This article on Critical Examination of the Domestic Violence Act, 2005 has been written by Aditi Singh student of Army Institute of Law, Mohali
Introduction
Inferior treatment of women, unfortunately, has been deeply embedded in the patriarchal social set-up and structure of our society since a long time which has promoted such entrenched beliefs that it has justified discriminatory practices in our culture. In this process several times, women are subjected to abuse, not only by the societal members alone, but also by their own kith and kin within the privacy of their own house.
In general terms “domestic” means “familial” or something regarding home and violence implies harm, therefore the term domestic violence ordinarily means violence taking place at home. Additionally, The Black’s Law Dictionary defines domestic violence as, “violence between members of a household, usually spouses, an assault or other violent act committed by one member of household against another.”[1]
Domestic Violence affects women from every social background irrespective of their age, religion, caste or class. It is a violent crime that not only affects a person and her children but also has wider implications for society[2]. Although the root cause behind this crime is extremely entangled in the various social cultural beliefs, certain long standing traditions and the position of women in society in general making it all difficult to decipher, it can still all be traced back to the stereotyping of genders and distribution of power in our society specifically in India.
Situation in India
Currently in India, “a total of 4, 05,861 cases of crime against women were registered during 2019, showing an increase of 7.3% over 2018. Majority of cases under crime against women under IPC were registered under ‘cruelty by husband or his relatives’ (30.9%)” according to the NCRB report published in September, 2020[3]. A statement of the WHO Director – General World Health Organization, 1997 is quite pertinent herein that, “in different parts of the world, between 16% and 52% of women suffer physical violence from their male partners…violence negates women’s autonomy and undermines their potential as individuals and members of the society”[4]. Violence against women clubbed with these inequalities and deprivations is total denial of human rights which undoubtedly makes it a human rights issue i.e. a serious deterrent to development around the globe.
The United Nations Committee on Convention on Elimination of All Forms of Discrimination Against Women (CEDAW) in its General Recommendation No. XII (1989) has recommended that state parties should act to protect women against violence of any kind especially that occurring within the family[5].
As a corollary, Section 498-A was inserted in the Indian Penal Code, 1860 (hereinafter ‘the IPC’) to deal with cruelty by husbands or relatives of husbands[6] which could only protect a fraction of women affected as the provision was available only to married women against their husbands or relatives of husband (in-laws), however, there was no dearth of exploitation in other relationships wherein the assailants weren’t restricted to the aforementioned. Additionally for protection under this law women had to move out of their homes and seek redressal which was inconvenient and difficult for a majority of victims[7].
Therefore, The Protection of Women from Domestic Violence Act, 2005[8] was passed by the Parliament in response to a worldwide demand for such a legislation which would act as an impediment to domestic violence and to combat all the loopholes and lacunas present in the IPC provision.
The Protection of Women from Domestic Violence Act, 2005
The Domestic Violence Act was enacted as an effective means to protect the rights guaranteed under Article 14, 15 and 21 of the Constitution of India who are victims of violence of any kind occurring within the family and for matters connected therewith or incidental thereto[9] and its legislative intent was emphasized by the Apex Court as a means to “provide a remedy under the Civil Law for the protection of women, from being victims of such relationship, and to prevent the occurrence of domestic violence in the society”[10].
Herein, the victims may be wives, sisters and mothers or any other such female relative living in the ‘shared-household’ in a ‘domestic relationship’[11] as further defined under the said act who are the victims of violence, classified and defined as the “aggrieved person” under S. 2(a) of the Act. Further, the act provides several reliefs like shelter, medical facilities, protection order, compensation order, etc. However, the act itself doesn’t punish the perpetrator of domestic violence against the women aggrieved but if the case discloses any offences punishable under the Indian Penal Code or other criminal laws, or under the Dowry Protection Act, the magistrate can frame appropriate charges against the respondent (defined under S. 2(q) of the Act) and try the case by himself or commit it to the Sessions Court as the case may be.
