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“If the numbers we see in domestic violence were applied to terrorism or gang violence, the entire country would be up in arms, and it would be the lead story on the news every night.”
The cancer of domestic violence has been spreading its poisonous tentacles from times immemorial and so deeply infested are its roots that they not only doom the individual victim but they besmirch the culture and the nation where it takes place. The concept of ‘Ardhangini’ [half of the body] seems to be restricted only in literatures and have never been implemented in practical life. In addition to this, extracts from Ramcharitamanas of Tulsidas like ‘Dhol, Gauwnaar, Shudra, Pashu aur Nari; Sakal Tadan ka Adhikari’ [drums, uncivilized illiterates, lower castes, animals and women are all fit to be beaten] besides other indicators like Pardaha system [hiding the face in veils], Sati system [self immersion of the lady in husband’s pyre] that are subject to women only; is a reflection of the history of women’s subordinate status. Unfortunately our socio cultural practices are so deep rooted that both the perpetrator as well as the victim take their lives for granted. In order to address the problem, social norms and values towards gender roles should be transformed to facilitate the implementation of appropriate and meaningful responses to domestic violence and ultimately to prevent it from happening altogether. The intention behind this piece of legislation viz; to provide protection to women from Domestic violence , is indeed a noble one and such a legislation is required in a country like India where Domestic violence is not only rampant but is accepted by women as a way of life , owing to the disadvantageous position that most women occupy in the Indian society. However just as every piece of legislation has its advantages , many women have unfortunately misused the provisions of this Act to drag. torture and harass their husbands, in-laws and relatives in an unnecessary legal battle to vent their personal vendetta and stake a claim in the properties belonging to the husband and the in-laws. Domestic Violence and abuse can happen to anyone, and India is not the only country burning with this problem. Domestic violence and violence against women and children is universal. Laws on domestic violence vary by country. The social acceptability of domestic violence also differs by country. While in most developed countries domestic violence is considered unacceptable by most people, in many regions of the world the views are different: according to a UNICEF survey, the percentage of women aged 15–49 who think that a husband is justified in hitting or beating his wife under certain circumstances is, for example: 90% in Jordan, 85.6% in Guinea, 85.4% in Zambia, 85% in Sierra Leone, 81.2% in Laos, and 81% in Ethiopia Understanding Domestic Violence Domestic abuse, also known as spousal abuse, occurs when one person in an intimate relationship or marriage tries to dominate and control the other person. Domestic abuse that includes physical violence is called domestic violence. Any act of physical, sexual, or psychological abuse, or the threat of such abuse, when inflicted against a woman by a person intimately connected to her through marriage, family relation or acquaintanceship, is known as domestic violence on woman. The perpetrators of domestic violence have often been found to be the males and the victims, their sexual partners, however the Domestic Violence Act encompasses within itself not just married woman, but also women who are in live in relationships with their male Partners. Why a legislation for domestic violence? Domestic violence is rampant and several women encounter violence in some form or the other almost everyday , however it is the least reported forms of cruel behavior. A woman resigns her fate to the never ending cycle of enduring violence and discrimination as a daughter, a sister, a wife, a mother, a partner or a single woman in her lifetime. This non retaliation by women coupled with absence of laws addressing womens issues, ignorance of the existing laws enacted for women and societal attitude makes women vulnerable. The reason why most cases of domestic violence are never reported is due to the social stigma of the Society and the attitude of women themselves, where women are expected to be subservient, not just to their male counterparts but also to the male’s relatives. Till the year 2005, remedies available to a victim of domestic violence in the civil courts (divorce) and criminal courts (vide Section 498A of the Indian Penal Code) were limited. There was no emergency relief available to the victim; the remedies that were available were linked to matrimonial proceedings; and the court proceedings were always protracted, during which period the victims were invariably at the mercy of the abuser. Also the relationships outside marriage were not recognised. This set of circumstances ensured that a majority of women preferred to suffer in silence. This