Since ages the social status of women has remained pitiful and worrisome. The
stance of the society towards feminine gender was not as broad as today. They
were the victims of dominance in the hands of their husbands and in-laws,
unfortunately the women had no other choice but to accept the enormity as their
fate and sanction the ambush done daily on their dignity without any
Many tolerated the same as fortune and the rest who came forward
to report had to step back due to lack of concrete provisions in law and
improper legislation or had to face the gravest aftermaths of their attempt
which at times may cost them their life! In order to provide effective
protection of rights to women who were victims of violence of any kind occurring
within the family, the Protection of Women and Children from Domestic Violence
Act 2005[i] enacted as a step towards providing women with tangible legal
The said enactment was in concurrence with the situation and social
status of women then, however, the situation at present is not as same as before
in fact has reversed, progress of mankind always shows the other side of the
coin which is both negative as well as positive. The improved status of women in
society and the rising awareness about the rights and privileges available is no
doubt a great social change but is accompanied by the excessive bloody wisdom;
due to the laws being completely inclined towards women, women find it
irresistible to misuse and take the undue advantage of law.
As a result women
use the given legal protection as a weapon against men and harass them by taking
disadvantage of the prevailing laws. The author in this article has tried to
highlight the devastating effect of the misuse of the provions by the women
which are enacted for the welfare of women.
The Act at the inception proved to be very fruitful; women audaciously came
forward and reported the violence that they suffered. Also, women were made more
aware about their rights and the legal remedy that they could avail at the time
of adversaries; they also became aware about how they could safeguard themselves
as they started acquiring more and more education eventually giving them a
better platform for better world exposure.
But as rightly said all power tends
to corrupt and absolute power corrupts absolutely, the intention of the
legislature entered demeaning stage when recently more of false cases were
reported. In the recent time women started creating havoc by using the act as a
tool or weapon to harass and blackmail men by registering false complaints
against husband and his relatives with the alternate motive of extracting money.
Unfortunately the present law being gender specific there is no law to protect men [ii] from such melancholy, being a patriarchal and male dominated society the
husband is left with very limited defences, the only remedy a man can avail at
such time is either to defend the case and wait till the final judgement comes
or file a concrete case against wife and prove her wrong. Mostly, the former
remedy is the only one that can be adopted as the later one may get the husband
into many complexities.
The primary intention of the legislature behind enacting
gender specific law was to empower women and bring them at par with their male
counter parts however, the law has not absolutely accomplished the objective of
the legislature due to the presence of imperfections in it which in turned has
become temptation for women to victimise themselves.
The most notable flaw in
the act is that it lends itself to such easy misuse that women will find it hard
to resist the temptation to teach a lesson to husband and his relatives and will
file frivolous and false cases [iii] taking apt advantage of absence of any laws
to protect men. The most prominent drawback of the act is that the definition[iv] of
domestic violence is as stated in the act is very much ambiguous in nature.
The definition of domestic violence varies, depending on the
context in which it is used. The meaning and interpretation of violence
may vary from one instance to another. The same may be defined
differently in medical, legal, political or social contexts. Though
traditionally the definition of domestic violence is associated with physical
violence yet the same is defined variedly in different parts of the world. For
instance Merriam-Webster dictionary defines domestic violence as the inflicting of physical injury by one family or
household member on another also a repeated habitual pattern of such behaviour
For instance the act includes insults and jibes under
the definition of verbal and emotional abuse . It might in some cases, be extended
to mere domestic quarrels that were not intended to fall under the definition of
mental and verbal abuse[vi]. Also, it is pertinent to note that unfortunately
according to Domestic Violence Act, 2005 the aggrieved party is always any
women . Man does not come within the ambit of such definition.
Further, the respondent under the definition means any
adult male person , which means a
complaint cannot be directed against women. However, it is not mandatory that
the violence shall always be caused by the man on women.
