Domestic Violence: Types and Judicial Trend By: Naina Agarwal

In the case of Bhartiben Bipinbhai Tamboli v. State of Gujarat and Ors[1]., the High Court of Gujarat has extensively dealt with the provisions under Domestic Violence Act, 2005 and elucidated that domestic violence in country is increasing at a rampant rate and such violence in one form or the other is faced by many women in day to day life. But the irony is that it is he least reported form of cruel behavior and this happens because women resins to her fate to vicious cycle of violence and discrimination by patriarchy in all her roles be it mother, daughter, sister, wife etc. This passive attitude of women coupled with absence of laws to address rising women issues and poor implementation of existing norms have made them more vulnerable. Many cases are not reported due to the societal stigma and attitude of women wherein they are subjugated under garb of patriarchy.

Until 2005, the remedies available to victim was very limited. The women had option either to go to the civil court for decree of divorce or initiate proceedings in criminal court under Section 498A of Indian Penal Code, 1860[2]. However, in either of two no emergency relief was provided to the victim. Also, live in relationship or relations outside the scope of marriage was not taken into consideration. Hence, this led to sufferings by women all around and the need was felt in society to uplift their position by giving justice. The main objective of Domestic Violence Act, 2005 provides for protection of women from violence inflicted by a man or/and woman. It is a progressive act which aims to protect women irrespective of relationship she shares with the accused. The definition also considers the partners in live in relationships as well.[3]

TYPES OF DOMESTIC VIOLENCE      

When the word domestic violence comes into picture the general public thinks this of as physical abuse but it is just a part of it and hence, should not be considered in its entirety. There are several other categories which torments women and has devastating consequences. Various courts have given their interpretation and hence such cannot be ignored. Therefore, different forms of domestic violence as discussed under case of Bhartiben Bipinbhai Tamboli v. State of Gujarat and Ors.[4] are as follows:

1. Control: This is the form wherein the abuser control behavior in order to dominate women and feel justified on the notion of patriarchy which is the core of domestic violence. It is subtle, pervasive and insidious. It includes controlling in various ways like checking of phone calls, restrictions on food and clothing, checking odometer to judge usage of car etc.
2. Physical abuse: It is the most recognized form of domestic violence and it involves use of force on women to cause injury. For example; punch, slap, stabbing, choking, forcing you to take drugs etc. Moreover, such an injury can be a minor one and not strictly a major one. Mere slapping causing even minor injuries would tantamount to domestic violence.
3. Emotional abuse: It harms an individual self-worth and forces one to question one’s own self-respect and identity. It exploits person’s vulnerability and insecurity. It is brought by continuous insult, humiliation and criticism for everything done by her. It is very difficult to assess such notion. Many states do not consider such ground and think it to be common on the face of an unhealthy relationship.
4. Sexual abuse: It is one of the common form of domestic violence these days. It includes both sexual assault and rape along with harassment in form of inappropriate touch or behavior. For example, if a woman is forced not to use contraceptives or to abort, then it counts under sexual abuse and such is a form of reproductive coercion. But it becomes difficult to discuss and identify.
5. Financial abuse: It can take in many forms. For example, a wife is forced by husband not to work outside and remain within the four walls of house. Compared to physical and sexual abuse, it is less obvious. It happens mainly where the resources are pooled together and one person have entire control over it. Women have no choice in this case but to be entirely dependent and remains at partner’s mercy. Also, a man in such a case can neglect or overlook children.
6. Psychological abuse: It happens when a man threatens or causes fear in behavior. A single action under this cannot be considered as domestic violence but persistent behavior of this kind violates person’s dignity. It has a wider ambit and covers many abuses like preventing women to talk to others including her parents without his prior permission or threatening women with bad behavior or asking her to leave his house.

DOMESTIC VIOLENCE AND JUDICIAL TRENDS

Domestic violence is a societal issue that has been present in the society since time immemorial. We live in the 21^st century and despite that people have orthodox notions regarding women and hence treat them unequally despite provisions in constitution for equality. Hence, a need was felt in 2005 wherein the protection of women from Domestic Violence Act was passed to provide relief to tormented women and the scope of the act has been increasing in catena of cases by interpretations of high courts and supreme court. Some of such interpretations have been discussed below:

What is the meaning of shared household?

The court in the case S.R. Batra v. Smt. Taruna Batra[5], held that the definition of the term under Section 2(s) of the Act has been drafted in a clumsy manner and hence, it requires judicial interpretation.

The court held that under Section 17(1) of the Act[6] wife is entitled only to claim her right as residence in a shared household and the shared household would mean only those house belonging to husband or taken on rent or belongs to joint family of whose her husband is a member. Supposedly, if the property does not belong to either of the above category then it would tantamount to exclusive property of husband’s mother and not shared household.

Are women under live-in relationship protected?

The supreme court in D. Veluswamy v. Patchaiammal[7], gave a wider scope of the words ‘aggrieved person’ under Section 2(a) of the Act[8]. The court adumbrated 5 main ingredients of such live-in relationships:

1. Both parties must behave like a husband and wife in front of society.
2. They must acquire a valid legal age for marriage.
3. They should not be disqualified from entering into marital ties. For example; neither of them should have spouse living at the time of such live in relationship.
4. They must have voluntarily co-habited for ‘significant’ time period.
5. Both should have lived together in a shared household.