it became essential to address these anomalies and thus the Protection of Women from Domestic Violence Act was passed. Constitutional Perspectives Domestic Violence was recognized as a specific criminal offence in 1983 by amendments in the Indian Penal Code, but was not very effective in controlling the violence committed against the woman within the family or inside the house hold, therefore, the legislature enacted the Protection of Women From Domestic Violence Act, 2005 to protect women from domestic terrorism. The enactment in question was passed by the Parliament with recourse to Article 253 of the Constitution. This provision confers on the Parliament the power to make laws in pursuance of international treaties, conventions, etc. The Domestic Violence Act was passed in furtherance of the recommendations of the United Nations Committee on the CEDAW. The Act encompasses all the provisions of the Specific Recommendations which form a part of General Recommendation no.19, 1992. The Protection of Women from Domestic Violence Act, 2005 received the assent of the President on 13/09/2005 and was published in the Gazette of India, Ext., II, S.1, dated 14/09/2005. Over view of the Domestic Violence Act The phenomenon of domestic violence is widely prevalent but has largely remained invisible in the public domain. It is therefore, proposed to enact a law keeping in view the rights guaranteed under articles 14,15 and 21 of the Constitution to provide for a remedy under the civil law which is intended to protect the women from being the victims of domestic violence and to prevent the occurrence of the domestic violence in the society. It not only covers those women who are or have been in a relationship with the abuser where both parties have lived together in a shared household and are related by consanguinity, marriage or through a relationship in the nature of marriage or adoption but even the relationships with family members living together as a joint family. Even those women who are sisters, widows, mothers, single women, or living in any other relationship with the abuser are entitled to legal protection under the said Act. The Domestic Violence Act entitles the aggrieved person to file an Application under the Domestic Violence Act even for acts which have been committed, prior to the commencement of the Domestic Violence Act. Thus the Act applies retrospectively. This has been clarified by the Supreme Court in the case of V.D. Bhanot v/s Savita Bhanot Supreme Court (2012)3SCC183 which elucidates that “even a wife who had shared a household before the Act came into force would be entitled to the protection of the Act. While looking into a complaint under S. 12, the conduct of the parties even prior to the coming into force of the Act can be taken into consideration.” Filing of Complaint under Domestic Violence Act Important concepts of the Act: Sec. 2(a) "Aggrieved person" means any women 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; Under this Act, any aggrieved person (section 2(a) of the Act defines ‘aggrieved person’ as any woman who is, or has been in a domestic relationship with the perpetrator and alleges to be subjected to any act of domestic violence by the perpetrator) or any other person who has a reason to believe that an act of domestic violence has been, or is being, or is likely to be committed can approach a police officer, protection officer or a service provider. The concerned authority will take the complaint from the victim or will write for her. Complaint can be written in the prescribed format or can use her own words and language. Complaint can be made orally or in written form. The authority will also make a DIR (Domestic Incident Report) and will forward the copies to Magistrate, Police and the Service Providers. One can also directly file a complaint with the Magistrate. Sec. 2(f) "domestic relationship" means a relationship between two persons who live or have, at any point of time, lived together in a shared household, when they are related by consanguinity, marriage, or through a relationship in the nature of marriage, adoption or are family members living together as a joint family; Sec. 2(q) "respondent" means 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 a nature of a marriage may also file a complaint against a relative of the husband or the male partner; The definition of the term Respondent saw a spate of litigations where it was contended that since the definition of Respondent included an ‘adult male person’, therefore any complaint filed against a woman is not maintainable. In several cases , proceedings were dropped against Respondents who were female relatives of the male. However the definition of ‘Respondent’ was read with the Proviso to give a logical meaning to the definition of Respondent by the Supreme Court in the case of Sandhya Wankhede v/s Manoj Bhimrao Wankhede (2011) 3SCC650. The Supreme Court has held that the proviso to Section 2(q) does not exclude female relatives of the husband or male partner from the ambit of a complaint