In the matter of Dr N.G
Dastane v/s Mrs S Dastane [vii] the Hon’ble Supreme Court held that the cruelty
is of two types one is mental the other is physical. It might be true that
physical is generally being perpetuated by the husband being a strong one but at
the same time this can’t be said to be universally true. It is also vice versa
in case of mental cruelty to the husband.
The term cruelty thus have a wider
connotation and the term can be interpreted contingently as a consideration of
those occurring which are yet to occur and which may not even occur. Women to
book the husband falsely may interpret the term in the most dangerous way. Thus
it is very pertinent to note that though the act has defined the term domestic
violence albeit in a vague manner yet the concept of cruelty cannot specify for
Another notable flaw is that the Magistrate is empowered to pass protection
order[viii] which means that the magistrate can take measures to protect the
women from any acts of violence that are even likely to take place in the
future. The act further says that the complaint can be filed by any person other
than the aggrieved person who has reason to believe that the violence has taken
place. The act has certainly given women with too many rights under one roof.
The powers and discretion of the judicial officers too are wider in nature. The
foremost action what court takes after receiving complaints of domestic violence
is initiating the order of stop violence order or Protection
the respondent. The intention of this order is to give a space free from
violence to women facing domestic violence. It is in nature meant to be
emergency law. If the respondent is disturbing the aggrieved in peaceful living
in a shared household, the residence order [ix] which is in it a dangerous
immunity conferred upon the women.
The another treacherous provision yet justified by the law is that the interim
custody of the child also can be given to the aggrieved which puts the
respondent in the fear as the visitation rights can also be denied in the
custody order . [x]
The prominent protection that gives wings to the ill-intentions of women is
monetary protection . Earlier,
the genuine reason why women never raised their voice against their sufferings
because they were economically dependent on their husband however, the condition
is not the same now. Women too are educated and are economically self-reliant
and at times are seen having more income than their male counter parts. The one
who are indeed economically independent too harass their husbands by asking
monetary reliefs by availing the benefit as provided under section 20(1) of the
act. The women can avail the monetary relief, when the court is of the opinion
to grant compensation to the victim for damages for injuries
compensation order is issued.
The victim of domestic violence is also protected with
monetary relief and the remedy to victim under any other civil or criminal court
is not barred. In addition to this and exclusive of other provisions of law the
jurisdiction of the magistrate to grant maintenance allowance is governed by
section 125 of CrPC impliedly mandatory provision for maintenance and monetary
relief was absolutely not required. The women who earn well also are seen taking
undue advantage of the same on some or the other pretext.
The provision only
tends to create multiplicity of proceedings and consequences which could be
grossly unfair to both the parties. However, it is only the Hindu Marriage Act
1955 and Parsi Marriage and Divorce Act 1936 which specifically provides the
relief of maintenance to both husbands as well as to wives at par [xi].
Domestic violence is extremely complex and to report the same as what is
happened is even more complex. The violence takes place within the four walls of
the house and no one else can aptly state it other than the one who suffered it
specifically in the country like India where there are no specific laws for the
protection of men.
There are many laws for the protection of women Dowry
Prohibition Act, Section 498A in Indian Penal Code i.e offense of cruelty by
husband and relatives of husband, Section 125 in Code of Criminal Procedure Code
i.e maintenance for wife protection of women from protection of Domestic
Violence, whereas there is no provision like 125A in Criminal Procedure Code or
498 B in Indian Penal Code.
The specific laws are misused by women and are
accompanied by the failure in the investigation mechanism. Courts too are not
diligent while pronouncing orders and often fail to apply their minds. Nobody
addresses the grievances of husbands and his relatives not even the society. The
practice says real purpose of the women related specific laws are misused and
thereby husband suffer for no fault[xii].
In Vijayalakshmi v. Punjab
University[xiii] it was held that as a result of joint operation of Article (15)
and (3), the state may discriminate in favour of women against men but it may
not discriminate in favour of men against women. Wherein is known that
protection against domestic violence is a civil right it cannot be forgotten
that its misuse cannot be taken lightly [xiv].
