PROTECTION OF WOMEN FROM DOMESTIC VIOLENCE ACT, 2005: STRIKES THE VERY ROOT OF FAMILY AND MARRIAGE

INTRODUCTION

Domestic violence is a wide sense includes all types of physical and mental cruelties, and use of force upon any member of family by its other members. In a limited or technical sense it means

of the family by other members. Undoubtedly it

involves human rights issues and a serious obstruction to development. There is a constant erosion of the basic human values of tolerance and the spirit of “live and let live “. It is unfortunate that home, the sweat home, the abode of rich and complex feelings and place of retreat for prospective sphere of family life, could be very dangerous space for women . Domestic violence, being incongruity in terms and gender neutral in words, is frequently and privately inflicted on women. Wife battering is the prominent type of domestic violence, practiced as , a matter of legal 1.

privilege in common law Rule of thumb represented that the husband had the right to beat his 2

wife as long as he used a stick no thicker than his thumb .Blackstone .Blackstone recognized husband‟s right 3

to give his wife moderate correction by domestic chastisement to prevent her misbehavoiur . The practice was prevalent in lower ranks of people , and continued although sparsely in 20

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century

1.

Dobash and Dobash, Violence Against Women(1980) Ch.4 cited by MDA Freeman at p.238.

2.

Eisnberg and Micklow, “The Assaulted Wife „Cathh.22‟ Revisited” (1977) 3 Women‟s Rights Law Reporter 138 at p.161.

3.

Blackstone, commentaries commentaries on the Law of England(1765) see also MDA Freeman at p.2 39.

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England with a rider that the beating should not be violent or cruel. In meacher v. meacher . The court of appeals declined to uphold husband ‟s right to assault his wife when she refused to obey his orders not to visit her relations. B ut some cases in1959 & 1975 support husband‟s privilege 5

so long as its effect was moderate . Anyway, the traditional rule reflected subordinate position of women in family and other social institution . Violence against women is present every country, cutting across the boundaries of  culture, class, education, income, ethnicity and age. Even though most societies prescribe against violence but whenever violence takes place within home, a common phenomenon, the abuse is effectively condoned by the tacit silence and passivity displayed by the state and the law enforcing machinery. Violence against women is not a myth, but reality. It exists and exists everywhere. The problem of violence against women is as hold as the world in cosmologies, morphologies or legends. The type, frequency, intensity and control of violence against women may vary from time to time or place to place but it is there everywhere. In India history speak that women are considered as a divine force but multi cultural India society placed the women at different position there is no uniformity of status of women in

4.

(1946) 2 All Er 307.

5.

McKenzie v. McKenzie, McKenzie, The times, 5-6-1959, see also, MDA Freeman, Freeman, at p.240.

Indian society. vedic period was undoubtedly most glorious period or account of freedom and equality of women. This was the time when women participated in every walk of life. Women studied in gurukuls and enjoyed liberty in every sphere. They acquired efficiency in art, music and even warfare. Upanishads regard wife as true companion of husband‟s. The wife has been called the root of prosperity, enjoyment and dharma in Mahabharata. The man was not religiously competent to perform duties without his wife. The system of dowry and polygamy was prevalent in ruling class. There was no prohibition on widow remarriage. There was equality of status between boy and girl, that is why girls used to undergo upnayana sanskr. It was post-vedic period

when the position of women so a drastic change and

degradation. As Manu attempted to set-up a male dominated society by increasing the authority imposed hardships and restrictions on females. Birth of girl child was treated as curse and was denied access to education. During this period only, the thread ceremony was also denied. During this, pre-puberty marriage system was originated, thus marriageable age of girls was also lowered to 9 to 10 years. On the other hand Manu believed that where the women are respected, there all deities are pleased and where they are dishonored there all religious activities become fruitless. Surprisingly in post-vedic period the women ‟s right to property was recognized and the concept of „stridhan‟ prevailed. As Manu defined – stridhan means  –  that which was given to her the four nuptial fire, in bridal procession, in token of love and which she has 6

received from father, mother, brother and husband .

6.

