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Protection of Women against Domestic Violence and Maintenance

Domestic violence is regarded as a serious social evil and India is one of the countries with High incidences of domestic violence. Domestic violence is a problem that affects millions of people regardless of race, gender, ethnic group, socioeconomic status, sexual orientation, or age.[1]

Domestic violence is most commonly used to refer to violence within an intimate relationship in which one partner uses a pattern of assault and intimidating acts to assert power and control over the other partner.[2] Although these violence, predominantly comprise victimizing of woman.[3] Most woman view domestic violence as a family problem and chose to keep it quiet. The same attitude is prompt by neighbours and police officers, courts to dismiss wife-beating as a private affair, even an acceptable way of disciplining one’s partner.[4]

In India, there are laws such as Protection of Woman from Domestic Violence Act, 2005, various amendments made in Criminal Law to govern many acts which tarnish the modesty and harms their esteem.

The concept of maintenance has subsisted in our society since long as a measure to protect the interests of a divorced women and also providing her with some basic economic measures to sustain a dignified life. Maintenance as a specific term has been explained in the Section 3(b)[5] of the Hindu Adoptions and Maintenance Act, 1956.The question of maintenance is still the most doubted because there had been some substantial judgments made on whether the wife should be given maintenance under the Domestic Violence Act, 2005. As it is the most important part against the claim of domestic violence for the wife. The term maintenance has been discussed in the Domestic Violence Act, 2005 as the term “Monetary Relief” in the Section 2(k)[6] and further the specific in Section 20(1)(d)[7].

Domestic Violence and The Concept of Maintenance

The concept of Monetary Relief is discussed in the section 20(1)[8] of the Protection of Women from Domestic Violence Act, 2005, Section 24[9] of The Hindu Marriage Act and Section 18 Hindu Adoptions and Maintenance Act, 1956. There had been some recent judgements under these provisions of the act which says that no monetary relief under section 20 of the act could be granted unless the domestic violence is proved. If a woman fails to establish domestic violence against her by the husband then her children cannot be given monetarily relief under the Protection of Woman against Domestic Violence, the high court recently ruled.[10]

The concept of maintenance in India is covered both under Section 125 of the Code of Criminal Procedure, 1973 and the personal laws. The term maintenance under Indian law, includes a right to food, clothing and shelter, being typically available to the wife, children and parents. It is a measure of social justice and an outcome of the natural duty of a man to maintain his wife, children and parents when they are unable to maintain themselves[11].

A three-Judge Bench in Vimla (K.) v. Veeraswamy (K.)[12], while discussing the basic purpose under Section 125 of the Code, opined that Section 125 of the Code is meant to achieve a social purpose. The object is to prevent vagrancy and destitution. It provides a speedy remedy for the supply of food, clothing and shelter to the deserted wife.[13]

There is a misconception that a working woman is not entitled to claim maintenance as she is earning and is thus able to maintain herself. The Indian courts have recognised the right of maintenance of a working woman and held that an estranged woman can claim maintenance from her husband even if she earns a monthly income, which is not enough for her to maintain herself. Thus, earning wife is entitled to maintenance under maintenance law for wife in India.

The provisions are hereby so provided so as to protect the women and children. Violence against woman is a manifestation of historically unequal power relations between men and woman, which have led to domination over and discrimination against woman by men and to do prevention of the full advancement of woman.[14]

There is no such universally accepted definition of violence against woman. Some human rights activist preferred the broad definition, includes; structural violence such as ‘poverty’ and unequal access to health and education.[15] In the case of Savita Bhanot v. Lt.co. V.D Bhanot[16] case filed under Domestic Violence Act, was maintainable even if the Act of Domestic Violence have been committed prior to the coming into force of the Act.

