violence. The Act almost gives a legal sanction to any relationship, which is not at all socially acceptable like the live-in relationship. In addition to this the respondent is totally deprived of his legitimate rights over his property as he cannot alienate or dispose if an order is passed under the Act. On the contrary there is an added liability on his part to arrange for an alternate accommodation or pay the rent for the same.
Another certain home breaking implication of this Act is that as consanguinity is a necessary aspect of marriage, and as matter of fact a ground for separation under the marriage laws, one of the provisions of this Act bars the husbands from even asking, leave apart pressurizing, their wives for sex . Another perturbing feature is that as a protective measure or more so a biased feature conferred by this Act in the form of prohibition of any sort of communication to be made by the husband if there is a prima facie case.
An unusual oddity in this enactment is that the Magistrate has been entrusted with unaccountable power as he is invested with the responsibility to take cognizance of the case and also for executing his own orders in favor of the aggrieved women even without being approached for their execution. An additional disturbing aspect is that the Magistrate trying the case is required to evaluate not the individual incidence of violence, but the overall circumstances as well.
The major inappropriate implication would be that it would play down the chances of reconciliation in future. On one hand the Act punishes a man for forcing her wife to leave job while on other it provides maintenance to the very same wife. But the law does not provide for any such remedy to a male in any similar circumstance.
All the provisions of this Act, however, do not serve the purpose of effective implementation as the above examples, sometimes due to a lack of resources or due to extraneous factors. S.12 (4), for example, is a laudable provision, which makes it mandatory for the magistrate to hear a case within three days of the complaint being filed. The idea of prompt relief is carried on in s. 12(5), which directs the magistrate to finish hearing the case within six months of it reaching court. However, the overcrowding of courts makes it difficult to see if they can be practically realized.
A further criticism of the Act is with respect to S.14, which may prescribe counseling for either of the parties, and delay proceedings up to two months. As has been discussed earlier, addressal of domestic violence has always tended to focus on conciliation between the perpetrator and the victim, even within the criminal justice system. This is due to the judicial perceptions regarding the importance of preserving the family unit, even to the jeopardy of a victim of domestic violence. In recognition of this fact, a provision such as S.14 can be counterproductive in two ways. Firstly, it might jeopardize speedy disposal of the case, and secondly, it may also convince the aggrieved to continue in that situation without taking any further action.
The Act makes provision for the appointment of protection officers. Protection officers, as per the Act, are a group of officers whose duty is to assist the aggrieved party with the processing and completion of the domestic violence suit. The institution of protection officers is a useful one, emphasizing the need for societal intervention in order to prevent domestic violence, by directly addressing from an external standpoint the relationship of power and control in an abusive relationship. The problem however lies with the resources required for the creation of such a rung of officers.
The Supreme Court verdict
Since the Act is written in a negative language, it is essential to consider the Supreme Court judgement in respect of such statutes. The SC has aptly stated in a recent case that if a provision of law is couched in negative language implying mandatory character then the Courts shall interpret the provision, keeping in view the entire content in which the provision came to be enacted, and shall hold the same to be directory though worded in negative form.
Also in the first case on this Act before the Supreme Court , the Court has admitted and established certain evident ambiguities in the Act.The court in this particular case discussed the scope of sections 2,12,17 and 19. As provided by section 17,the court can now order that she not only reside in the same house but that a part of the house can even be allotted to her for her personal use even if she has no legal claim or share in the property. The Act also ensures speedy justice as the court has to start proceedings and have the first hearing within 3 days of the complaint being filed in court and every case must be disposed of within a period of sixty days of the first hearing.
The facts of the case were that respondent was married to son of Appellants and after their marriage and Respondent and her husband were staying in house owned by husband's mother. When Husband filed a divorce petition against the Respondent, the Respondent shifted to her parents place. She was prohibited to enter house of Appellants. She filed a Suit for a mandatory injunction to enable her to enter the house. The Trial Court granted temporary injunction restraining Appellants from interfering with right of Respondent to reside. On appeal, Senior Civil Judge dismissed temporary injunction application. The Respondent then filed a petition under Article 227 of the Constitution.