Yaj. Smriti, I-85-6: “Rakshetkanyaam pitaa vinnaampatih putraa sscha vaardhake I Abhaave jnaataya steshaam na swaatantryam kwachit striyaa”

Further degradation of women happened during medieval period with the inversion of  Alexander and Huns. With security threats of invading soldiers roaming countrywide, consequently, women where placed behind the veil. During this period the social evil like child marriage, sati and female infanticide mush roomed extensively. The system of devedasi and polygamy had also spread widely in countryside. During this period the women are oppressed in every sphere. Thereafter, the position of Indian women saw little air of change mainly due to western impact on Indian cultural pattern. The concept of equality, liberty and individual secularism although arose but limited to ruling class. Social reformers showed the concern regarding the problems of sati, prohibition on remarriage, denial of right to property, child marriage and education to women. Consequently , a number of legislations where enacted like Widow Remarriage Act and Hindu Women‟s Right To Property Act, which intended to eradicate certain social evils. It is during the British period public awareness was created while women‟s political and social participation attained momentum. In post-independence, the Constitution Of India,1950 provided certain previsions relating to women and did not discriminate men and women but it treats alike. Constitution also included general and special provisions for up liftmen and development of this status of women. Certain provisions are specifically designed for the benefit of women. Despite the fact, where had been many legislations protecting the female, she is still living under the shadow of fear and insecurity because the violence in her life is usually perpetrated by males who are or who have been, in position of trust and intimacy and are husba nd‟s, boyfriends, fathers, father-in-law, step father, brothers, uncles, sons and other relatives. Domestic violence in most cases perpetrated by men against women. Women can also be violent but there actions account for a small percentage of  domestic violence.

On 20, December 1993, UN Declaration on the Elimination of Violence Against Women described domestic violence as ..”any act of gender -based violence that results in or is likely to result in physical, sexual or psychological harm or suffering to women, including threats of such acts, coercion or arbitrary deprivation of liberty whether occurring in public or in priv ate life”. The Vinna Accord of 1994 and the Beijing Declaration and the platform for action (1995) have acknowledged that the Domestic Violence is undoubtedly a human right issue. The phenomenon of Domestic Violence in India is widely prevalent and in-order to provide a remedy in the civil law for the protection of women from being victims of Domestic Violence and to prevent the occurrence of domestic violence in the society. The Protection of Women from Domestic Violence Bill was introduced to the parliament keeping in view the rights guaranteed under articles 14, 15 and 21 of the Constitution. Earlier also the same kind of bill was introduced during the year 1994, but unfortunately the bill could not see the light of the day . 13

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September

2005, was significant in the history of the women‟s movement following ten years of persistent efforts when the Protection of Women from Domestic Violence Act , 2005 received the President‟s assent. This act is a comprehensive legislation to protect women from all forms of domestic violence. The Act covers women who have been are in a relationship with the abuser and are subject to violence of any kind  –  physical, sexual, mental, verbal or emotional. It has been brought into force with effect from 26-10-2006. The Act 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, a relationship in the nature of marriage or adoption. In addition , relationships with

family members living together as a joined family are also included. Even those women who are sisters, widows, mothers, single women or living with the abuser are entitled to the protection under this legislation. Where as the Act enables the wife or the female living in a relationship in thee nature of  marriage to file a complaint against any relative of the husband or the male partner, but it does not enable any female relative of the husband or the male partner to file a complaint against the wife or the female partner. It defines “Domestic Violence” to include actual abuse or the threat of abuse that is physical, sexual, verbal, emotional or economic. Harassment by way of unlawful dowry demands to the women or her relatives would also be covered under this definition . This Act confers on the aggrieved woman the right to reside in a shared house hold, whether or not she has any title or right in the same. In fact, a respondent, not being a female , can be directed under the act to remove himself from the shared household or to secure for the aggrieved women the same level of alternate accommodation as enjoyed by her in the shared household or to pay rent for the sale. The orders for reliefs the aggrieved women is entitled to under the act include protection orders, residents orders, monitory relief, custody orders and compensation orders. The act empowers the magistrate to pass protection order in favor of the abused to prevent the abuser from aiding or committing an act of domestic violence or any other specified act, entering a work place or any other place. Frequented to communicate with abused, isolating any assets used by both the parties and causing violence to the abused, or relatives or others who provide her assistance against domestic violence.

