At the very outset, I want to make it crystal clear that this
article is not against the The Protection of Women from Domestic Violence
Act, 2005 (hereinafter called The Act). This article only aims at
out the positives and negatives of this act. It is based wholly on
Utilitarian aspect ( Theory of Utility aims at pursuing that goal
make that law which aims at producing greatest happiness for
number of people. In our respect it means that one should should
the law on grounds of its goodness or badness. (Utility Theory
Jeremy Bentham to Daniel Kahneman ).
Pandora's Box is what I will call this Act at this point of time
never know where this Act will lead us to. All what is discussed
this article/project is wholly my understanding and analysis to
which could prove out to be wide of the mark.
Indian women have always been considered to be downtrodden section
the society. Men have always treated women like dirt under one's
(More so in the Indian context). Deplorable has been the pathetic
condition of women in Ancient India. Although, efforts were made,
in Shastras & Puranas ,to electrify and exalt the image of women
associating it with Goddess Durga. Yet, it is ironical that India
the patriarchal (The society in which a male person is considered
the head of the family) or male-dominated society.
Our Constitution urges for
equality & dignity of all humans
Article 15 states that state shall not discriminate against any
on grounds of religion, race, caste, sex, place of birth or any of
or subject them to any ?disability, liability or restriction? on
account. But even the Constitutional norms are violated without
slightest bit of hesitation. The list of crimes that are committed
against women seems enormous, varying from simple harassment,
or mental torture, to even denying the very right to exist.
(3), gives power to the legislature to make special laws for
Exercising this power, the legislature enacted this act which
against domestic violence. The law is yet to be implemented and
therefore it seems to be a good time to scrutinize this act. The
contains five chapters and 37 sections.
Domestic Violence: A Prologue
Domestic of Family violence is one of the leading causes of female
injuries. It primarily effects women and operates to diminish
autonomy and sense of self-worth. Presently, domestic violence is
concerned under Section 498 A of the Indian Penal Code, 1860. This
section eventually proved out to be insufficient. Thus the
was enacted for effective protection of the rights of the women
guaranteed under the Constitution.
Section 3 of the Act defines Domestic violence . The definition
all the aspects of domestic violence & hence makes it almost
to find any flaw. According to this section, any act, omission,
commission or conduct of the respondent constitutes
under this section. However, one of the safeguard provided in the
Explanation II which states that in order to find out whether
violence is present or not, the overall facts and circumstances of
case shall be taken into considerations.
Features Of The Act
(2) The definition of an 'aggrieved' person' is equally wide and
not just the wife but a woman who is the sexual partner of the
irrespective of whether she is his legal wife or not. The
mother, sister, child (male or female), widowed relative, in fact,
woman residing in the household who is related in some way to the
respondent, is also covered by the Act
(3) The respondent under the definition given in the Act is "any
adult person who is, or has been, in a domestic relationship with
aggrieved person" but so that his mother, sister and other
not go scot free, the case can also be filed against relatives of
husband or male partner [Chapter. I, - Sec.2(a)].
(4) The information regarding an act or acts of domestic violence
not necessarily have to be lodged by the aggrieved party but by
person who has reason to believe that" such an act has been or is
committed. Which means that neighbours, social workers, relatives
can all take initiative on behalf of the victim. [ Chapter III -
(5) This fear of being driven out of the house effectively
women and made them silent sufferers. The court, by this new Act,
now order that she not only reside in the same house but that a
the house can even be allotted to her for her personal use even if
has no legal claim or share in the property. [Chapter IV ? Sec.
(6) S.18 of the same chapter allows the magistrate to protect the
from acts of violence or even "acts that are likely to take place"
the future and can prohibit the respondent from dispossessing the
aggrieved person or in any other manner disturbing her
entering the aggrieved person's place of work or, if the aggrieved
person is a child, the school.
(7) The respondent can also be restrained from attempting to
in any form, whatsoever, with the aggrieved person, including
oral, written, electronic or telephonic contact" . The respondent
even be prohibited from entering the room/area/house that is
her by the court.
