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Abstract
This commentary is on The Protection of Women from Domestic
Violence Act, 2005. This Act being one of the first in this sphere
has concretely dealt with the problem of domestic violence taking
into consideration all the related laws and has attempted to
reduce the numerous ancillary problems generally faced by such
legislations (such as impractical provisions). This legislation is
well placed in the Indian context and social scenario, clearly
reflective of the mindset of the Indian men.
The commentary primarily looks into the provisions of this Act
from the constitutional perspective – the Fundamental rights to be
particular. The main aim of the commentary is to bring to light
the numerous rights, most of which are constitutionally
guaranteed, of women who are protected directly or indirectly by
this Act. The all-encompassing nature of the legislation is
elucidated among the other positive aspects of this law. The Act
is thus a very vital piece of legislation from the feminist
perspective of law. However one of the main and primary criticisms
of the writers is that this Act intentionally or unintentionally
neglects to address the issue of child abuse among male children.
This persisting problem having been left without any such specific
laws requires quick and immediate addressal.
Introduction
Domestic violence is sadly a reality in Indian society, a truism.
In the Indian patriarchal setup, it became an acceptable practice
to abuse women. There may be many reasons for the occurrence of
domestic violence. From a feminist standpoint, it could be said
that the occurrence of domestic violence against women arises out
of the patriarchal setup, the stereotyping of gender roles, and
the distribution of power, real or perceived, in society.
Following such ideology, men are believed to be stronger than
women and more powerful. They control women and their lives and as
a result of this power play, they may hurt women with impunity.
The role of the woman is to accept her ‘fate’ and the violence
employed against her meekly.
The Protection of Women from Domestic Violence Act (or the
Domestic Violence Act) is a laudable piece of legislation that was
enacted in 2005 to tackle this problem. The Act in theory goes a
long way towards protection of women in the domestic setup. It is
the first substantial step in the direction of vanquishing the
questionable public/private distinction traditionally maintained
in the law, which has been challenged by feminists time and again.
Admittedly, women could earlier approach the Courts under the
Indian Penal Code (IPC) in cases of domestic violence. However,
the kinds of domestic violence contemplated by this Act, and the
victims recognised by it, make it more expansive in scope than the
IPC. The IPC never used the term domestic violence to refer to
this objectionable practice. In fact, the only similar class of
offences addressed by the IPC dealt with cruelty to married women.
All other instances of domestic violence within the household had
to be dealt with under the offences that the respective acts of
violence constituted under the IPC without any regard to the
gender of the victim. This posed a problem especially where the
victims were children or women who were dependant on the
assailant. In fact, even where the victim was the wife of the
assailant and could approach the Courts under S.498A of the IPC,
she would presumably have to move out of her matrimonial home to
ensure her safety or face further violence as retaliation. There
was no measure in place to allow her to continue staying in her
matrimonial home and yet raise her voice against the violence
perpetrated against her. This, together with many other problems
faced by women in the household, prompted this enactment. This
commentary focuses on the constitutional perspectives of this
progressive legislation.
Review of Important Provisions
The Act, in a bold break from prior legislations, gives a very
expansive definition to the term “domestic violence”, a term
hitherto not even used in legal parlance. Domestic violence is
defined in a comprehensive way in S.3 of the Act, comprising
# physical, mental, verbal, emotional, sexual and economic abuse,
# harassment for dowry,
# acts of threatening to abuse the victim or any other person
related to her.
The Act thus deals with forms of abuse that were either not
addressed earlier, or that were addressed in ways not as broad as
done here. For instance, it includes in its ambit sexual abuse
like marital rape which, though excluded under the IPC, can now be
legally recognised as a form of abuse under the definition of
sexual abuse in this Act. The definition also encompasses claims
for compensation arising out of domestic violence and includes
maintenance similar to that provided for under S.125 of the Code
of Criminal Procedure (CrPC). Nevertheless, the claim for
compensation is not limited to maintenance as allowed by that
provision. It is noteworthy that the maintenance available under
this section must be in correspondence with the lifestyle of the
aggrieved party. Lastly, the Act identifies emotional abuse as a
form of domestic violence, including insults on account of the
victim’s not having any children or male children.