Any act of gender-based violence that results in, or is likely to result in, physical, sexual or psychological harm or suffering to women, including threats of such acts, coercion or arbitrary deprivation of liberty, whether occurring in public or in private life.[17]And so as a result of it are required the provisions of protection of women against the Domestic Violence Act, 2005Violence against woman is present in every country, cutting cross boundaries of culture, caste, education, income, ethnicity and age.[18]Domestic violence happens in rural areas, towns, cities and in metropolitans as well. Irrespective of social classes, genders, racial aspects and age groups we find domestic violence happening in Indian households.[19]

Domestic Violence and Law

Domestic violence in India is endemic.[20] Around 70% of woman in India are victims of domestic violence. [21] Domestic violence was legally addressed in the 1980s when the 1983 Criminal Law Act introduced Section 498A[22] “Husband or relative of husband of a woman subjecting her to cruelty”.

The National Crime Records Bureau reveal that a crime against a woman is committed every three minutes, a woman is raped every 29 minutes, a dowry death occurs every 77 minutes, and one case of cruelty committed by either the husband or relative of the husband occurs every nine minutes.[23] This occurs despite the fact that women in India are legally protected from domestic abuse under the Protection of Women from Domestic Violence Act.[24]

The Protection of Women from Domestic Violence Act 2005 is an Act of the Parliament of India enacted to protect women from domestic violence, came to force in 26 October 2006. This act differs from Section 498A of IPC, as it provides broader definition of Domestic Violence, Section 3[25] of the Act define the Domestic Violence. The Act goes on, through the section Explanation 1, to define physical abuse, sexual abuse, verbal and emotional abuse and economic abuse.[26]

In the case of Abdul Rub v. Razia Begum[27] under Domestic Violence Act every relative of the Husband cannot be made as a respondent. Only those persons can be made respondent, who satisfy the definition of section 3(q) of the Act.

There are various regulations or provisions being made for protection of women against domestic violence under the statute such as Sec.304B of IPC pertaining to dowry death. A complaint can also be filed under section 498A of IPC for cruelty which also falls under domestic violence.[28]

The Criminal Law Amendment 2013, which amended several sections of Indian penal Code, Criminal Procedure of Code, and the Indian Evidence Act. Sexual assault and rape were clarified and added on. Penalties for such abuse were made much severe and were increased. Introduction of New offence that are punishable by law were amended as well.[29] These includes Acid Attacks[30], Stalking[31], publicly and forcefully disrobing woman.[32]

From time immemorial women are subject to Violence, but the contemporary situation has been changed. Introduction of new laws in society, which safeguard the women’s right is been misused in number of ways. IPC section 498A which lays down Husband or relative of husband of a woman subjecting her to cruelty.[33] In the case of Sou Sandhya Manoj Wankhede v. Manoj Bhimrao Wankhede[34], here the wife was just three months after her marriage she was brutally beaten up and was hospitalised due to such. Ultimately, she filed a complaint under section 498A of IPC.

In the case of Shashi Bala v. State of Uttarakhand, the case was evoked by applicant stating, that her in-laws and other family members after her husband death had been subjugated to violence by them. But ultimately it was found out that the case filled was forge and the Principle of Domestic Violence is not applicable as the Applicant and the Respondent were not in any domestic relationship and were against the section 2(f) of Domestic violence Act.

Female which recently got to know about their rights are misusing it in many ways, and hence there have been large number of cases continue to be filed under this section. For the prevention of misuse of this section Supreme Court had issued new guidelines in the Landmark case of Rajesh Sharma & v. State of UP.[35]

In the case Chitrangathan v. Seema[36],High Court of Kerala, ruled that while protecting the rights of a woman, the court has to be careful and cautions in not violating the rights of the male also under Domestic Violence Act, 2005.

Maintenance under various other statutes

  • Criminal Procedure Code – Section 125
  • The Hindu Marriage Act – Section 24
  • The Hindu Adoption and Maintenance Act- Section 18
  • As per other Personal Laws

The Criminal Procedure Code

Maintenance is an essential right of destitute wife, children, and parent as per the law and the basic object of this law is to protect the wife, children, and parents from vagrancy and destitution. The Supreme Court in Captain Ramesh Chander Kaushal v. Veena Kaushal[37] stated that, “Section 125 Criminal Procedure Code is a measure of social justice and is specially enacted to protect women and children and as noted by this Court in falls within the constitutional sweep of Article 15(3) reinforced by Article 39 of the Constitution of India. It is meant to achieve a social purpose.”

