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Interpretation Perspective With Regards To Protection Of Women From Domestic Violence Act, 2005 And Gender Bias

Whenever we talk about domestic violence, the only thought that comes to our mind is that it only happens with a woman. The long title of the Act itself says that the Act is for an effective protection of women from domestic violence. Nowhere has the said Act talked about men being a victim of domestic violence too.

Even in the 21st Century, the belief that women are the victim of domestic violence and men, the perpetrators, still prevails, therefore, the Domestic Violence Act is titled as Protection of Women from Domestic Violence Act, 2005 and focuses only on the female victims of domestic violence. This paper addresses the intention of the Parliament behind passing this and how it is being misused, by applying the different rules and maxims of interpretation of statutes.

Introduction
Domestic violence is violence or abuse that takes place in a domestic household against one partner by the other, either in marriage or in live-in relationships. Violence here includes actual abuse or threat that is physical, sexual, verbal, emotional or economic. The Protection of Women from Domestic Violence Act, 2005 is an Act which was made with an intention to protect women from the violence (mental and physical) they face at home by their husbands and in-laws for dowry or for any other reason.

Section 3 of the Protection of Women from Domestic Violence Act, 2005 defines Domestic violence as For the purposes of this Act, any act, omission or commission or conduct of the respondent shall constitute domestic violence in case it:
  1. 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
  2. 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
  3. has the effect of threatening the aggrieved person or any person related to her by any conduct mentioned in clause (a) or clause (b);
  4. otherwise injures or causes harm, whether physical or mental, to the aggrieved person.

The law was made to be the shield of women, and not a weapon. However, there have been many instances where women have used the Protection of women From Domestic Violence Act, 2005 with mala-fide intention. The Delhi High Court in Rajat Johar vs Divya Johar held that:
The object of the Protection of Women from Domestic Violence Act, 2005 is to provide for more effective protection of women's rights guaranteed under the Constitution, who are victims of violence of any kind occurring within the family, and for the matters connected therewith or incidental thereto.

This is the law which is victim driven and it does not required the state to initiate e.g. 498 A, where the state is a party to and victim has to depend on the police and prosecution for enforcement. It can be put in to motion by the aggrieved by direct access to court claiming relief Another aspect for conceptualizing it as a civil law because it restores the agency that rightly belongs to her, redefines the injury so as to perceive her to be injured.

History And Intention Of The Legislature

Indian Culture holds a plethora of concepts where women in society are shown as a divine force of nature. Women throughout have been worshipped as goddesses like Durga, Kali, Sarawati and Lakshmi. Through changing centuries so did the change in the view towards women evolved in rather negative way.

The condition of women has deteriorated since Ancient Period because of social, political, and economic changes in the society. Women were seen as below men and their lives were limited to the 4 walls of their household, forced to take care of their families and reproduce. In the 21st Century, the condition of women has started getting better as compared to earlier times, however, there is still a need to empower women in order to protect them from the atrocities they face at their houses.

Even though Article 15 of the Constitution says that there should be no discrimination on the basis of gender, the society is not ready to accept women as equal to that of men, causing Indian women to suffer. Even today, in many households, women are supposed to stay at home and take care of their family members and reproduce, irrespective of their health conditions and they are often overworked. Violence against women is another problem prevalent in not just India but all over the world. The main cause of this violence in India is Dowry. The concept of dowry, which came into existence somewhere during the medieval period, has become the major factor in causing domestic violence against women, in many cases, even leading to dowry death.

A DSLSA Lawyer, Adv. Amarendra Chaubey said:
PWDVA provides one platform for all kinds of reliefs. More effective, short-term relief is available under the PWDVA. The relief under section 498A may be added to the petition under PWDVA.

Section 498 A of the Indian Penal Code, 1860 was the first law which addressed this issue of women. The Section talks about cruelty towards a woman, Husband or relative of husband of a woman subjecting her to cruelty.—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. In this, cruelty means conduct which would lead to the woman committing suicide or causes any grave injury to her life, body and her health and harassment (coercion) to gain something, for example, dowry.

After the Indian Penal Code of 1860, Hindu Marriage act of 1955 addressed the issue of cruelty in Section 13, which talks about contested divorce in which, Section 13(1) (i) (ia) says that cruelty is a ground for divorce (has, after the solemnization of the marriage, treated the petitioner with cruelty). However, the Hindu Marriage Act, 1955, does not define cruelty.

In order to prevent the taking and giving of Dowry, the Dowry Prohibition Act, 1961 was enacted by the Parliament and Section 125 of the Criminal Procedure Code, 1973, focused on the maintenance of wife, children and old parents.