The other view on the other hand
argues that social problems if remedied by force may lead to stronger reactions
from the respondents, which in the end may be detrimental to the existence of
society itself [xv].
It is absolutely true that to keep a check on men some
stringent measures are necessary but this needed to be brought about not by
adding more and more laws in the statute books with ill-advised measures but
through proper enforcement of legal frame-work. Due to few false cases all the
genuine cases too loose the gravity of being real and true and at times may be
The false reports puts the society into a perplexing condition
wherein to believe or not to believe becomes the question. There are true cases
where women are trapped in atrocious marriage and brutal household environment;
they suffer in the hands of their husbands and in-laws.
Even the most educated
and dignified people commit the offence of Domestic violence and even the
qualified and well behaved women become the victim of Domestic Violence, many
women are victims of sexual harassments and marital rapes which may lose
spotlight if constantly women would report those crimes which never took place.
Thus, in reality it is not only the law but also the inappropriate
implementation of law which is responsible for the critical imbalance as what is
seen today in the society.
Thus, the Police authorities too should be alert and
diligent enough while registering the complaints while taking initial action and
while doing further investigation they must once check the veracity of the crime
instead of merely following the protocol. The Courts too should bound
themselves with a responsibility of delivering decisions which would be based on
applicability of their prudent minds and not by any stereotypical mind-set. It
is true that the world is changing speedily and so does the social status of
women but how many of the women do actually get literate to empower themselves
is a biggest question having the most subjective answer.
Today we see women
talking about the so called gender equality, we see their aspiration to pursue
all what is being pursued by their male counterparts, we see women talking of
the independence and freedom, but how many of them do practice it in reality? In
a country like India, unlike other religions marriage is sacrament but
considering the present situation importance of the institution of marriage is
diminishing which consequently is disturbing the culture of family, the one who
suffers the most is children in such families.
The present law needs a rational approach and shall go through a revision. The
society changes at particular intervals and that the laws shall commiserate with
the change. Bringing into force more and more laws is not the solution but
implementing the already existing ones is what is required. Everyone right from
the investigating authorities till the courts where justice is sought shall play
their role diligently and try to strike a balance in society only then the
misuse of law will not take place.
- To be referred to as the Act throughout the article.
- Section 2 (a) of the act provides the definition for aggrieved person
which is aggrieved person means any woman who is, or has been, in a
domestic relationship with the respondent and who alleges to have been
subjected to any act of domestic violence by the respondent; the definition
clearly indicates that the act provides specifically to women.
- John Enrich Edward Dalberg Available at http://www.goodreads.com/quotes/814115-absolute-power-corrupts-absolutely
- Section 3 of domestic Violence Act defines Domestic Violence
- Available at http://www.meriam-webster.com/dictionary/violence.
- Gosh & Choudhari, pg 323
- AIR 1975 SC 1534
- Section 18 of PWDVA 2005
- Section 19 of PWDVA 2005which retrains the husband from disposing of
property or disturbing the possession of shared household, irrespective of
her legal inequitable interest in it.
- Section 21 of PWDA 2005, the protection provided in the said section
should be given diligently by the judicial authorities. Due to this there
are chances of future of child getting affected.
- Under Section 24 of Hindu Marriage Act, 1955 either of the spouses,
husband or wife can be granted relief if the court is satisfied that the
applicant has no independent income sufficient for his or her support and
necessary expenses of the proceedings pending under the Act Under Parsi
Marriage and Divorce Act, 1936 either Parsi wife or husband is entitled to
claim expenses where the proceeding is pending under the Act
- P.K Das, law relating to cruelty to husband (2008) P.1
- AIR 2004 SC 3946
- http//:criticalanalysisof domesticviolenceLawinsection
- IOSR Journal of Humanities and Social Science(IOSR-JHSS) Volume10, ISSUE
2 (Mar-Apr 2013), PP41-44 e-ISSN:2279-0837, P-ISSN:2279-0845