Constitutional Perspectives
The enactment in question was passed by the Parliament with
recourse to Article 253 of the Constitution. This provision
confers on the Parliament the power to make laws in pursuance of
international treaties, conventions, etc. The Domestic Violence
Act was passed in furtherance of the recommendations of the United
Nations Committee on the CEDAW. The Act encompasses all the
provisions of the Specific Recommendations which form a part of
General Recommendation no.19, 1992.
Protection of Women and Fundamental Rights
The Statement of Objects and Reasons declares that the Act was
being passed keeping in view the fundamental rights guaranteed
under Articles 14, 15 and 21. Article 21 confers the right to life
and liberty in negative terms, stating that it may not be taken
away except by procedure established by law, which is required, as
a result of judicial decisions, to be fair, just and reasonable.
The right to life has been held to include the following rights
(which are reflected in the Act), among others:
1.
The right to be free of violence: In
Francis Coralie Mullin v.
Union Territory Delhi, Administrator , the Supreme Court stated,
any act which damages or injures or interferes with the use of
any limb or faculty of a person, either permanently or even
temporarily, would be within the inhibition of Article 21.
This right is incorporated in
the Act through the definition of physical abuse, which
constitutes domestic violence (and is hence punishable under the
Act). Physical abuse is said to consist of acts or conduct of such
nature that they cause bodily pain, harm,
or danger to life, limb or health, or impair the health or
development of the aggrieved person . Apart from this, the Act
also includes similar acts of physical violence and certain acts
of physical violence as envisaged in the Indian Penal Code within
the definition of domestic violence. By adoption of such an
expansive definition, the Act protects the right of women against
violence.
2.
The right to dignity:
In Ahmedabad Municipal Corporation v. Nawab Khan Gulab Khan
, the Supreme Court emphasised the fact that
the right to life included in its ambit the right to live with
human dignity, basing its opinion on a host of cases that had been
decided in favour of this proposition. The right to dignity would
include the right against being subjected to humiliating sexual
acts. It would also include the right against being insulted.
These two facets of the right to life find mention under the
definitions of sexual abuse and emotional abuse, respectively. A
praiseworthy aspect of the legislation is the very conception of
emotional abuse as a form of domestic violence. The recognition of
sexual abuse of the wife by the husband as a form of violation to
the person is creditable, especially as such sexual abuse is not
recognised by the IPC as an offence. These acts would fall within
the confines of domestic violence as envisaged by the Act, though
the definition would not be limited to it.
3.
The right to shelter: In
Chameli Singh v. State of U.P. , it
was held that the right to life would include the right to
shelter, distinguishing the matter at hand from
Gauri Shankar v.
Union of India where the question had related to eviction of a
tenant under a statute. Ss. 6 and 17 of the Domestic Violence Act
reinforce this right. Under S.6, it is a duty of the Protection
Officer to provide the aggrieved party accommodation where the
party has no place of accommodation, on request by such party or
otherwise. Under S.17, the party’s right to continue staying in
the shared household is protected. These provisions thereby enable
women to use the various protections given to them without any
fear of being left homeless.
Article 14 contains the equal protection clause. It affirms
equality before the law and the equal protection of the laws.
Article 14 prohibits class legislation , but permits
classification for legislative purposes. A law does not become
unconstitutional simply because it applies to one set of persons
and not another. Where a law effects a classification and is
challenged as being violative of this Article, the law may be
declared valid if it satisfies the following two conditions:
1. The classification must be based on some intelligible
differentia,
2. There must be a rational nexus between this differentia and the
object sought to be achieved by the law.
As a result of the ruling in cases such as Royappa v. State of
Tamil Nadu , any law that is arbitrary is considered violative of
Article 14 as well. This provision is significant in putting a
stop to arbitrariness in the exercise of State power and also in
ensuring that no citizen is subjected to any discrimination. At
the same time, it preserves the State’s power to legislate for a
specific category of people.
Article 15 disallows discrimination on the grounds of religion,
caste, sex, race, etc., but permits the State to make special
provisions for certain classes of persons, including women and
children.