Section 3 of the Act defines “domestic violence” to include “any act omission or conduct” of the man in question who is in relation to the aggrieved woman. Clause (a) [of S. 3] as mentioned above elaborates on violence. The definition of violence under this Act is not only limited to physical violence but includes acts which “harm or endangers the health, safety, life, limb or well-being (mental or physical) of the victim or tends to do so, and further includes: physical abuse, sexual abuse, verbal abuse, emotional abuse and economic abuse”[12] (defined under ‘Explanation – I’ of Section 3 of the act—it renders various forms of abuse to be included in the concept of “domestic violence”) perpetrated by the person in a domestic relationship with the victim. Additionally, under “economic abuse” if the deprivation amounts to conversion to own use of a property of the woman held in trust by the man, it constitutes criminal breach of trust. Clause (b) which mentions the harassment or harm inflicted on 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” is clearly meant to extend the offence under S. 498 A of the IPC for the benefit of women related to the male offender otherwise than on account of matrimonial connection. Furthermore, Clause (d) opens the field wide open for all kinds of “injuries or harms” caused to the aggrieved women whether physical or mental as it doesn’t qualify the term as such by using the term otherwise to take the misdemeanour beyond what is perceived in the preceding three clauses.
The Act is a Central enactment and its enactment is entrusted to the State Government. It is the State Government which appoints the Protection Officers[13], recognizes the service providers[14] and authorizes the Medical Facility[15] and shelter home to receive the aggrieved women. The Magistrate and the Protection Officers are the active agents who enforce the provisions of the Act. Under S. 8 of the Act, the ‘Protection Officer’ is appointed by the State Government as per the provisions of the law. The Protection Officer aids the aggrieved woman in filing of complaints, and application before the Magistrate to obtain the necessary relief and also assists to obtain medical aid, legal aid, counselling, safe shelter and other required assistance; S. 9(1) further indicates the charter of his duties. Moreover, the Central Government, in exercise of its powers in this behalf as also indicated in S. 37(2)(f), has included in Rule 10[16], the additional duties of the Protection Officers.
Chapter IV (S. 12 – S. 29) of the Act deals with the procedure for obtaining various substantive reliefs that mainly include Protection Orders, Residence Orders, Monetary Reliefs, Custody Orders and Compensation Orders.
S. 14 aims to seek amicable settlement of disputes and therefore, permits the Magistrate to direct the parties to undergo counselling in the hands of experts in the field. S. 14(1) only leaves out the clarifications and experience of the counsellor to be prescribed by the rules as under S. 37(2)(k).
Section 18 provides that a magistrate is expected to issue protection order upon “prima facie satisfaction that domestic violence has taken place or is likely to take place” which implies that a victim may approach the magistrate not only on being subjected to domestic violence but at a stage when there’s an expectation of domestic violence. It is essentially an order of injunction and a prohibitory relief from the respondent from doing certain acts. Furthermore, S. 23 empowers the Magistrate to pass an interim order in the course of any proceedings before him that would include under S. 18 upon prime facie satisfaction on the basis of affidavit that the application discloses “there is a likelihood” of domestic violence being committed, “he may grant an ex-parte order”[17] under S. 18. In this view, the directions under S. 25[18] would operate with equal force even in regards to an interim order. In the face of S. 18, this shall be the position even if relief under it is claimed by virtue of S. 26, before a civil court.
The law guarantees complete protection of women in their house itself without any interference to her right to reside. Whenever the necessity to fix a maintenance allowance in the woman’s favour arises, she is entitled to it in such quantum so as to ensure that she continues to enjoy the same status and quality of life as she would have enjoyed if she continued to live in her matrimonial home with her husband. These standards are prescribed through S. 20(2)[19]. Moreover, the relevant provisions which elaborate further on this context are contained in S. 17 [right to reside in a shared household] and S. 19(1) [residence orders]. The former is absolute and subject to denial only in the event of eviction or being excluded “in accordance with the procedure established by law” provided under S. 17(2) and the procedure of securing the said right is given under S. 19. Furthermore, the provisions relating to custody orders which are defined under S. 21; and Compensation Orders elaborated under S. 22 are totally silent as to the procedure of enforcement and mere reference in S. 28 to the provisions of Cr.P.C cannot be construed as vesting in the Magistrate the requisite powers to enforce his orders in such regard[20].
S. 31 of the Act penalizes the conduct on the part of the male offender in capacity of the female victim in the domestic environment amounting to breach of a “protection order” (which includes an interim or even an ex party protection order) obtained by the latter from a magistrate under S. 18 (or S. 23). Herein, the offence under S. 31(i) is declared by S 32 to be “cognizable and non-bailable”.