This remedy is provided under criminal procedure because the legislature wanted to speed up the procedure of getting maintenance instead of the slow procedure of civil suit. Hence, a starving wife may get alimony faster under section 125 than section 24 of the Hindu Marriage Act.

The Supreme Court in the case of Bhuwan Mohan Singh v. Meena[38] observed that: “Be it in germinated that Section 125 of the Code of Criminal Procedure was conceived to ameliorate the agony, anguish, financial suffering of a woman who left her matrimonial home for the reasons provided in the provision so that some suitable arrangements can be made by the Court, and she can sustain herself and also her children if they are with her.”

Hindu Marriage Act 1955

Section 24 and 25 of the Hindu Marriage Act, 1955 deals with the interim alimony and permanent alimony. The scope of Section 125 of Criminal Procedure Code and Section 24 of the Hindu Marriage Act are very different. Once an order is passed under this section, no matter what happens in the petition thereafter, the liability to pay maintenance and expenses of the litigation in respect of the period during which the proceedings were pending cannot be avoided. The subsequent dismissal of the petition does not exonerate the liability already incurred.[39]

Hindu Adoptions and Maintenance Act 1956

Section 18[40] of this Act deals with the concept of maintenance which is further divided interim maintenance. The right to claim interim maintenance in a suit is a substantive right under Section 18 of the act. Since no form is prescribed to enforce the said right the court in jurisdiction has the power to grant interim maintenance. Then there are many sub categorisations of the of this section which includes:
  1. maintenance pendente lite
  2. maintenance to wife and widows
  3. right of separate residence.

Other personal laws

Maintenance under Muslim Laws

Maintenance of wife under Muslim law has been provided under the Muslim Women (Protection of Rights on Divorce) Act, (now amended). The Act states that a divorced Muslim woman is entitled to maintenance in the following cases:

During the iddat period, reasonable and fair maintenance has to be paid to the wife. Mehr agreed at the time of marriage has to be given back.
When the woman had to maintain herself and her children, maintenance has to be paid for a period of 2 years. If the child is born after the divorce, then the 2-year period begins from the child’s date of birth.

The amount of Mehr or dower agreed at the time of marriage or after the marriage has to be paid to the wife.

All property was given to her by her relatives, friends or husband before, at the time or after

Definition of maintenance under Muslim law is similar as to the generally accepted definition of maintenance. If the divorced Muslim woman is unable to maintain herself after the period of iddat, the Magistrate can order her relatives who will inherit her property, to pay maintenance to her as deemed fit. When the children or relatives of the woman cannot pay maintenance to her, the Magistrate can order the State Wakf Board established under the Wakf Act, 1995 to pay her maintenance.

Maintenance Under Parsi Marriage and Divorce Act, 1936

Section 40 of this act gives the right to maintenance to a Parsi woman. The court can award a maximum of one-fifth of husband’s net income as maintenance (now omitted). The court considers factors like the husband’s capability to pay, property and other assets owned by the wife and the personal conduct of the husband and wife. The husband is liable to pay maintenance to the wife for her lifetime only if she remains unmarried and chaste after the divorce.

Maintenance Under Christian Law

The Indian Divorce Act, 1869 governs maintenance rights of a Christian wife. Under Section 37[41] of the Indian Divorce Act, 1869, she can apply for maintenance in a civil court or High Court. The husband will be liable to pay maintenance for her lifetime.

Analysis
On one hand there are many victims of domestic violence throughout the country who are getting aided by the act and the provisions like Section 20 but on the other hand there is a wide angle to look at the way the provisions of this act are misused just like in the case of In the case of Anil v. Mrs. Sunita[42], the wife left her husband’s home and resided at her matrimonial home. In the case, the husband also claimed that he went to bring her wife back, but she refused.

The wife in the case had claimed maintenance from her husband of Rs. 5000. The husband in the case claimed that the wife without any sufficient reason was refusing to stay with him and also that she was an advocate and capable of earning and still was demanding maintenance.

