Critique- Domestic Violence Act: A Ray of Hope?

The Author, Smera Sarnath Sonker is a 2nd year Law Student at Dr. Ram Manohar Lohiya National Law University.

LIST OF ABBREVIATIONS

• DIL – Daughter in law
• SIL – Sister in law
• MIL – Mother in law
• FIL – Father-in-law

PREFACE

About 86% women who experienced violence never sought help, and 77% of the victims did not even mention the incident(s) to anyone. Domestic Violence is not a new problem, it has always been there. Recently during the lockdown period, alarming increase in the cases of Domestic Violence in India, has become a great matter of concern. Nevertheless, this evil has its roots all over the world, its growing like a pandemic.

Women are the most vulnerable in such cases and are often targeted but that doesn’t mean that men are not targeted. Most of the countries have laws made to deal with such cases, India too has a comprehensive legislation known as The Protection of Women from Domestic Violence Act, 2005 (hereinafter, referred as DVA). The project will study and analyse the act of Domestic Violence and the legislation enacted to prevent it and punish the culprits.

DOMESTIC VIOLENCE: A BRIEF OVERVIEW OF THE CRIME

Domestic violence, in general terms, has been defined as violent or aggressive behaviour within the home, typically involving the violent abuse of a spouse or partner. It has been recognized as an inhumane and brutal crime by most of the nations except for some nations situated in Middle East, Western Asia and sub-Saharan Africa.

It is estimated that 35 per cent of women worldwide have experienced either physical and/or sexual intimate partner violence or sexual violence by a non-partner (not including sexual harassment) at some point in their lives. However, some national studies show that up to 70 per cent of women have experienced physical and/or sexual violence from an intimate partner in their lifetime.

Domestic violence not only injures the woman physically, it also has grave consequences on mental health. Serious, long term domestic violence can lead to post traumatic stress disorder, particularly battered woman syndrome, woman starts believing that there is no way out and suffers in silence. It further has very negative effect on self-respect, ego and confidence. The worst part of domestic violence is that the abuser is often very close to the victim and hence, the victim tries to sustain abuse for the sake of love; many cases of domestic violence go unreported just because of this reason.

Initially, domestic violence was supposed to be limited to women, but recently cases in which men are abused have also come into notice. The legislation, The Protection of Women from Domestic Violence Act, 2005 was enacted in India to protect women from domestic violence, sadly, many cases have been reported in recent years, where woman have misused this legislation for ulterior motives. S.3 of the act provides the definition of domestic violence and the types of abuse under its purview.

A number of factors are responsible for domestic violence, such as, alcoholism, drug-addiction, substance abuse, loveless marriage, mental illness, patriarchal society, etc. Nevertheless, domestic violence is a brutal crime which shatters an individual not just physically but also psychologically, and that is why there are strict laws against it.

MAJOR PROVISIONS OF THE ACT

• S.2 of DVA is the definition clause, it defines various terms related to the act, some of the important definitions are:

1. “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;
2. “domestic incident report” means a report made in the prescribed form on receipt of a complaint of domestic violence from an aggrieved person;
3. “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;
4. “Protection Officer” means an officer appointed by the State Government under sub-section (1) of section 8;
5. “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 the nature of a marriage may also file a complaint against a relative of the husband or the male partner;
6. “shared household” means a household where the person aggrieved lives or at any stage has lived in a domestic relationship either singly or along with the respondent and includes such a house hold 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 the aggrieved person has any right, title or interest in the shared household;
7. “shelter home” means any shelter home as may be notified by the State Government to be as shelter home for the purposes of this Act.

• S.3 of DVA defines domestic violence for the purpose of this legislation as 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;

    (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;

   (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);

   (d) otherwise injures or causes harm, whether physical or mental, to the aggrieved person.”

It must be noted that for the purpose of this act, ‘emotional and verbal abuse’, ‘physical abuse’, ‘economic abuse’ has been explained separately in the S. 3 explanation 1.

Furthermore, it has been clarified, “For the purpose of determining whether any act, omission, commission or conduct of the respondent constitutes “domestic violence” under this section, the overall facts and circumstances of the case shall be taken into consideration.”