Grey Areas
The Domestic Violence is an extremely ambiguous act and although it has been meritorious for a huge amount of people, it still has several anomalies present in it. It is founded on the premise that domestic violence at the hands of men-folk is a general rule in every household[21]. There have been numerous situations of men being victims of the same abuse, being dismissed by law enforcement agencies and public in general. Furthermore, the expression “sexual abuse” employed as one of the facets of domestic violence in this law, is an area that is likely to be the most prone to abuse in the course of its enforcement. There is an urgent requirement for wider elaboration under this part of the Act.
The possibility of abuse of S. 20(1)(d) is extremely large when seen against the prospect of a female friend having lived with the respondent under the same roof even for a short period of time or so claiming maintenance allowance under the said provision, with no restrictions attached and so possibly for the rest of her life. Conclusively, the Domestic Violence Act can be interpreted as substantially biased wherein even trivial matters can be misused with a malicious intent since the definition of the term itself under the Act is extremely expansive and abstruse. According to the Committee on 243rdLaw Commission Report, the fact that offence under S. 498A is cognizable and non-bailable further acts as a big deterrent in the society[22]. Therefore, it would be very beneficial if the Act could make the definitions and provisions more precise and wider its ambit in regards to men being victims under this act.
Conclusion
Section 498-A of the IPC recognizes cruelty within marriage as an offence and thereby, penalizes dowry related harassment as well[23]. Furthermore, another significant amendment has been the recognition of “dowry death” as a distinct offence under Section 304-B and “cruelty” as a ground for divorce. However, these amendments confine dowry related issues while the statistics prove that domestic violence isn’t only for dowry. Domestic Violence is still a major issue faced by a majority of women in India, as well as all over the world. Undoubtedly, the Act has helped several women but it still has a long way to go, proper implementation and removal of certain lacunas around it, might be beneficial in the long run especially when there are still various cases which go unreported due to several factors including familial pressure, unawareness and poverty among other things.
[1] The Black’s Law Dictionary, 1564 (8th ed.) 2004.
[2] Shubhodip Chakraborty, Law on Domestic Violence, SCC OnLine Blog LME 2, 2 (2020).
[3] Dipankar Ghose, NCRB Data: 7% rise in crimes against women, The Indian Express (Sept. 30, 2020, 1:48 AM), https://indianexpress.com/article/india/ncrb-data-7-rise-in-crimes-against-women-6636529/.
[4] Mohd. Ashraf, Domestic Violence and the Law: A social and legal approach, 18 ALJ 97, 98 (2007-08).
[5] T. Mathivanan, A Perception on the Protection of Women from Domestic Violence Act – 2005, 4 LW (JS) 62, 63 (2008).
[6] Indian Penal Code, No. 45 of 1860 § 498A.
[7] Jyoti Dogra Sood, Understanding Domestic Violence Law, 3 CNLU LJ 91, 91 (2013).
[8] The Protection of Women from Domestic Violence Act, No. 43 of 2005.
[9] Id., Preamble to the Act.
[10] Indra Sarma v. V.K.V. Sarma, (2013) 15 SCC 755.
[11] The Protection of Women from Domestic Violence Act, No. 43 of 2005 § 2(f).
[12] Id., § 3(a).
[13] Id., § 2(n) and 8.
[14] Id., § 2(r) and 10.
[15] Id., § 2(j).
[16] Protection of Women from the Domestic Violence Rules, 2006, hereinafter referred to as the ‘rules’.
[17] Id., § 23(2).
[18] Id., § 25(1); “A protection order made under section 18 shall be in force till the aggrieved person applies for discharge”.
[19] Zubair Ahmad Khan, Domestic Violence Law: An Examination of Existing Debacles, 19 ALJ 25, 39 – 40 (2008-09).
[20] Ibid.
[21] R.K. Gauba, Domestic Violence Law – A Recipe for Disaster?, 8 SCC J-25, J-26 (2007).
[22] Vardaan Bajaj, The Grey Areas of Domestic Violence Laws in India, SCC OnLine Blog OpEd 14, (2016).
[23] Indian Penal Code, No. 45 of 1860 § 498-A(b).
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