In view of the aforesaid facts, the Madhya Pradesh High Court denied maintenance to the wife and observed that in view of the facts of the case, wife lived in her matrimonial home for 7 and 12 days for the first and second time respectively, and it is alleged that she was harassed in these 12 days. After 12 days she had voluntarily gone with her brother to select a girl for the marriage of her brother. Thus, it cannot be held that she was forced out of her matrimonial home.

In Prakash Babulal Dangi v. The State of Maharashtra[43], the wife, had originally claimed maintenance under Section 125 CrPC and same was awarded by the Court. While the case under Section 125 of CrPC was pending, a case was filed, and interim maintenance was sought by the wife under Domestic Violence Act, whereby the husband was directed to pay maintenance of Rs. 8000 and Rs. 5000 to wife and daughter respectively.

The Bombay High Court made reference to Section 36 of Domestic Violence Act, 2015 which states that maintenance shall be in addition to, and not in derogation of the provisions of any other law and held that “the amount of maintenance awarded under the Domestic Violence Act cannot be substituted to the order of maintenance under Section 125 of CrPC.”[44]

Conclusion
As per the research made so far in the paper the researcher have come to the conclusion that the provisions which are there in the various statutes have been beneficial for the women and all these provisions contained in the Hindu Marriage Act, 1955, The Hindu Adoption and Maintenance Act, 1956, Protection of Women Against the Domestic Violence Act, 2005. The research have been limited to the scope of maintenance as per the Domestic Violence Act, 2005 in Section 20(1) and researcher found that there are many loopholes or drawbacks which provides for the misuse of the Act which are mostly against the men.

Bibliography-
Articles:
  1. National Coliation Against Domestic Violence, Available from: www.ncadv.org.
  2. Crucial Laws Against Domestic Violence in India: Know Them, Protect Yourself. Available from: www.naaree.com/domestic-violence-laws-india/.
  3. Caitlin Valiulis, DOMESTIC VIOLENCE (2014) 123. HeinOnline [online].
  4. The United Nations Declaration on the Elimination of Violence against Woman, General Assembly Resolution, December 1993.

Newspaper Article:
  1. Renuka Chowdhury, INDIA TACKLES DOMESTIC VIOLENCE (27 October 2006). BBC News. Retrieved 25 April 2012.
  2. Sumit Ganguly INDIA'S SHAME (14 April 2012). The Diplomat. Retrieved 27 April 2012.
  3. Arjit Narendra Srivastava, DOMESTIC VIOLENCE LAWS IN INDIA (2016).


Books:
  • Ashok K. Jain, FAMILY LAW-I, 7th ed. 2017, Ascent Publication, New Delhi.
  • G.C.V Subba Rao, FAMILY LAW IN INDIA, 10th ed. 2017, Narendra Gogia and Company, Hyderabad.
  • Satyajit A. Desai (rev.). Dinshaw Fardunji Mulla, HINDU LAW, 23rd ed. 2018, Lexis Nexis, New Delhi.