There are many laws for the empowerment of women, but no special law was there to protect the women from domestic violence. Therefore, the Protection of Women from Domestic violence Act of 2005 was enacted, which came into force on 26th October, 2006.

For the first time, the new law stepped inside the home and dealt with private spaces of individuals—something the law had avoided doing until then—albeit selectively. It acknowledged that domestic violence is widely prevalent but has remained largely invisible in the public domain. Protection of Women from domestic Violence Act, 2005 is a civil law with main intention of providing protection to women from violence and abuse (physical, emotional/mental, sexual and financial abuse) in their house, whether in a marriage or in a live-in relationship. This law also extends to women who live in a household, like sisters, widows, mothers, etc. It covers those women who have been, or are living with an abusive man, be it any man, either husband, or in-laws or sons.

The Supreme Court, in Velusamy vs. D. Patchaiammal, gave five ingredients of a live-in relationship. They are as following:
  1. Both the parties must behave as husband and wife and are recognized as husband and wife in front of society.
  2. They must be of a valid legal age of marriage.
  3. They should qualify to enter into marriage eg. None of the partner should have a souse living at the time of entering into relationship.
  4. They must have voluntarily cohabited for a significant period of time.
  5. They must have lived together in a shared household.
The Supreme Court also observed that not all live-­in­-relationships will amount to a relationship in the nature of marriage to get the benefit of Domestic Violence Act. To get such benefit the conditions mentioned above shall be fulfilled and this has to be proved by evidence.

Gender Bias

The Protection of Women from Domestic Violence Act, 2005 was enacted with an intention to protect just women considering the fact that mostly women are the victim of such violence and abuse at their households keeping in mind the condition of women. Even the long title of the Act states that this is an Act to provide for more effective protection of the rights of women guaranteed under the Constitution who are victims of violence of any kind occurring within the family and formatters connected therewith or incidental thereto. However, this Act fails to acknowledge that even men can be victim of domestic violence and that there is no law to protect men from domestic violence in India.

Expresso unius est exclusion alterius is a Maxim of statutory interpretation which means one or more things of a class are expressly mentioned, others of the same class are excluded. In this Maxim, Literal Rule of Interpretation of Statutes can be applied as the words have to be read and understood in their true and literal sense. Since the title of Protection of Women from Domestic violence Act, 2005 talks about the protection of just one gender, which is, women, and excludes all other genders, the Act has previously been challenged on the basis of being gender biased.

A news article on Live Mint states that:
The Delhi high court, in April 2008, upheld the constitutionality of PWDVA in a case questioning its validity in light of being a gendered law (an aggrieved person under the law can only be a woman). The court also failed to find any problem with the broad definition of domestic relationship.

Section 2(q) of the Protection of Women from Domestic Violence Act, 2005 was challenged in Sou. Sandhya Manoj Wankhade vs Manoj Bhimrao Wankhade & Ors. The said section defines Respondent as:
Any 'adult male' person who is, or has been, in a domestic relationship with the aggrieved person and against whom the aggrieved person has sought any relief under this Act: Provided that an aggrieved wife or female living in a relationship in the nature of a marriage may also file a complaint against a relative of the husband or the male partner and it was questioned time and again that the said Section does not include any female member of the man as respondent, which implies that a woman cannot use violence against anyone. However, the Supreme Court in this case held that the said Section, Section 2(q) of this Act does not exclude female relatives of the husband or male partner from being the accused in cases of Protection of Women from Domestic Violence Act, 2005. Therefore, after this case, complaints against female members of the family of the husband or male-partner are maintainable.

The Constitutional validity of Section 2(q) was challenged in the case of Hiral P. Harsora v. Kusum Narottamdas Harsora. In this case, the Bombay high Court held that:
In view of the fact that the decision of the Delhi High Court in Kusum Lata Sharma's case has not been disturbed by the Supreme Court, we are inclined to read down the provisions of section 2(q) of the DV Act and to hold that the provisions of respondent in section 2(q) of the DV Act is not to be read in isolation but has to be read as a part of the scheme of the DV Act, and particularly along with the definitions of aggrieved person, domestic relationship and shared household in clauses (a), (f) and (s) of section 2 of the DV Act.

If so read, the complaint alleging acts of domestic violence is maintainable not only against an adult male person who is son or brother, who is or has been in a domestic relationship with the aggrieved complainant- mother or sister, but the complaint can also be filed against a relative of the son or brother including wife of the son / wife of the brother and sisters of the male respondent.