It provides for appointment of Protection Officers and recognizes and involves nongovernmental organizations as service providers for providing assistance to the abused with respect to her medical examination, obtaining legal and safe shelter etc. The family is taken to be a sanctuary of peace, harmony and safety but it often turns out to be a myth. In fact it can be the very place which breeds and allows injustice and violence due to its closed door policy. The horrendous nature of domestic violence has been experienced and documented across nations and cultures throughout the world in all classes and communities. Domestic violence is a universal phenomenon. A day beginning has been made in defining a change through the latest legislation but unless there is commitment from society to build a culture than makes acts of domestic violence completely unacceptable, government laws will not be able to address the issue in its entirely . Misuse of the Act, like all such Acts in India cannot be ruled out. In fact, with a system as corrupt , money, influence and muscle power will always call the shots. And as long as the women stays a puppet or pawn in the hands of her male relatives, she will always be manipulated and used. However, with this Act, there is atlast legal recognition of the scale of domestic violence that actually exists. This Act should also put an end to many of the misuses of the Anti Dowry Act . The protection of women from Domestic Violence Act, 2005 is heavily in favor of the women. On the contrary, we cannot also rule out the possibility of the Act being misused by the “so called aggrieved “ . who can easily manipulate it for her advantage which can be will supported by these statistical researches, the most alarming of it being that in case of  married couples, the male to female suicide ratio is 63:37, thus confirming that men are the ultimate targets. This Act should have ideally included stringent penal provisions for curtailing the instances of abuse and mishandling, but herein, instead various opportunities have been made

available which can ultimately lead to its grave misuse and can thus act as a catalyst for breaking homes. Thus, this Act does not contain any provisions for creating awareness or for strengthening and preserving family as an institution or even scope for improvement to “the husband” . It is eventually, the neo collectivist and neo socialist approach which is needed in the society that can essentially free both men and women from shackles of brutality and ultimately put them on an equal pedestal in all respects. Popular emphasis tended to be on women as the victims of domestic violence although with the rise of men‟s movement, and particularly men‟s right , there is now some advocacy for  men as victims, although the statistics concurring the number of male victims given by them are strongly contested by many groups active in research on or working in the field of domestic violence and “Violence Against Men”.

Men and Women are Violent There continues to be discussion about whether men are more abusive than women, whether men‟s abuse of women is worse than women‟s abuse of men and whether abused man should be provided resources similar to those available for abused women. What is often missing in such discussions is that being equal, both genders commit more or less equal aggression, the difference being is the form that aggression takes. Some psychologists claim makes tend to prefer physical aggression while women tend to prefer psychological aggression.

Protection of Women from Domestic Violence Among all the relationships, the relations inside the family are the thickest as well as the most informal. Even the most respectful, decent, dignified and gentle people outside will reveal their true nature inside the home. Thus, the chances of conflicts and fights are common inside the home, when compared to other places where a person mingles. This is more among husband and wife, as they are the persons who live together for the longest time in the life. This fight can even go to the extent of physical violence. In the Indian situation especially, where there is an unwritten custom that the male has the right even to beat his wife makes this situation more complicated. To what extent these fights and quarrels can be considered as offences? Though a crime generally, the fight or physical assault by the husband was not thus considered as a serious matter to be dealt with under a special criminal legislation. But due to the intervention of the human +rights organizations, and activists and international commitments, this has been materialized in India through a legislation , making even a verbal fight with the spouse an offence. The Protection of Women from Domestic Violence Act, 2005 is that legislation. This  paper is an analysis of the „concept of domestic violence‟, and a critical examination of this Act, in the lights of the international norms in this respect.

