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Prologue
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
bringing
out the positives and negatives of this act. It is based wholly on
the
Utilitarian aspect ( Theory of Utility aims at pursuing that goal
or
make that law which aims at producing greatest happiness for
greatest
number of people. In our respect it means that one should should
analyze
the law on grounds of its goodness or badness. (Utility Theory
from
Jeremy Bentham to Daniel Kahneman ).
Pandora's Box is what I will call this Act at this point of time
as we
never know where this Act will lead us to. All what is discussed
under
this article/project is wholly my understanding and analysis to
this act
which could prove out to be wide of the mark.
Introduction
Indian women have always been considered to be downtrodden section
of
the society. Men have always treated women like dirt under one's
feet
(More so in the Indian context). Deplorable has been the pathetic
condition of women in Ancient India. Although, efforts were made,
even
in Shastras & Puranas ,to electrify and exalt the image of women
by
associating it with Goddess Durga. Yet, it is ironical that India
became
the patriarchal (The society in which a male person is considered
to be
the head of the family) or male-dominated society.
Our Constitution urges for
equality & dignity of all humans
being.
Article 15 states that state shall not discriminate against any
citizen
on grounds of religion, race, caste, sex, place of birth or any of
them
or subject them to any ?disability, liability or restriction? on
that
account. But even the Constitutional norms are violated without
the
slightest bit of hesitation. The list of crimes that are committed
against women seems enormous, varying from simple harassment,
physical
or mental torture, to even denying the very right to exist.
Article 15
(3), gives power to the legislature to make special laws for
women.
Exercising this power, the legislature enacted this act which
deals
against domestic violence. The law is yet to be implemented and
therefore it seems to be a good time to scrutinize this act. The
new act
contains five chapters and 37 sections.
Chapter I
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
women's
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
impugned act
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
covers
all the aspects of domestic violence & hence makes it almost
impossible
to find any flaw. According to this section, any act, omission,
commission or conduct of the respondent constitutes
domestic
violence
under this section. However, one of the safeguard provided in the
Act is
Explanation II which states that in order to find out whether
domestic
violence is present or not, the overall facts and circumstances of
the
case shall be taken into considerations.
Chapter II
Main
Features Of The Act
(2) 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
(3) 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 [Chapter. I, - Sec.2(a)].
(4) The information regarding an act or acts of domestic violence
does
not necessarily have to be lodged by the aggrieved party but by
"any
person who has reason to believe that" such an act has been or is
being
committed. Which means that neighbours, social workers, relatives
etc.
can all take initiative on behalf of the victim. [ Chapter III -
Sec.
4.]
(5) This fear of being driven out of the house effectively
silenced many
women and made them silent sufferers. The court, by this new Act,
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. [Chapter IV ? Sec.
17]
(6) 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.
(7) 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.
(8) 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.
(9) Sec.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.
(10) Sec.31 gives a penalty up to one year imprisonment and/or a
fine up
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
complaint
being filed in court and every case must be disposed of within a
period
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
police
officers.
(15) The Act also provides for the assistance of welfare experts
if
found necessary by the Magistrate.
(16) The Act also provides for the penalty for not discharging
duty of
Protection Officer.
Chapter III
Can
This Act Be Misused?
Misuse of the act, like all such acts in India , cannot be ruled
out. In
fact, with a system as corrupt as ours, money, clout and muscle
power
will always call the shots. And as long as the woman stays a
puppet or
pawn in the hands of her male relatives, she will always be
manipulated
and used. The chances of the act being misused are enormous. We
have
seen in past how The Dowry Prohibition Act, 1961 has been misused
from
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
affected
party is
right or not. The presence of the Malafide intentions on part of
one
party to harass the other cannot be ruled out.
Sometimes in camera proceedings can protect the aggrieved woman
from a
lot of humiliation and shame especially in cases where explicit
acts of
sexual abuse and violence are being discussed in an open court and
it
allows for her dignity and privacy to be maintained. But, we have
also
seen trials where the in camera proceedings only intimidated the
aggrieved in favour of the respondent. This is especially so when
the
aggrieved is the only woman in court facing a completely male
phalanx of
hostile, sneering magistrates, lawyers, officials, police, male
respondent etc. The solution is to change this section to only
allow for
in camera proceedings. Not when either party so desires but only
if the
aggrieved party so desires. Also, the aggrieved party should be
allowed
to be accompanied by any relative/woman social worker etc. of her
choice
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
of
litigation will be thrown open and all the degradation, brutality
and
cruelty to women that has been carefully swept under the carpet
for
centuries in our 'old, rich heritage and
civilization' is all
going to be exposed - and about time.
Will
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
prevailing
complete justice. In my view as long as the mentality of the
Indian male
class is changed, the women can never come up.
Who
Are The Real Victims?
Is it the rural women or is it the urban women who are the real
victims.
In my view, it is the rural women who are victims of domestic
violence
more than the urban women. The Act should is to be implemented
effectively in rural areas so as to make it successful. The
government
should ensure for a wide publicity in these areas through every
means
possible.
Conclusions
The bourgeois system whereby women, especially poor working women
are
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
equal
under law and giving her every legal protection but, far more
important,
reversing the injustices of the past thousands of years by
socializing
the means of production, bringing the woman back into social
production
and decision-making, freeing her of her domestic enslavement by
the
state taking responsibility through crèches, community kitchens,
old-peoples' homes etc. Am I against the Act No, not at all. But
its
limitations must be kept in mind. Within the existing unjust and
unequal
bourgeois system here is an act of legislature that gives
oppressed
women some respite, but a very temporary one as it will not end
the
hypocrisy of bourgeois monogamy. Hopefully, the contradictions
will be
so heightened that society will have to go in for more
long-lasting
solutions. According to Karl Marx, when the thesis (female
society) will
clash with the anti-thesis (Male Society) then there will be
formation
of Anti-thesis (equality).
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The
Protection Of Women From Domestic Violence Act, 2005 : Dawn Of A
New Era
More
Articles:
The
author can be reached at:
bharat_hnlu@legalserviceindia.com /