In other words, in our view, the complaint against the daughter-in-law, daughters or sisters would be maintainable under the provisions of the DV Act, where they are co- respondent/s in a complaint against an adult male person, who is or has been in a domestic relationship with the complainant and such co- respondent/s. The Bombay High Court also held that It must, of course, be held that a complaint under the DV Act would not be maintainable against daughter-in-law, sister-in- law or sister of the complainant, if no complaint is filed against an adult male person of the family.

Later on in the case of Mohd. Zakir v. Shabana & Ors, The High Court of Karnataka misinterpreted the judgment of Hiral P. Harsora v. Kusum Narottamdas Harsora and on placing reliance on the above mentioned case, held that a petition filed under the Protection of Women from Domestic Violence Act, 2005 by a male (husband or adult male) can be entertained.

The misinterpretation of the Judge was that if the word Adult Male was removed from the provision, it would appear that anyone can be the respondent, irrespective of the gender. However, on pointing out this misunderstanding, the Judge withdrew his judgment and it was held that a male cannot file a petition under the Protection of Women from Domestic Violence Act, 2005, only a woman can do that.

After taking into consideration the above points and cases, it can be said that the Protection of Women from Domestic Violence Act, 2005 rules out the possibility of a man being the victim of domestic violence and abuse by his wife completely. The Act is discriminatory against men as only women are protected in this Act, implying that men are always the perpetrators and women the victim. This mindset leads to the misuse of the provisions of this Act by women against their husband and his family.

The prejudice that women will always use the Act against injustice, even after having many examples of women misusing Section 498 A of the Indian Penal Code, 1860 against men to torture them and her in-laws, does not qualify as fair, just and reasonable.

Misuse Of Protection Of Women From Domestic Violence Act, 2005

Whatever are the honest intentions of the legislature, it is seen that the provisions of the act is misused and abused by the so-called victims. In other words, the provisions of the act does not afford the accused to explain his stand for the simple reason that even if the woman is living separately from him, she can still accuse her husband or anyone claiming under him of continuing to threaten her and so on. Since the provisions of the act have a presumptive value, most of the time, the accused is left defenseless.

Since the society's prejudice is that women are always the victim of domestic violence and men are always the perpetrators, it is easier for women to misuse this Act and gain something out of it, like maintenance, custody of children, revenge, etc. The defendant is at the receiving end so the burden of proof lies on him and it is always difficult to prove because it is easier to create fake evidence.

The Madras Court in Rukmani v Manonmani held that:
It is clear that the provisions of the Domestic Violence Act had been misused by the first respondent to put pressure on the petitioners to compel them to sell the property under the alleged sale agreement.

A news article on The World' wrote about a Madras High Court's judgment, The object behind the law is to check and curb the menace of dowry and at the same time, to save the matrimonial homes from destruction, Arrest of the in-laws is often made simply to satisfy the ego and anger of the complainant.

It also went on to say that in last week's Supreme Court ruling, the judges found that low conviction rates indicated that most complaints were frivolous. India's men's rights movement has also been using these crime statistics and judicial rulings to assert that the law is an extortion racket Another new article on Deccan Herold, a story of an aggrieved man is given where he filed a petition against his wife, whom he married in August, 2017 but got separated a few months later and has sought monetary compensation for the verbal abuse he had undergone. His petition was admitted by Vijayawada First Additional Chief Metropolitan Court and a notice was issued to his wife.

The aggrieved man has alleged that his wife kept him in the dark about her first marriage and that she had a 12-year-old daughter from the earlier marriage. He also added that his ex-wife has falsely filed a Dowry harassment case against him even after having a mutual consent divorce.

Apart from misusing the provisions of the Act against men for torturing him and his family, other reasons can be maintenance and custody of child. Even if the provisions of maintenance are not misused, Section 20(d) of the Protection of Women from Domestic Violence Act, 2005 says 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.

In Prakash Babulal Dangi vs State of Maharashtra, wife of the respondent filed 2 separate maintenance cases against her husband, one under Section 125 of the Criminal Procedure Code, 1973 and other under Section 20 of the Protection of Women from Domestic Violence Act, 2005. It was held in this case that both the proceedings being independent, both the orders will stand independently and the husband will have to pay maintenance under Section 125 of the CrPC as well as under Section 20 of the PWDVA independently.

Even though it is the decisions of Houn'ble High Court, the provision saying that the maintenance awarded under DV Act will stand independent of maintenance awarded under any other law is unfair and unjust in cases where women misuse the provisions of DV Act against their husbands and male partners and his family members.

It is important to note that in most instances of such alleged abuse, the courts have been quick to detect this same and make appropriate order in the matter: Saritha v R. Ramachandra, is a prime example of it, whereas part of a divorce proceeding on the grounds of cruelty the wife had filed under Sec. 498A against the whole family, the HC struck the complaint down, highlighting the possibility of vexatious complaints, and the duty of courts to detect the same.