Women and Human Rights: International Developments

Though the Universal Declaration of Human Rights (UDHR) elaborated the principle of  universal inheritance, the principle of inalienability and the rule of law, the human rights as formulated in various international instruments are the rights of individuals against the state, respecting the western liberal philosophy which sees „right‟ as the duty of the state not to interfere with the freedoms and liberties of the individuals. Though these rights are common to men and women, there is a large catena of human rights inheriting in women which are unfortunately not recognized as human rights and are therefore neglected. Also, though the UDHR does not explicitly exclude women, it does not elaborate on how the rights set out in the declaration relate to women. It also does not talk about the private sphere, the area in which most violations of human rights generally occurs. Thus the “private- public distinction dichotomy” is mainly used by men to subordinate women. This being the most unfortunate part of women‟s rights, Justice Bhagawati says: “It is necessary to inject a gender perspective into the concept of human rights, for whatever violations of human right women sufferings are usually shaped by gender. The development of gender perspective in the human rights context facilitates an understanding of  how the exercise and enjoyment of human rights by women is adversely influenced by social construction of female and male riles in which women are always subjected to the subordinate position. It calls for reconstruction of realities between men and women that are not based on 1

inequality , domination and exploitation” . Domestic violence should be understood in the above context to provide and promote „social justice to women in areas of private and civil life‟, which were neglected in the traditional

human rights paradigm which concentrated on the violation of the human rights by the state mechanism. The traditional framework of human rights , or the mainstream theorists do not recognized wife assault and other forms of violence against women as human rights violation because private individuals and not the state are the perpetrators of such acts. The mainstream insistence on the strict division between the public and the private sphere and responsibility perhaps had created a limited concept of human rights understanding with reference to the 2

violation of rights against women as human rights . Thus from a gender perspective only state  perpetrated violence was considered as a violation of human rights, which excluded „domestic violence‟ leaving it under the notion that private sphere has nothing to do with the application of  human rights. So it can be conceived that the human rights practice has failed to adequately address the violations of human rights of women, especially domestic violence within the ambit 3

of violence against women . Before venturing into the area of domestic violence, it will be.

1.

Bhagawati J. keynote address delivered at the judicial colloquium for the senior judges of the Caribbean region, Georgetown, Guyana 14-17 April 1997.

2.

Right to be free from torture, has failed to encompass domestic violence or violence in the family or sexual harassment in the work place or genital mutilation because the focus of international notion of freedom from subjection to torture is public action by the state.

3.

This is mainly because Law had always been reluctant to interfere with the domestic affairs of human being.

fruitful to analysis the relevance of the general human rights instrument to the violence against women

General Human Rights Instruments and Their Relevance to Violence Against Women The general nature of human rights standard and the relevance to women is being examined in this context to show the limitations of the application of existing human rights to the domestic jurisdiction their by limiting the application of human rights to women : On 18

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December 1979, the United Nation‟s General assembly adopted the Convention on the Elimination of All Forms of Discrimination Against Women, which came into force on Sept 1981. The Convention affirmed the principle of equality by requesting the state parties to take all “appropriate measures, including legislation to ensure the full development an advancement of  women, for the purpose of guaranteeing them the exercise and enjoyment of human rights and 4

fundamental freedoms on a basis of equality with men” . Article 2(d) of the convention requests the state parties to adopt appropriate policy to eliminate discrimination against women and to undertake” to adopt appropriate legislative another measures, including sanction where 5

appropriate, prohibiting all discrimination against women” and to establish legal protection of  the rights of women. The Vienna Word Conference on Human Rights, 1993 acknowledged and affirmed the human rights of women as „inalienable, integral and indivisible part of human 4.

See convention of the Elimination of All Forms of Discrimination Against Women with Art, 3.

5.  Id., Article 2(b) clause (b).

rights‟ and thereby expanded the international human rights agenda to understand gener al 6

specific violations . The UN General Assembly in December 1993 adopted the Declaration on the Elimination of Violence Against women. This Convention encapsulated the general based 7

violence, sex discrimination and inequality in particular . In March 1994, the Special Rapporteur  on Violence Against Women, Its causes and consequences was agreed to be initiated as the first 8

gender specific human rights mechanism by UN commission on human rights . Again in 9

September 1994 the international conference on population and development in Cairo asserted the importance of right to help including reproductive choices for women. The Beijing Declaration

10

and platform for action was adopted in 1994 at the United Nations Fourth world

conference on women. The platform underline the human rights implications of violence against women, particularly in armed conflict and vulnerability of refuge women. Beijing Declaration at

6.