• S.5 of DVA elucidates the duty of law enforcement officers to make the woman more aware of her rights and laws protecting her against the violence- she is also allowed to file complain under S. 498A of IPC, which states:

“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.”

• S.8 of DVA provides for appointment of “protection officer” by the state, preferably a woman. The Protection Officer shall be under the control and supervision of the Magistrate, and shall perform the duties imposed on him by the Magistrate and the Government by, or under, this Act.
• S.9 further specifies certain duties of the “protection officer” such as:

1. To assist the magistrate.
2. To make domestic incident report.
3. to ensure that the aggrieved person is provided legal aid under the Legal Services Authorities Act, 1987 (39 of 1987) and make available free of cost the prescribed form in which a complaint is to be made.
4. To provide for a safe shelter home.
5. To get the aggrieved person medically examined, if she has sustained any physical injuries.
6. to ensure that the order for monetary relief under section 20 is complied with and executed, in accordance with the procedure prescribed under the Code of Criminal Procedure.

• S.11 imposes certain duties on the government to take measures to ensure:

1. the provisions of this Act are given wide publicity through public media including the television, radio and the print media at regular intervals.
2. Periodic sensitization and awareness training of government officers on the issue of domestic violence.
3. Effective coordination between various ministries to work against domestic violence.
4. protocols for the various Ministries concerned with the delivery of services to women under this Act including the courts are prepared and put in place.

• S. 17 provides woman the right to reside in shared household:

1. Irrespective of any law in force, every woman has the right to reside ins hared household, whether or not she has any title, right or beneficial interest.
2. Except for the procedure established by law, the aggrieved person cannot be evicted or excluded from the shared household by the respondent.

• S.18 provides that a magistrate can pass protection order, prima facie looking at the facts and determining whether domestic violence has happened or not, the order further may:

1. Prohibit the respondent to enter into the workplace or frequented place of the aggrieved person.
2. Prohibit the respondent from operating any joint accounts, locker or disposing joint property or streedhan or any other asset of the aggrieved person.
3. Prohibit the respondent to communicate via any medium with the aggrieved person.
4. Prohibit causing any violence to the person dependent to aggrieved person.

• S.20 provides for monetary reliefs to be given to aggrieved person, for:

1. Loss of earnings;
2. Medical expenses;
3. Loss caused due to destruction, damage or removal of any property under the control of aggrieved person;
4. Maintenance of aggrieved person and her children, according to lifestyle they are accustomed to.
5. Monetary relief should be fair, consistent, adequate and reasonable.

• S. 21 provides for custody orders:

1. The temporary custody of the child or children would be with the aggrieved person or the person making application on her behalf.
2. The arrangements for respondent visiting the child would be specified explicitly, however the magistrate shall refuse to allow such visits.

• S. 23 provides, “if the Magistrate is satisfied that an application prima facie discloses that the respondent is committing, or has committed an act of domestic violence or that there is a likelihood that the respondent may commit an act of domestic violence, he may grant an ex-parte order on the basis of the affidavit in such form, as may be prescribed, of the aggrieved person under section18, section 19, section 20, section 21 or, as the case may be, section 22 against the respondent.”

IMPORTANT CASE LAWS REGARDING THE ACT

• S.R. Batra v. Taruna Batra

The Supreme Court held, that the definition of shared household in S.2(s) should be interpreted in a sensible manner as it has drafting errors. They further held:

“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 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 the husband Amit Batra is a member. It is the exclusive property of Appellant 2, mother of Amit Batra. Hence it cannot be called a “shared household”.”

• Satish Chandra Ahuja v. Sneha Ahuja 

In this recent judgement, the Supreme Court held, shared household can be any premise if the couple has lived there together for a considerable period of time, even if the ownership is of MIL or FIL.

•  D. Veluswamy v. D. Patchaiammal

The Supreme Court held, that the definition of “shared household” under S.2(f) includes the term “through a relationship in the nature of marriage”, the court with this regard laid down four essentials of such relationship:

“(a) The couple must hold themselves out to society as being akin to spouses.

(b) They must be of legal age to marry.

(c) They must be otherwise qualified to enter into a legal marriage, including being unmarried.