The Domestic Violence Act promotes the rights of women guaranteed
under Articles 14 and 15. Domestic violence is one among several
factors that hinder women in their progress, and this Act seeks to
protect them from this evil. It indeed effects a classification
between women and men, protecting only women from domestic
violence, but this classification is founded on an intelligible
differential, namely, gender, and also has a rational nexus with
the object of the Act. Further, the Act is far from arbitrary, in
that it is a well-thought and necessary attempt to curtail
domestic violence and eventually vanquish it. It is to be
remembered that it is generally women who are the victims of
domestic violence, and not men. At this stage, it is also
essential to keep in mind Article 15(3) which empowers the State
to make legislations like this for the benefit of women, thus
creating an exception in their favour against the operation of
Article 15(1).
Where the Act Fails
The Act could play a stellar role in protection of women’s rights
in the household and in guarding them from domestic violence. In
the very first instance, a recognition of domestic violence as
something unacceptable, where it has become yet another social
practice, is necessary and indeed, commendable in a patriarchal
society. Having recognised the rights of women and the violation
of these rights, the next step taken is providing innovative and
efficacious remedies to enforce the same. The conceptualization of
the Act thus far is admirable.
However, one thing that the
writers feel is amiss in the Act is the fact that it brushes aside
male children. Though there are interpretations to the contrary,
it is the opinion of the writers that the Act does not extend its
protection to male children. Firstly, an aggrieved person as
defined by the Act, is a woman who is, or
has been in a domestic relationship with the respondent .
While the Act does define a child as
any person below the age of eighteen years, the definition of
domestic violence itself refers at all stages only to an
aggrieved person and not to a child;
the only relevant place in which a child is mentioned is S.18(c),
where it is stated that a Magistrate may pass a protection order
restraining the respondent from entering the school of the child
where the aggrieved person is a child. It is the opinion of the
writers that this in itself is not sufficient to construe the Act
as applicable to male children as well.
Arguably, it could be said that the Act was passed to cater to the
needs of women and not boys. After all, the very title of the Act
indicates that it has been enacted to protect the rights of women.
Yet, it must be kept in mind that domestic violence, though
predominantly faced by women, be they wives, mothers, sisters or
daughters, is also aimed against male children at times. It seems
a poor excuse to say that male children should not be provided
easily accessible relief from domestic violence simply because of
their gender. Even if other forms of violence could be adequately
addressed by the IPC (though this hardly seems the case), it is a
fact that the sexual abuse of male children cannot be redressed in
any apposite manner by it. Reference may be had to the Sakshi case
, and the subsequent 172nd Law Commission report, where it was
argued, among other things, that the offence of rape as addressed
in the IPC be defined in gender-neutral terms, so that the
protection could be extended to male children as well. This was
necessary keeping in mind the increased and increasing instances
of sexual abuse of children, male and female. Once it is acceded
that male children are affected as much by sexual abuse by female
children, it must be accepted that they need to be protected from
such abuse within the “private” sphere too. On the face of it,
there seems to be no concrete reason for denying male children
protection from domestic violence.
Evaluation
The Act, by and large, is a valuable piece of legislation. Its
shortcomings do not, on final analysis, blot out the immense
benefit the Act could be of to women. A good thing about the Act
is the fact that it deals with domestic violence regardless of the
religion of the parties, as many a time wrongs are perpetrated (ab)using
the protection afforded by personal laws. It is thus secular in
outlook in protecting women’s rights. It also does take up for
consideration child sexual abuse, though in a limited sense (male
children being excluded from its purview), at a time when the
practice has become rampant. The authors further consider it
desirable to extend the Act and allow its application to male
children who are also affected by domestic violence, considering
the nature of the practice, and recommend such an extension. While
saying that the Act is protected by Article 15(3) from being
considered discriminatory, it would help to recollect that this
provision creates an exception in favour of women and children,
and thus could be made use of to justify the extension of the Act
to male children as well. Indeed, it would seem logical to do so.
It is, however, opined that it is too early to predict the
usefulness of this legislations to its target beneficiaries and
the society as a whole. It needs to be seen whether the
practicality of the Act has been ensured by the legislature and
also the responsibility of implementation lies in the hands of the
executive which will be the actual scale for measuring the
effectiveness of this Act.
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The Domestic Violence Act: Constitutional Perspectives
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The
author can be reached at: harinisudersan@legalserviceindia.com /