The Single Judge held that Respondent was entitled to reside in house, as that was her matrimonial home. Then the husband's parents appealed and the SC held that the house in question belonged to mother in law of Respondent and not to Respondent's husband and Respondent could not claim any right in said house. The Court also redefined the scope of various provisions relating to shared household' and compensation in the form of residential accommodation by stating that "Wife is only entitled to claim a right to residence in a shared household, and a shared household' would only mean house belonging to or taken on rent by husband, or house which belongs to joint family of which husband is a member." The Court while deciding on the issue of alternative accommodation laid down that in regards to Alternative accommodation under Section 19 (1)(f) of the Protection of Women from Domestic Violence Act, 2005, claim for alternative accommodation can only be made against husband and not against in-laws or other relatives.
The Act presently is heavily in favor of women. Chances of it being misused and scandalously abused are enormous. It can therefore, be well stated here, that this act could become a pawn in the hands of the so called aggrieved who can easily manipulate it for her advantage which can be well supported by these statistical researches, the most alarming of it being that in case of married couples, the male to female suicide ratio is 63:37 thus confirming that men are the ultimate targets. This Act should have ideally included stringent penal provisions for curtailing the instances of abuse and mishandling, but herein, instead various opportunities have been made available which can ultimately lead to its grave misuse and can thus act as a catalyst for breaking homes. Thus, this Act does not contain any provisions for creating awareness or for strengthening and preserving family as an institution or even providing chances for reconciliation or even scope for improvement to the husband. The main beneficiaries of this Act will obviously be women of propertied upper class. But there is no doubt that given the hypocritical, patriarchal and insensitive nature of the society, this Act would definitely be instrumental in putting an end to all the degradation and brutality meted out to women.
It is eventually, the neo collectivist and neo socialist approach which is needed in the society that can essentially free both men and women from shackles of brutality and ultimately put them on an equal pedestal in all respects. Women, who have for decades been silent victims of oppression and enslavement will now have a better chance of fighting the injustice without slightest of hesitation and it can be well summed up with the quote by Marx-that equal laws cannot be applied to unequal people . Thus, any enactment, which forcefully subjects a section of society to conduct and serve the other section at its willful pleasure, would only enhance the level of oppression in the society and leave incurable marks on the face of the most democratic society.
1) Section 3 defines the term domestic violence.
2) See, Bare Act, Statement of Objectives of the Act
3) See, Home is where the Law is" by Indira Jaisingh, Indian Express, 8 Sept. ;05
4) Bare Act-History of the Act and see,http//www.hindustantimes.com
5) See,(Ch.II, S.3) of the Act
6) See, (Ch.I, S.2 (a) of the Act
7) See, (Ch.IV, S.20) of the Act
8) See chapter V Sections 31 and 32
9) See, (Ch.IV, S.12 (a) (4) and (5)).of the Act
10) See, The Domestic Violence Law of India A Shield or a Sword?
11) Various studies in India and other countries have shown that even men suffer domestic violence at the hands of women. See, Anne Bransdon, The Nature of Domestic Violence Against Men; Charles E. Corry and at al, Controlling Domestic Violence Against Men Patricia Pearson, When She Was Bad Violent Women and the Myth of Innocence.
12) A breach of protection order can be concluded at the sole testimony of the aggrieved. See, Section 32(2) of the Act.
13) Section 4 of the Act allows any person having reasons to believe to report that any act of domestic violence is or will be committed.
14) Even a person having any gripe can misuse it to settle his personal scores.
15) See, Amjad Maruf, Domestic Violence Act, 2005 A recipe for broken marriages and relationships, November 03, 2006 (www.sulekha.com).
16) Section 4 of the Act.
17) See Verbal and Emotional Abuse under section 3 of the Act.
18) Section 3 of the Act defines as to what all constitutes economic abuse.
19) See Sexual Abuse under section 3 of the Act.
20) Section 18 of the Act.
21) S.B. Ghosh, "Contextualizing Domestic Violence", BEHIND CLOSED DOORS: DOMESTIC VIOLENCE IN INDIA (Rinki Bhattacharya ed., New Delhi: Sage Publications, 2004) at 54
22) See S.18 of act
23) Ravi Kusum v. Kanchan Devi, AIR 2005 SC 3304
24) 136 2007 DLTI SC, SR Batra v. Taruna Batra,Secs 2,12, 17 and 19 also referred
25) See, Srilata Swaminathan, On the Protect of Women from Domestic Violence Act (http//www.cpiml.org)
26) See, Karl Marx, Gotha Programme.
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