(d) They must have voluntarily cohabited and held themselves out to the world as being akin to spouses for a significant period of time.”

Hence, according to the court, keeps, one-night stands or weekends spend together will not come under the purview of “shared household” and thereby Domestic Violence Act.

Furthermore, the court held with regard to the specific case, “Having noted the relevant provisions in the Protection of Women from Domestic Violence Act, 2005, we may point out that the expression “domestic relationship” includes not only the relationship of marriage but also a relationship “in the nature of marriage”, which has been defined above.

Further, in Reshama Begum v. State of Maharashtra, the Bombay High Court concluded that not all live-in relationships qualify to be a relationship equivalent to marriage.

• Lalita Toppo v. State of Jharkhand

The Supreme Court held, live-in partners and estranged wives are also included in the definition of “aggrieved person” under S. 2(a) of the Act.

• Sandhya Wankhede v. Manoj Bhimrao Wankhede

S. 2(q) of the act was questioned as whether it would include female relatives of respondent under its ambit? The Supreme Court held,

“No restrictive meaning has been given to the expression “relative”, nor has the said expression been specifically defined in the Domestic Violence Act, 2005, to make it specific to males only. In such circumstances, it is clear that the legislature never intended to 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, 2005.”

• Vimlaben Ajitbhai Patel v. Vatslaben Ashokbhai Patel and ors.

The Supreme Court held, that it is the obligation of husband (only) to maintain his wife, property of any other relative even MIL cannot be subjected to maintain wife either during husband’s lifetime or after his death.

• V.D. Bhanot v. Savita Bhanot

The Supreme Court in this case gave the Domestic Violence Act of 2005 retrospective effect and it was held that, even a wife who had shared household before the enactment of this act, is entitles to the protection provided by it.

• Shachi Mahajan v. Santosh Mahajan

The Delhi High Court held, the respondent has to provide alternate and equivalent accommodation to the wife, in case she does not wants to live in that household.

• Megha Khandelwal v. Rajat Khandelwal

The Supreme Court passed an order stating that, relief under the Domestic Violence Act cannot be denied merely on the ground that wife is educated and earns well.

• Sabita Mark Burges v. Mark Lionel Burges

Bombay High Court held, woman cannot be forcible removed from shared household, even if husband has the sole ownership of the property, he can be restrained from entering into the house according to magistrate’s order.

• Hiralal P. Harsora v.  Kusum Narottamdas Harsora

The Supreme Court, struck down a part of Section 2(a) of DV Act holding it to be violative of Article 14 of the Constitution, and the phrase ‘adult male’ as appearing in Section 2(q) stood deleted and the case against the wife of the respondent (DIL/SIL of aggrieved persons) was filed.

This case was misinterpreted in Mohd. Zakir v. Shabana & Ors. wherein the High Court of Karnataka held, that a petition under the Domestic Violence Act by the husband or an adult male (as aggrieved person) can be entertained; later the verdict was withdrew by J. Anand Byrareddy by an order.

CONCLUSION AND SUGGESTION

Domestic Violence has been an age-old social evil and women at home have been tormented and tortured by their very own and loved family members since time immemorial. However, in 2005 there was a ray of hope for such woman when the legislature enacted, The Protection of Women from Domestic Violence Act. The act has been both appreciated and criticised on various merits and demerits.

One of the major concerns regarding this act is the alienation of keeps or mistresses from the purview of “shared household” under S.2 of the Act, as such women become helpless if they are subjected to domestic violence as they have no rights per se.

Further, in recent times cases of misusing this legislation have been seen, hence, it becomes utterly necessary to impose proper checks and balances, so that no party is punished against the principles of natural justice.

Furthermore, men have been alienated from the purview of the term “aggrieved person” under S. 2, however, there have been cases where woman have subjected men to domestic violence by abusing them emotionally, economically and even physically in certain cases. Hence, legislation should either be made more inclusive or a separate legislation should be enacted to prevent domestic violence against men.

It has been 15 years since the act was enacted, the times have changed significantly, therefore, there is a dire need to make certain changes in order to make the act more adaptive and inclusive with the current times and provide a new ray of hope.

REFERENCES

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