that can be made under the provisions of the Domestic Violence Act. Therefore complaints are not just maintainable against the adult male person but also the female relatives of such adult male. Similarly the Hon’ble High Court of Bombay has also held in Archana Hemant Naik vs. Urmilaben I. Naik and Anr. Reported in 2009(3) Bom.C.R. (Cri) 851 that "Aggrieved wife or female to whom the proviso to section 2(q) is applicable, can file complaint against relative of husband or relative of her male partner. Proviso refers to relative and not to male relative. Legislature contemplated, residence order under section 19(1) could be passed even against any female who is relative of husband or relative of male partner." Sec. 2(s) "shared household" means a household where the person aggrieved lives or at any stage has lived in a domestic relationship either singly or alongwith the respondent and includes such a household whether owned or tenanted either jointly by the aggrieved person and the respondent, or owned or tenanted by either of them in respect of which either the aggrieved person or the respondent or both jointly or singly have any right, title, interest or equity and includes such a household which may belong to the joint family of which the respondent is a member, irrespective of whether the respondent or aggrieved person has any right, title or interest in the shared household. In its first judgement on the Protection of Women
from Domestic Violence Act 2005, the Supreme Court has said, section 2(s) of the Act
which gives right of residence to a married woman in a shared household is not
properly worded and appears to be the result of clumsy drafting, but "we have to give
it an interpretation which is sensible and which does not lead to chaos in society."
A Bench, comprising Justices S B Sinha and Markandey Katju, ruled that "as
regards section 17(1) of the Act, in our opinion the wife is only entitled to claim a
right to residence in a shared household, and a shared household would only mean the
house belonging to or taken on rent by the husband, or the house which belongs to the
joint family of which the husband is a member." The apex court further said, "The
property in question in the present case neither belongs to Amit Batra nor was it
taken on rent by him nor is it a joint family property of which he is a member. It is
the exclusive property of appellant number two, mother of Amit Batra. Hence it can
not be called a shared household." In Vimalben Ajitbhai Patel Vs. Vatslabeen Ashokbhai Patel and Ors 2008(4)SCALE60 it was held that When it comes to maintenance of wife under the Domestic Violence Act read with the Hindu Adoptions and Maintenance Act, 1956 it is the personal obligation of the husband to maintain his wife. Property of mother in law can neither be subject matter of attachment nor during life time of husband his personal liability to maintain his wife can be directed to be enforced against such property. Decree if any must be against her husband or his properties but not of her mother in law. Therefore Property in the name of the mother-in-law can neither be a subject matter of attachment nor during the life time of the husband. Definition of ‘Domestic Violence’ and Types of Domestic Violence Section 3 of the Act says any act/conduct/omission/commission that harms or injures or has the potential to harm or injure will be considered ‘domestic violence’. Under this, the law considers physical, sexual, emotional, verbal, psychological, and economic abuse or threats of the same. Therefore even a single act of commission or omission may constitute domestic violence — in other words; women do not have to suffer a prolonged period of abuse before taking recourse to the law. The broad definition of Domestic violence encompasses all types of violence within its ambit. Physical Abuse Physical abuse is the use of physical force against a woman in a way that causes her bodily injury or hurt. Physical assault, criminal intimidation and criminal force are also forms of physical abuse like beating, kicking and punching, throwing objects, damaging property, punched walls, kicked doors, Abandoning her in a dangerous or unfamiliar place Using a weapon to threaten or hurt her , forcing her to leave the matrimonial home, hurting her children, using physical force in sexual situations. Sexual Abuse Sexual abuse is also a form of physical abuse. Any situation in which a woman is forced to participate in unwanted, safe or degrading sexual activity, calling her sexual names, hurting a woman with objects and weapons during sex, is sexual abuse. Forced sex, even by spouse or intimate partner with whom she has consensual sex, is an act of aggression and violence. Emotional Abuse Not all abusive relationships involve violence. Many women suffer from emotional abuse, which is no less destructive. Unfortunately, emotional abuse is often minimized or overlooked-even by the woman being abused. Emotional abuse includes verbal abuse such as yelling, name-calling, blaming and shaming. Isolation, intimidation and