The Apex Court held that not all live in relationship are to be considered under the Act, but fulfillment of above mentioned conditions is essential. The court further interpreted that if a man possesses ‘keep’ who he maintains economically and uses mainly to fulfill his lust or sexual desires then this could not count under relationship of marriage nature. Moreover, court talked about ‘palimony’ which is to be given to women for her maintenance who has lived a significant period of time without marrying him and he ultimately deserted her.

Can women in live in relationship claim maintenance under the Act?

The court in Lalita Toppo v State of Jharkhand and Ors.[9] clearly stated that estranged wife or one in live in relationship who has not legally wedded are entitled to claim maintenance under the Act and not under Section 125 of CrPC.  The court interpreted Section 3(a) in a wider sense and included economic abuse in ‘domestic violence’.

Is it a right of women to reside in her matrimonial house?

The Bombay High Court in the case Roma Rajesh Tiwari v. Rajesh Dinanath Tiwari[10] expressed the objects of the Act i.e. to protect women from domestic violence and protect her right to reside in matrimonial residence or shared household.

Is mother entitled to maintenance under the Act?

The Bombay High Court in Ganesh S/O Rajendra Kapratwar Abhijeet v State of Maharashtra[11] held that:

“Grandsons would have been liable to pay maintenance to grandmother under Section 22(1) of the Hindu Adoption and Maintenance Act, 1956 provided their father had not been alive or capable of paying maintenance.”

Is the Act applicable retrospectively?

The Apex Court upheld the Delhi High Court judgement V.D. Bhanot v. Savita Bhanot[12] that the application of at is applicable retrospectively and hence the aggrieved women who faced torment before the act came into existence can also file a case.

Is there an obligation on husband to maintain their wife under the Act?

In Vimla Ajitbhai Patel v. Vatslaben Ashokbhai Patel and Ors[13]., the court held that in this context the Domestic Violence Act has to be read with Hindu Adoption and Maintenance Act, 1956. Hence, it is the personal obligation of husbands to maintain their wives.

The court in Binita Dass v. Uttam Kumar[14] clarified that qualification and capacity to earn cannot be the ground to deny interim maintenance to wife.

Furthermore, Calcutta High Court in Smt. Haimanti Mal v. State of West Bengal, held that such compensation should not be a guess work but have some rational basis. Also, when the husband is trying to show less income in order to give less amount, proper identification must be done and provide adequate and proportionate maintenance as done in Manju Sharma v. Vipin[15].

Supreme Court recently in Megha Khandelwal v. Rajat Khandelwal[16] held that it is an obligation of husband to pay maintenance to wife even if she is well educated.

Supreme court issued certain guidelines in Krishna Bhatacharjee v. Sarathi Choudhary and Another[17]. It was laid down that:

1. It is the duty of the court to analyze the facts from all around to check if it is legally sound and the court must not be biased for the same.
2. The principle ‘justice to the cause is equivalent to the salt of ocean’ should be considered and uphold the truth to impart justice.
3. Before dismissing a case, it is the duty of the court to check if the aggrieved person under legislation have not faced with situation of non-adjudication as the act works for the beneficial of women in society and uphold the principles enshrined in the constitution.

‘Duty of wife not to implicate all members of the family’

In Ashish Dixit v. State of U.P and Another[18], the court held that wife cannot implicate everyone in the family other than husband and in laws as in the present case the petitioner made even those members a party to the suit of which even complainant was unaware of their names. 

Against whom complaint can be filed?

The issue has remained a controversial one since the judgement of Sandhya Wankhede v. Manoj Bhimrao Wankhede[19] was delivered. Section 2(q) of Domestic Violence Act defines respondent as

“any adult 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”

Hence, previously it was held that complaint can be filed against an adult male member only. But the court increased the scope of definition and held that even female members can be admitted.[20]

Justice D Y Chandrachud along with others in Ajay Kumar v. Lata[21] held that aggrieved women can also file a complaint against husband’s relative or male partner.

However, divorced women are not entitled to get benefits under the Act as held in Sadhana v. Hemant[22].

Can an order be passed directing respondent to vacate the shared household?

The Bombay High Court in Sabita Mark Burges v. Mark Lionel Burges[23], held that under Section 19(1)(b) of the Act, the respondent may be directed to be removed himself from the shared household despite he being the owner of such shared household. The rationale behind the same lies on the notion that though he is an owner but that does not mean that he has right to be violent with her wife.

In case of Meenavathi v. Senthamarai Selvi[24] the court interpreted proviso to Section 19 and held that it cannot be passed against any woman.

Also, in the recent judgement of Delhi High Court in Shachi Mahajan v. Santosh Mahajan[25], the court held that in case the subject property is being sold, it is the right of daughter in law to be provided with an alternative residence or shared household along with compensation under Section 19 of the Act.

Supreme Court in Kamlesh Devi v Jaipal and Ors. held that vague allegations merely are not enough to start the proceedings against the respondent. 

CONCLUSION

Society being dynamic, changes with the passage of time and hence, the interpretation of statutes should not be limited to just literal form. The two notions i.e. laws according to society and society according to law must be taken into consideration. Various interpretations made by the court in various judgements helps one to have faith in justice system.