Vienna Declaration and Programe of Action , adopted by he World Conference on Human Rights, June 1993. UN Doc A/ CONF.157/24, part 33 para 18(1993), 32 ILM 166.

7.

Declaration on the Elimination of Violence Against Women, GA Res 48/104(1994), 1 I.H.R.R. 329.

8.

In 1997 the mandate of the special Rapporteur was renewed for a further period of three years .CHR Res 1997/44.

9.

Report on the International

Conference on Population and Development, UN Doc A/CONF.171?13

(1994). 10. Beijing Declaration and Platform for Action , in report of the Fourth World Conference on Women, Beijing, Sep. 1995, 35 I.L.M.40.

Fourth world Conference on Women , 1995 was the fourth world conference on woman at

Beijing. Its preamble expressed its determination to advance the goal of equality, development and peace for all women everywhere in the interest of all humanity. The Conference has addressed the issue of violence against women. The Beijing Declaration was followed by the formation of action plan known as Beijing Platform for Action(1996 - 2001). It also laid down the areas of concern for another five years(2002- 2006). It is the responsibility of the UN commission on the Status of Women to annually report to the UN of the plan of the action in each country. This convention, besides acknowledging the issue of domestic violence as a human rights issue also requested the state parties to revise laws and administrative practices to ensure equal rights for women . Thus there was a need to undertake the international obligations by the state parties to comply with the international standard through legislative interventions or by policy change. Finally, India reacted to the International Convention on the issue of violence against women by enacting „The Protection of Women From Domestic Violence Act „,2005.

Violence Against Women to Domestic Violence  –  The Indian Scenario Violence against women was identified and addressed even during the colonial period. ‟Violence‟ against women was addressed in the context of criminal law as well as in the civil law, in the post independent era. Besides this, various legislations

11

provided special protection

for the women which also indirectly addressed the issue of violence as a category by itself.

11. See Legal Service Authority Act, 1987.

Though „ domestic violence‟ as a category by itself was not particularly addressed, obviously the criminal and civil legislation in India are well developed to address the domestic violence

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indirectly. Apart from that the increasing awareness and the consciousness of women‟s right against „domestic violation‟ is a welcome development. This part of the study examines the legal provisions for protection against domestic violence and also enquires as to why there is a need to establish domestic violence as a special category. The term ‟domestic violence‟ was not adequately defined till the Domestic Violence Act was passed in 2005. But this does not mean that the issues of  „domestic violence was not 13

addressed . The forms of violence ranges from dowry death to minor assault or apprehension of  threat in the context of criminal law. The Indian Penal Code 1860, recognizes several offences relating to violence against women, some of which directly addressed the issue of domestic violence. They are in the form of culpable homicide,

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15

dowry death, female infanticide 17

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16

or

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forcing the wife to terminate pregnancy, abetment to commit suicide, hurt, grievous hurt, with

12. Udai veer, Crime Against Women, Anmol Publications Pvt. Ltd, New Delhi (2004), p 184. 13. National Policy for Women Empowerment, 2001, Article 2.1 reads: “Legal judicial system will be made more responsive and gender sensitive to women‟s needs, especially in cases of domestic violence and  personal assault”. 14. IPC, sec. 209. 15.  Id ., sec. 304 B. 16.  I d., section 313 – 316. 17.  I d., section 305, 306. 18.  I d., section 319. 19.  I d., section 320. 20

dangerous weapons, or means to extort property. restraint,

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or confinement,

23

24

21

Another category of offences like wrongful 25

or use of force , or assault, etc., are also specific offences that

could be used to protect women from domestic violence. But the domestic violence was not addressed as a category by itself under any civil or criminal law in India.