(8) The Act allows magistrates to impose monetary relief and
payments of maintenance. The respondent can also be made to meet
expenses incurred and losses suffered by the aggrieved person and
child of the aggrieved person as a result of domestic violence and
also cover loss of earnings, medical expenses, loss or damage to
property and can also cover the maintenance of the victim and her
(9) Sec.22 allows the magistrate to make the respondent pay
and damages for injuries including mental torture and emotional
caused by acts of domestic violence.
(10) Sec.31 gives a penalty up to one year imprisonment and/or a
to Rs. 20,000/- for and offence. The offence is also considered
cognisable and non-bailable.
(11) Sec. 32 (2) goes even further and says that "under the sole
testimony of the aggrieved person, the court may conclude that an
offence has been committed by the accused"
(12) The Act also ensures speedy justice as the court has to start
proceedings and have the first hearing within 3 days of the
being filed in court and every case must be disposed of within a
of sixty days of the first hearing.
(13) It makes provisions for the state to provide for Protection
Officers and the whole machinery by which to implement the Act.
(14) The act enuciates the certain duties of central and state
government to make wide publicity & training programs for the
(15) The Act also provides for the assistance of welfare experts
found necessary by the Magistrate.
(16) The Act also provides for the penalty for not discharging
This Act Be Misused?
Misuse of the act, like all such acts in India , cannot be ruled
fact, with a system as corrupt as ours, money, clout and muscle
will always call the shots. And as long as the woman stays a
pawn in the hands of her male relatives, she will always be
and used. The chances of the act being misused are enormous. We
seen in past how The Dowry Prohibition Act, 1961 has been misused
the side of the so-called aggrieved person.
The definition of Domestic Violence is too wide for my liking. How can the court ensure that the complaints of the
right or not. The presence of the Malafide intentions on part of
party to harass the other cannot be ruled out.
Sometimes in camera proceedings can protect the aggrieved woman
lot of humiliation and shame especially in cases where explicit
sexual abuse and violence are being discussed in an open court and
allows for her dignity and privacy to be maintained. But, we have
seen trials where the in camera proceedings only intimidated the
aggrieved in favour of the respondent. This is especially so when
aggrieved is the only woman in court facing a completely male
hostile, sneering magistrates, lawyers, officials, police, male
respondent etc. The solution is to change this section to only
in camera proceedings. Not when either party so desires but only
aggrieved party so desires. Also, the aggrieved party should be
to be accompanied by any relative/woman social worker etc. of her
for moral support.
There is also a doubt as to whether this Act can be thoroughly
implemented by the administrative bodies. Can the Police, Protection
Officers and NGO's do there work efficiently.
· But there is no doubt that with this Act a whole Pandora's Box
litigation will be thrown open and all the degradation, brutality
cruelty to women that has been carefully swept under the carpet
centuries in our 'old, rich heritage and
civilization' is all
going to be exposed - and about time.
This Act Change The Mentality Of The Indian Society?
The Act can be called as the budding steps in the field of Women's
emancipation. There is a hell lot of steps to be taken fir
complete justice. In my view as long as the mentality of the
class is changed, the women can never come up.
Are The Real Victims?
Is it the rural women or is it the urban women who are the real
In my view, it is the rural women who are victims of domestic
more than the urban women. The Act should is to be implemented
effectively in rural areas so as to make it successful. The
should ensure for a wide publicity in these areas through every
The bourgeois system whereby women, especially poor working women
doubly enslaved, cannot offer any long-term solution for the
emancipation of women or their freedom from violence. It is only
socialism that can truly emancipate women by not only making her
under law and giving her every legal protection but, far more
reversing the injustices of the past thousands of years by
the means of production, bringing the woman back into social
and decision-making, freeing her of her domestic enslavement by
state taking responsibility through crèches, community kitchens,
old-peoples' homes etc. Am I against the Act No, not at all. But
limitations must be kept in mind. Within the existing unjust and
bourgeois system here is an act of legislature that gives
women some respite, but a very temporary one as it will not end
hypocrisy of bourgeois monogamy. Hopefully, the contradictions
so heightened that society will have to go in for more
solutions. According to Karl Marx, when the thesis (female
clash with the anti-thesis (Male Society) then there will be
of Anti-thesis (equality).