controlling behavior also fall under emotional abuse. Calls her names, insults her or continually criticizes her, Economic Abuse Economic abuse is not a very recognized form of abuse among the women but it is very detrimental. Emotional abuse mainly includes a woman not been provided with enough money by her partner to maintain herself and her children, which may comprise of money for food, clothing, medicines, etc and not allowing a woman to take up an employment. Forcing her out of the house where she lives and not providing her rent, in case of a rented share hold also amounts to abuse. Depriving her of all or any economic or financial resources to which the person is entitled under the law or custom, restricting the woman’s access to the shared household. Disposing or alienating the assets of the women whether movable or immovable, valuable, shares, securities, bonds and the like other property in which she may an interest. Most significantly as stated in the aforementioned paras, the Act gives a very wide interpretation to the term domestic relationship' as to take it outside the confines of a marital relationship, and even includes live-in relationships in the nature of marriage within the definition of domestic relationship' under Section 2 (f) of the Act. The Supreme Court in the case of Chanmuniya Vs Chanmuniya Virendra Kumar Singh Kushwaha and Anr. (2011)1SCC14 held that where a man, who lived with a woman for a long time and even though they may not have undergone legal necessities of a valid marriage, should be made liable to pay maintenance if he deserts her. A Man should not be allowed to benefit from legal loopholes by enjoying advantages of a de facto marriage without undertaking duties and obligations - Expansive interpretation should be given to term wife to include even those cases where a man and woman had been living together as husband and wife for a reasonably long period of time. Therefore where partners lived together for a long spell as husband and wife, a presumption would arise in favour of a valid wedlock. Maintenance of mother In the case of Ganesh S/o. Rajendra Kapratwar, Abhijeet S/o. Ganeshrao Kapratwar and Parijeet S/o. Ganeshrao Kapratwar Vs The State of Maharashtra and Sow. Shantabai W/o. Rajendra Kapratwar 2010(112)BOMLR1082 the Bombay High Court in an application preferred by the mother for maintenance and medical expenses under the Domestic Violence Act and the Hindu Adoptions and Maintenance Act, 1956 against her son and grandsons has held that "Grandsons would have been liable to pay maintenance to grandmother under Section 22(1) of the Hindu Adoptions and Maintenance Act, 1956, provided their father had not been alive and not capable of paying maintenance." Section 12 recourse to the legal remedy An aggrieved person either personally or through any other person on behalf of the said aggrieved person or a protection officer can make an application to the Magistrate for the various reliefs including resident, protection, monetary and custody as well as for the compensation orders. To provide speedy remedy to the aggrieved person under the Domestic Violence any such application has to be decided by the Magistrate within 30 days from the receipt of the said application. How does the law ensure that a wife who takes legal recourse in the event is not intimidated or harassed? Section 17 and 18 of the Domestic Violence Act provides an important aspect of which aims to ensure that an aggrieved wife, who takes recourse to the law, cannot be harassed for doing so. Thus, if a husband is accused of any of the above forms of violence, he cannot during the pending disposal of the case prohibit/restrict the wife’s continued access to resources/ facilities to which she is entitled by virtue of the domestic relationship, including access to the shared household. In short, a husband cannot take away her jewellery or money, or throw her out of the house while they are having a dispute. Section 17 of the law, which gives all married women or female partners in a domestic relationship the right to reside in a home that is known in legal terms as the shared household, applies whether or not she has any right, title or beneficial interest in the same. The law provides that if an abused woman requires, she has to be provided alternate accommodation and in such situations, the accommodation and her maintenance has to be paid for by her husband or partner. However as mentioned in the aforementioned paras while defining ‘shared household’ a woman has no right of residence in a house belonging to her mother in law and/or father in law. The law, significantly, recognizes the need of the abused woman for emergency relief, which will have to be provided by the husband. A woman cannot be stopped from making a complaint/application alleging domestic violence. She has the right to the services and assistance of the Protection Officer and Service Providers, stipulated under the provisions of the law. A woman who is the victim of domestic violence will have the right to the services of the police, shelter