Protection of Women from Domestic Violence Act was enacted for the sole purpose of shielding women from the abuse and violence they have to face inside their homes where they expect to be the safest on earth and not for the women to misuse it. However, this Act has proven to be fatal for men. The data signifies that many false Domestic violence cases have been filed by women, in turn, to coerce men into fulfilling impossible or unethical desires.

A report submitted by the two non-profit organizations, save family Foundation and My Nation Foundation have published a survey which provides that out of 1,00,000 reports filed by the women in the country between the year 2016-17, only 2.8% of the cases were actually proven to be of some validity. The data provided by the National Crime Record Bureau that as compared to women, 21.16% of more men than women were reported to commit suicides due to DV.

Conclusion
The Protection of Women from Domestic Violence Act, 2005 was enacted by the Parliament with bona-fide intention, which was to protect the women from atrocities that are faced by them in their own household. This Act was a need of the time as women were not even safe within their houses, let alone on the roads. However, with time, like Section 438 A of the IPC, the provisions of this Act were also misused by many women to satisfy their ego and fulfill their demands by blackmailing or torturing their husband and his family members.

Courts have been quick enough to sense the reality but there are still no provisions to prevent the women from misusing this Act and no provisions to protect the men from such misuse. Even in 21st Century, the society is not ready to accept the fact that men or male as a gender is not invincible and they are humans only.

The stereotype that Mard ko kabhi dard nahi hota has caused many men who have experienced domestic violence and abuse on the hands of women to keep quiet and never open up to anyone in order to be Man enough because of fear of societal backlash. And even if a man opens up about such incidents, the society takes it as a joke and blames him only. This misuse and misapplication of law has led to many innocent men bearing punishments for the crime they didn't do which is a violation of their rights.

References:
  1. Nishanth Maka, Abuse of Domestic Violence Act, http://www.legalservicesindia.com/article/1754/Abuse-of-Domestic-Violence-Act.html
  2. Section 3, Protection of Women from Domestic Violence Act, 2005.
  3. Rajat Johar vs Divya Johar, Crl. M.C 1728/2015
  4. Critical Review of the Protection of Women from Domestic Violence Act, 2005, https://shodhganga.inflibnet.ac.in/bitstream/10603/149089/20/15_chapter%207.pdf.
  5. Soumi Chatterjee, Concept and evolution of dowry, International Journal of Humanities and Social Science Invention, Volume 7, Issue 1, January, 2018.
  6. Section 498 A, Indian Penal Code, 1860.
  7. Section 13(1) (i) (ia), Hindu Marriage Act, 1955.
  8. Shreeja Sen, Ten years on, where does the Domestic Violence Act stand?, https://www.livemint.com/Politics/oin3GVsX0EJkR8uccpniIJ/Ten-years-on-where-does-the-Domestic-Violence-Act-stand.html, 28 October, 2016.
  9. Velusamy v. D. Patchaiammal, (2010) 10 S.C.C. 469.
  10. Vakilno1.com, Important judgments on Domestic Violence Act, 2005, https://www.vakilno1.com/legalviews/important-judgments-on-domestic-violence-act-2005.html, Feb 11, 2019.
  11. Sou. Sandhya Manoj Wankhade vs Manoj Bhimrao Wankhade & Ors, (Cr. W.P. No.588 of 2009)
  12. Section 2(q), Protection of Women from Domestic Violence Act, 2005.
  13. Hiral P. Harsora v. Kusum Narottamdas Harsora, (2016) 10 SCC 165.
  14. Mohd. Zakir v. Shabana & Ors., Crl. P 2351 of 2018.
  15. Rukmani v Manonmani, M.C.No.10 of 2012.
  16. Nimisha Jaiswal, Indian Court rules that men need protection from women making unsubstantiated domestic harassment claims, https://www.pri.org/stories/2017-08-15/indian-court-rules-men-need-protection-women-making-unsubstantiated-domestic, August 15, 2017.
  17. Section 20(d), Protection of Women from Domestic Violence Act, 2005.
  18. Prakash Babulal Dangi vs State of Maharashtra, Cr. W.P. No. 3239 OF 2014.
  19. Saritha v R. Ramachandra, 2003 (1) E.C.R. Crim. 481.
  20. Ad. Kishan Dutt Kalaskar, Difficulties faced by men in family courts, https://legatoapp.com/blog-in-detail.php?bp_id=285#:~:text=The%20Madras%20court%20in%20Rukmani,to%20quash%20the%20proceedings%2C%20and, July 22, 2020.


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