lawyers in India

Domestic Violence Act, 2005-A Bane Or A Boon?

Written by: Aparna Das - Law Student
Constitutional Lawyers in India
Legal Service India.com
  • For long, the fairer sex has suffered at the hands of men, the exploitation ranges from physical to intangible abuse like mental and psychological torture. Women have been treated as child bearing machines, and if I may, then preferably male child bearing machines, push-over, to nothing but animals at the hands of men. Domestic violence is one of the gravest and the most pervasive human rights violation. For too long now, women have accepted it as their destiny or have just acquiescence their right to raise their voice, perhaps, because of the justice system or the lack of it or because they are vulnerable, scared
    of being ostracized by their own because domestic violence still remains a taboo for most women who suffer from it or for other reasons best known to them. But not any more! Women gear up-take control because here comes the domestic violence act, 2005

    This piece of legislation, in my view has been long over due. It is a comprehensive law and addresses all issues related to women. It is for the first time that an act has been made to address women's issues in such detail. The Act is an extremely progressive one not only because it recognizes women who are in a live in relationship but also extends protection to other women in the household, including sisters and mothers thus the Act includes relations of consanguinity, marriage, or through relationships in the nature of marriage, adoption, or joint family thus, 'domestic relationships' are not restricted to the marital context alone.

    In fact the Act has given a new dimension to the word abuse because unlike the primitive notion abuse includes actual abuse or threat of abuse, whether physical, sexual, verbal, economic and harassment by way of dowry demands and thus, under the new law;

    # Harassment by way of unlawful dowry demands on the woman or her relatives also comes under this definition.
    # The law will cover those women who are or have been in a relationship where both parties have lived together in a shared household , and are related by marriage or adoption.
    # Preventing one's wife from taking up a job or forcing her to leave job are also under the purview of the Act
    # One of the most important features of the Act is that it also provides a woman a right to reside in the matrimonial and shared household, whether or not she has any title in the household.
    # Husbands or live-in partners who would be guilty of domestic violence can be put behind bars for a year and fined Rs 20,000
    # And all crimes in the Domestic Violence Act are non-bailable
    In addition to physical violence of beating, slapping, hitting, kicking and pushing, the Act also covers sexual violence like forced intercourse, forcing his wife or mate to look at pornography or any other obscene pictures or material and child sexual abuse. The new law also addresses sexual abuse of children and forcing girls to marry against their wishes. This certainly proves that the new Act has been formed keeping the current relationship culture in India and the irregularities in the previous Domestic Violence Laws in mind.

    The Act has also defined Physical Violence very comprehensively, as:
    * Any kind of bodily harm or injury
    * A threat of bodily harm
    * Beating, slapping and hitting.
    Thus, physical violence is defined as any act or conduct which is of such a nature as to cause bodily pain, harm, or danger to life, limb, or health, or an act that impairs the health or development of the person aggrieved, or that includes assault, criminal intimidation and criminal force.

    But violence against women is not always physical. For the first time, the law has expanded the definition to include sexual, verbal and economic violence

    Under the law, Sexual Violence will include:
    * Forced sexual encounter
    * Forcing a woman to look at pornography or any obscene pictures
    * Any act of sexual nature to abuse, humiliate or degrade a woman's'
    integrity.

    The new law is also tough on men who subject women to name calling or verbal abuse. While Verbal Violence is often trivialized as unimportant, observers say it can damage a woman's self-esteem.

    The Act defines Verbal Violence as:

    # Name calling
    # Any kind of accusation on a woman's character or conduct
    # Insults for not bringing dowry
    # Preventing a woman from marrying a person of her choice
    # Any form of threat or insults for not producing a male child.
    Another significant step has been to recognize Economic Violence. Under the Act, Economic Violence is:
    # Not providing money, food, clothes, medicines
    # Causing hindrance to employment opportunities
    # Forcing a woman to vacate her house
    # Not paying rent.

    As is apparent the inclusion of economic violence is a very forward-thinking and important part of this definition. The deprivation of economic or financial resources to which the aggrieved woman or child is entitled under law or custom, or which the person aggrieved requires out of necessity, can be claimed under the provisions of this law; withholding such resources now falls under the category of economic abuse. This provision comes into play in instances of marital disputes, where the husband tends to deprive the wife of necessary money as a weapon. The law also sees a husband who sells off his wife's jewellery and assets as being guilty of economic abuse.