The Protection of Women From Domestic Violence Act 2005

The Protection of Women from Domestic Violence Bill was introduced in the Parliament 26

in March 2011 . But on account of various reasons, it took almost four years to receive the nod of the Parliament. Finally the Bill was passed by the Lok Sabha on 24 th

th

August, 2005 and by the

Rajya Sabha on 29 August, 2005 and received the assent of the President on 13

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September,

20.  I d., section 326. 21.  I d., section 327. 22.  I d., section 339. 23.  I d., section 340. 24.  I d., section 349. 25.  I d., section 351. 26. In March 2001 the bill was tabled in the parliament and was referred to the Standing Committee on Human Resource Development. Then the resultant draft legislation was circulated among various ministries in 2003.

2005. It 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 for matters connected therewith or incidental thereto” the Act is in the nature of civil law which

is intended to protect the women by being victims of domestic violence and to prevent the occurrence of domestic violence in the society. The Act entrusts the duty upon the state to give publicity, sensitization and awareness training on the issue addressed in the Act to police officers, members of judicial services etc.,

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Section 3 of the Act defines the term domestic violence very widely. Besides harm or injury or anything that endangers the health, safety, life, limb or well being of the aggrieved person, it include abuse, threat of abuse, physical abuse ,verbal and emotional abuse, economic abuse etc., and explanation is provided to the effect that overall facts and circumstances of the case shall be taken into consideration to ascertain the conduct of the respondent to constitute 28

domestic violence .Secton8 of the Act empowers the state to appoint protection officers in each

27. See Poornima Advani “Curbing Domestic Violence: Inching Forward”, The Hindu, June 27,2005. 28. Section 3 reads: Definition of domestic violence -For the purposes of this Act, any omission or commission or conduct of the respondent shall constitute domestic violence in case it  –  (a) harms or injuries 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 and economic abuse; or (b) harasses, harms, injuries, 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 (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); or (d) otherwise injuries or causes harm, whether physical or mental, to the aggrieved person.

district, as it deems necessary. Act emphasizes that the protection officers shall be as far as possible women with prescribed qualification and experience as laid down by the central government and the terms and conditions of the service should be regulated by prescribed rules. Any person who has reason to believe that an Act of domestic violence is likely to happen can

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inform the protection officer in good faith . The Act also prescribes the powers and duties of  protection officers, service providers etc. Section lays down the duties of police officers, protection officers, service providers and Magistrates who have received any complaint on domestic violence. They have to inform the aggrieved person of the right

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to make application

for one or more of the reliefs mentioned under the Act such as the availability of services of  service providers and protection officers and, her right to avail free legal services or the right to

29. See section 4 of the Act, Clause 2 also lays down that the person who is providing information in good faith shall be exempted from civil or criminal liability. 30. See section 5: Duties of police officers, service providers and magistrate: A police officer, protection officer, service providers or magistrates who has received a complaint of domestic violence or is otherwise present at the place of an incident of domestic violence or when the incident of the domestic violence is reported to him , shall inform the aggrieved person (a)of her right to make application for obtaining a relief  by way of a protection order, an order for monetary relief , the custody order, a residence order, a compensation order or more than one such order under this Act; (b) of the availability of services of service providers; (c) of the availability of the services of the protection officers; (d) of her right to free legal services under a Legal Services Authorities Act, 1987(39 of 1 987); (e) of her right to file a complaint under Sec 498A of the Indian Penal Code (45 of 1860), wherever relevant; Provided that nothing in this Act shall be construed in any manner as to relieve a police officer from his duty to proceed in accordance with law upon receipt of information as to the co mmission of a cognizable offence.

file a complaint under Sec 498A of IPC. Further the act seeks to provide shelter home to the aggrieved person at the request of aggrieved person or at the request of the protection officer on behalf of the aggrieved person and imposes a duty on medical officers to provide appropriate 31

medical facility at the request of the concerned person . Section 9 of the Act imposes duties and functions upon the protection officers to assist the Magistrates

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to discharge the functions under

the Act by reporting the domestic incident to the Magistrate, to file application to issue a protection order on behalf of the aggrieved person, to provide free legal aid, to maintain a list of  service providers and to make sure that the monetary relief is being given in case of bodily injury and to perform such other duties and functions laid down under the rules made by the Central Government. Section 10 of the Act legalizes the role of civil society (voluntary organizations ) to positively interfere with the issue of domestic violence .It provides for the registration of  voluntary organizations under the Government, further enumerate the powers and immunities of  the service providers. The Section provides for the registration of voluntary organizations which are formed with a view to protect the interest of women through lawful means to provide legal aid, medical, financial or other assistance. The powers of the service provider include the power