homes and medical establishments. She also has the right to simultaneously file her own complaint under Section 498A of the Indian Penal Code. Section 18 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 any other place that the abused women frequents…. If a husband violates any of the above rights of the aggrieved woman, it will be deemed a punishable offence. Charges under Section 498A can be framed by the magistrate, in addition to the charges under this Act. Further, the offences are cognizable and non-bailable. Punishment for violation of the rights enumerated above could extend to one year’s imprisonment and/or a maximum fine of Rs 20,000. Section 20 further empowers the Magistrate to pass order for monetary reliefs to the aggrieved person from respondent to meet the expenses incurred and losses suffered and further the maintenance of the aggrieved person and her children including maintenance consistent with the standard of living to which the aggrieved person is accustomed under, or in addition, to section 125 of the Criminal Procedure Code, 1973 or any other law for the time being in force. The only defect in the Domestic Violence Act is the implementation of the monetary reliefs passed under section 20. There are many cases where the respondent willfully and deliberately defaults in payment of maintenance. The only remedy available under the Act is to direct the employer or a debtor of the respondent to either directly pay to the aggrieved person or to deposit the said amount with the magistrate, which is very difficult to implement. The need of the hour is that the Domestic Violence Act should contain a strict provision/punishment for each default as specifically provided in the Criminal Procedure Code, 1973 for the default and not obeying the maintenance orders passed under section 125 of the said procedure code however at the same time the Courts must be vigilant that a woman is not using the provisions of the Act to extract monies from her husband and in laws and/or to harass them. Section 21 clause lays down that the Magistrate at any stage of hearing of the application can grant temporary custody of any child to the aggrieved person or to the person making an application on her behalf and specify the arrangements for visit of such child by the respondent. However the magistrate may even refuse to allow the respondents such visits if in his opinion such visits may be harmful to the interest of the child. Section 22 says that in addition to the monetary reliefs as stated in Section 20, the aggrieved person can also demand compensation or damages, both from the respondent for the injuries including mental torture and emotional distress caused to her due to the domestic violence by the respondent. Section 23 empowers the magistrate to pass ad-interim reliefs to the aggrieved person, the magistrate can also pass ex-parte reliefs, if prima facie there is apprehension of the respondents committing any act of Domestic violence on the aggrieved person. Under the said provision the magistrate has the vested powers to grant any and as many reliefs as contemplated in the section 17 to 22. Section 29 There is also provision for the aggrieved person, if not satisfied by the order passed by the Magistrate to approach the higher court by way of an appeal under section 29. The aggrieved person can file an appeal for enhancement of the monetary reliefs as well as for other reliefs, which the magistrate refused or ignored to grant to the aggrieved person. Section 31 The penalty for breach of protection order by the respondent is also very stringent, which may put the respondent in jail for not only disobeying the Protection order or an interim protection order for a term which may extend upto one years or with fine which may extend to 20,000/- or with both. Section 32 The Act has made the offence under section 31 a cognizable and non-bailable offence and the respondent can be put behind bars for the said breach upon the sole testimony of the aggrieved person. Functionaries Appointed Under the Domestic Violence Act
D.I.R Domestic Incident Report is a document that contains the details of the aggrieved person and the respondent (perpetrator) and their relationship. It also includes information regarding aggrieved’s children and their residence, specific details regarding the incidents of domestic violence, types of orders required under the Act and requirement of any assistance including medical facilities, shelter home etc. CONCLUSION We will never live in a violence-free world, though that is a worthy goal. Efforts to achieve it, at the very least, put us further along the path of progress. Apart from sensitizing the police to view domestic violence cases as seriously as any other crime, the varying causes which can spark the violence within the four walls of homes need to be analyzed carefully and a wise study of the factors causing the violence may prevent a family to suffer from the menace of domestic violence. By Mrs Nafisa Khandeparkar |
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