    Under the Act the law provides for the setting up and function of Protection Officers. The State Government will appoint protection officers to help the affected women. These protection officers are likely to be appointed in every district across the country, helping the victims file cases before the magistrates. According to the provisions of the Act, the woman will be given complete protection. Her 'tormentor' would be ordered not to attempt to communicate with her, including at her workplace. The court can pass 'protection orders' so that the charged person will not cause violence to the woman's relatives. Apart from this, the woman can rightfully continue to live under the same roof with the man while fighting him in the court. According to the Act, the woman will have the right to a 'secure housing ' in the matrimonial or shared household. The PO will assist the court in making a Domestic Incident Report or an application for a protection order on behalf of the aggrieved woman and/or child. POs will ensure that aggrieved people are provided legal aid, medical services, safe shelter and other required assistance. POs will ensure that necessary information on service providers is provided to the aggrieved woman, and that orders for monetary relief are complied with. Importantly, the PO can be penalised for failing/refusing to discharge his duty, with the proviso that prior sanction of the state government is required.

    The other relief envisaged is that of the power of the court to pass protection orders that prevent the abuser from aiding or committing an act of domestic violence or any other specified act, entering a workplace or any other place frequented by the abused, attempting to communicate with the abused, isolating any assets used by both the parties.

    It also provides for a breach of protection order or an interim protection order by a respondent as a cognizable and non-bailable offence punishable with imprisonment for a term, which may extend to a year or with a fine, which may extend to twenty thousand rupees or with both.

    Similarly, non-compliance or discharge of duties by the Protection Officer is also sought to be made an offence under the Act with similar punishment.

    An important addition to the law ensures that an aggrieved wife, who takes recourse to the law, cannot be harassed for doing so. Thus, if a husband is accused of any of the above forms of violence, he cannot during the pending disposal of the case prohibit/restrict the wife's continued access to resources/ facilities to which she is entitled by virtue of the domestic relationship, including access to the shared household. In short, a husband cannot take away her jewellery or money, or throw her out of the house while they are having a dispute.

    A woman who is the victim of domestic violence will have the right to the services of the police, shelter homes and medical establishments. She also has the right to simultaneously file her own complaint under Section 498A of the Indian Penal Code.

    Sections 18-23 of the Act provide a large number of avenues for an abused woman to get relief. She can get, through the courts, Protection Orders, Residence Orders, Monetary Relief, Custody Order for her children, Compensation Order and Interim/ Ex parte Orders.

    But all said and done there are some protests that the Act can be misused to blackmail men. There would be certain cases where the complaint is legitimate, but also cases where the complaint could be fabricated or concocted and that the Act will be misused by immoral wives to get rid of husbands and indulge in infidelity rather than those who are really tormented by husbands.

    So far, sections 498(A) (husband or relative of husband of a woman subjecting her to cruelty), 304/B (dowry death), 306 (abetment to suicide) of the Indian Penal Code was the only weapon which women had for fighting cruelty against her. Apparently the section was more misused than used the act is an extension of these sections and there are all possibilities of it being mis-used. But why not look at it with a different perspective, that these sections are not against men but are in favour of women.

    However before we jump to perverse conclusions it is pertinent to note that the law says -any definition of domestic violence must detail the fact that it is a human rights violation. Further, the law details the different forms of violence faced by women, and ensures that such interpretations are not left solely to the discretion of the judges. And as for misuse, the investigating machinery can ensure that the complaints are genuine, not faked.

    Therefore, in my view not every case can be listed under the Act so easily so as to torment these aggrieved husbands therefore this Act isn't essentially an anti-men biased Act as is being claimed.

    Whether or not the act will be mis-used or not only time will tell for there cannot be any perceptible change in women's status overnight. It will take at least a decade before things change This bill will provide them a safeguard and a sort of sword in their hand so that they will not be seen as an animal, or a shoe that you can wear anytime and throw anytime but at least some women would benefit which would set a precedent for others.

    The author can be reached at: aparnadas3@legalserviceindia.com / Print This Article

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