End-Notes:
[1] April Paredes, Donalene Roberts, Taylor Stuart, DOMESTIC VIOLENCE, (2018). 19 Geo. J. Gender & L. 266.
[2] Lauren Ruvo, DOMESTIC VIOLENCE (2009). 10 Geo. J. Gender & L. 371.
[3] Caitlin Valiulis, DOMESTIC VIOLENCE (2014). 15 Geo. J. Gender & L. 124.
[4] NATIONAL COLIATION AGAINST DOMESTIC VIOLENCE. Available from: www.ncadv.org [Accessed on August 6 2019].
[5]Section 3(b) of The Hindu Adoptions and Maintenance Act, 1956 states that, “maintenance includes-
(i) in all cases, provision for food, clothing, residence, education and medical attendance and treatment;
(ii) in the case of an unmarried daughter also the reasonable expenses of an incident to her marriage.”
[6] Section 2(k) of the Domestic Violence Act, 2005 states, “Monetary Relief” means the compensation which the Magistrate may order the respondent to pay to the aggrieved person, at any stage during the hearing of an application seeking any relief under this Act, to meet the expenses incurred and the losses suffered by the aggrieved person as a result of the domestic violence.
[7] Section 20(1)(d) of the Domestic Violence Act, 2005 states that the maintenance for the aggrieved person as well as her children, if any, including an order under or in addition to an order of maintenance under section 125 of the Code of Criminal Procedure, 1973 (2 of 1974) or any other law for the time being in force.
[8] 20. Monetary reliefs.-(1) While disposing of an application under sub-section (1) of section 12, the Magistrate may direct the respondent to pay monetary relief to meet the expenses incurred and losses suffered by the aggrieved person and any child of the aggrieved person as a result of the domestic violence and such relief may include, but not limited to,- (a) the loss of earnings; (b) the medical expenses;
(c) the loss caused due to the destruction, damage or removal of any property from the control of the aggrieved person; and
(d) the maintenance for the aggrieved person as well as her children, if any, including an order under or in addition to an order of maintenance under section 125 of the Code of Criminal Procedure, 1973 (2 of 1974) or any other law for the time being in force.
[9]Section 24 of the Hindu Marriage Act, 1955- “Maintenance pendente lite and expenses of proceedings”-Where in any proceeding under this Act it appears to the Court that either the wife or the husband, as the case may be, has no independent income sufficient for her or his support and the necessary expenses of the proceeding, it may, on the application of the wife or the husband, order the respondent to pay the petitioner the expenses of the proceeding such sum as, having regard to the petitioner's own income and the income of the respondent, it may seem to the Court to be reasonable.
[10]https://www.dnaindia.com/mumbai/report-if-domestic-violence-not-established-then-no-maintenance-to-children-1991737
[11] Savitaben Somabhai Bhatiya v State of Gujarat and Others, (2005) 3 SCC 636.
[12] (1991) 2 SCC 375.
[13] Ibid.
[14] The United Nations Declaration on the Elimination of Violence against Woman, General Assembly Resolution, December 1993.
[15] Heise L.L, Pitanguy J. and Germaine A., VIOLENCE AGAINST WOMAN: THE HIDDEN HEALTH BURDEN (1994) 46.
[16] Crl.M.C. No.3959/2009 & Crl.M.A.13476/2009.
[17] The United Nations Declaration on the Elimination of Violence against Woman. General Assembly Resolution 48/104 of 20 December 1993
[18] Caitlin Valiulis, DOMESTIC VIOLENCE (2014) 123. HeinOnline [online].
[19] Mehr khan, DOMESTIC VIOLENCE AGAINST WOMEN AND GIRLS (2000) 4.
[20] Sumit Ganguly INDIA'S SHAME (14 April 2012). The Diplomat. Retrieved 27 April 2012.
[21] Renuka Chowdhury, INDIA TACKLES DOMESTIC VIOLENCE (27 October 2006). BBC News. Retrieved 25 April 2012.
[22] Section 498A of Indian Penal Code, 1872 states- Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine.
Explanation. -For the purpose of this section, “cruelty” means-
(a) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or (b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.
[23] Renuka Chowdhury, INDIA TACKLES DOMESTIC VIOLENCE (27 October 2006). BBC News. Retrieved 25 April 2012.
[24] Ibid.
[25] Section 3 of Protection of Women from Domestic Violence Act, 2005 states- any act, omission or commission or conduct of the respondent shall constitute domestic violence in case it-
a. harms or injures or endangers the health, safety, life, limb or well‑being, whether mental or physical, of the aggrieved person or tends to do so and includes causing physical abuse, sexual abuse, verbal and emotional abuse and economic abuse; or
b. harasses, harms, injures or endangers the aggrieved person with a view to coerce her or any other person related to her to meet any unlawful demand for any dowry or other property or valuable security; or
c. has the effect of threatening the aggrieved person or any person related to her by any conduct mentioned in clause (a) or clause (b); or
d. otherwise injures or causes harm, whether physical or mental, to the aggrieved person.
[26] Section 3, Protection of Women from Domestic Violence Act, 2005.
[27] (2010) 172 DLT 619
[28] Arjit Narendra Srivastava, DOMESTIC VIOLENCE LAWS IN INDIA (2016). Available from: www.lawfarm.in/blogs/domestic-violence-laws-in-india [Accessed on August 6 2019].
[29] Crucial Laws Against Domestic Violence in India: Know Them, Protect Yourself. Available from: www.naaree.com/domestic-violence-laws-india/ [Accessed on August 6 2019].
[30] Section 326A of Indian Penal Code, 1872
[31] Section 354D of Indian Penal Code, 1872.
[32] Section 509 of Indian Penal Code, 1872.
[33] Section 498A of IPC, 1872 states- Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine.
Explanation-For the purpose of this section, “cruelty” means-
(a) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or
(b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.
[34] (2011) 3 SCC 650.
[35] CRIMINAL APPEAL NO. 1265 OF 2017.
[36] 1(2008) DMC 365 (Kerala High Court).
[37] AIR (1978) SC 1807.
[38] 2014 Cr.L.J. 3979.
[39] Amarjit Kaur v. Harbhajan Singh (2003 (1) AWC 344 SC).
[40] 18. Maintenance of wife- (1) Subject to the provisions of this section, a Hindu wife, whether married before or after the commencement of this Act, shall be entitled to be maintained by her husband during her lifetime.
(2) A Hindu wife shall be entitled to live separately from her husband without forfeiting her claim to maintenance
(a) if he is guilty of desertion, that is to say, of abandoning her without reasonable cause and without her consent or against her wish, or of wilfully neglecting her; (b) if he has treated her with such cruelty as to cause a reasonable apprehension in her mind that it will be harmful or injurious to live with her husband; (c) if he is suffering from a virulent form of leprosy; (d) if he has any other wife living;
(e) if he keeps a concubine in the same house in which his wife is living or habitually resides with a concubine elsewhere; (f) if he has ceased to be a Hindu by conversion to another religion; (g) if there is any other cause justifying her living separately.
(3) A Hindu wife shall not be entitled to separate residence and maintenance from her husband if she is unchaste or ceases to be a Hindu by conversion to another religion.
[41] Section 37 of the Indian Divorce Act, 1869 states that, “ Power to order permanent alimony.- The High Court may, if it think fit, on any decree absolute declaring a marriage to be dissolved, or on any decree of judicial separation obtained by the wife, and the District Judge may, if he thinks fit, on the confirmation of any decree of his declaring a marriage to be dissolved, or on any decree of judicial separation obtained by the wife, order that the husband shall, to the satisfaction of the Court, secure to the wife such gross sum of money, or such annual sum of money for any term not exceeding her own life, as, having regard to her fortune (if any), to the ability of the husband, and to the conduct of the parties, it thinks reasonable; and for that purpose may cause a proper instrument to be executed by all necessary parties. Power to order monthly or weekly payments. Power to order monthly or weekly payments.-- In every such case the Court may make an order on the husband for payment to the wife of such monthly or weekly sums for her maintenance and support as the Court may think reasonable: Provided that if the husband afterwards from any cause becomes unable to make such payments, it shall be lawful for the Court to discharge or modify the order, or temporarily to suspend the same is to the whole or any part of the money so ordered to be paid, and again to revive the same order wholly or in part, as to the Court seems fit.”
[42] Criminal Revision No.829 of 2014, Available at: https://www.vakilno1.com/legal-news/landmark-judgments-2017maintenance.html#Wife_living_separately_from_Husband_without_any_reason_cannot_claim_maintenance_under_Section_125_CrPC.
[43] 2016 SCC Online Bom 15712.
[44] Id

Mutual Consent Divorce

  • To File Mutual Consent Divorce in Delhi and NCR
    Contact Adv.Tapan Choudhury at Ph no: 9650499965 (Available in Whatsapp)

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    Contact NirDita Law Firm at Ph no: 8851978611 (Available in Whatsapp)

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