31. Sections 6 and 7. 32. Section 2 (i) of the Act defines the term “Magistrate” to mean the Judicial Magistrate of the first class , or  as the case may be, the Metropolitan Magistrate, exercising jurisdiction under the Code of Criminal Procedure, 1973 (2 of 1974) in the area where the aggrieved person resides temporarily or otherwise or the respondent resides or the domestic violence is alleged to have taken place.

to record incident report, medical examination of the aggrieved person and to provide shelter in a shelter home if required. There is also immunity to service providers from suit, prosecution and legal proceedings for their act in good faith. Chapter IV of the Act stipulates special procedure for obtaining various reliefs mentioned in the Act. Under Section 12, an aggrieved person or a protection officer or any other person on

behalf of the aggrieved person can file application before the Magistrate for one or more reliefs

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provided under the Act and Magistrate should take into consideration the domestic incident report before passing any order. Clause (3) and (4) of section 12 deals with speedy disposal of  cases. It stipulates that the Magistrate shall fix the date of hearing within three days from the receipt of application to the court and should dispose of the same within a date of sixty days from the date of its first hearing. The procedure initiated under section 12 is continued by serving notice by the Magistrate to the protection officer, to the respondent or to any other person within a period of two days or such reasonable as may be allowed by the Magistrate. The procedure initiated under Section 12 is continued by serving notice by the Magistrate to the protection officer, to the respondent or any other person within a period of two days or such reasonable time as may be followed by the Magistrate. The declaration of service of notice to the protection officer is considered as a proof of serving notice, unless the contrary is proved. As per Section 14 of the Act the Magistrate is authorized to initiate counseling at any stage of the proceedings and

33. Section 12(2) read: “the relief sought for under Sub-Section (1) may include a relief for issuance of an order for payment of compensation or damages with out prejudice, to the right of such person to institute a suit for compensation or damages for the injuries caused by the acts of domestic violence committed  by the respondent;”

that the Magistrate can seek the assistance of any “welfare expert” preferably a women, including a person engaged in promoting family welfare. Section 16 of the Act provides for the proceedings to be held in camera, at the discretion of the Magistrate. The reliefs envisaged under the Act are mainly of five type including protection orders, residence orders , monetary reliefs, custody orders, and compensation orders.

Section 17 of the Act provides that irrespective of any contrary provisions in any other law, every women in a domestic relationship

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shall have the right to reside in a shared household

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and the aggrieved person shall not be evicted from the shared household by the respondent except in accordance with the procedure established by law. This is a landmark development for the protection of the women against domestic violence. The concerned magistrate after being given the opportunities for both the parties to be heard, and on being  prima-facie satisfied that domestic violence has taken place or is likely to take place, can pass protection orders preventing

34. Section 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. 35. Section 2(s) of the Act defines the shared household: “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 household whether 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 otr the aggrieved person has any right, title or interest in the shared household”.

the commission of domestic violence and prohibited any person from aiding, abetting or committing an act of domestic violence or any other specified act like entering the place of  employment of the aggrieved person or to the school if the aggrieved person is a child or to any other place frequented by the aggrieved person. The order can also be in the nature of preventing the abuser from attempting to communicate with the aggrieved person through any mode of 

communication, or alienating or isolating any tangible or intangible assets jointly held and enjoyed by both the parties, including her Stridhan and causing violence to the abused, the dependents or other relatives or others who provide her assistance from the domestic violence or by committing any other act as specified in the protection order. The

resident order secure the right of the women to reside in her martial home

irrespective of whether she has a title over the household or not. Such order is issued by the magistrate under section 19 of the Act upon the fact that the domestic violence has taken place and that there is a need to restrain the respondent from dispossessing or disturbing the possession of aggrieved person from the shared household irrespective of the fact that the respondent has a legal or equitable interest in the shared household. The magistrate can also direct the respondent to vacate from the shared household, and further restraint the respondent or his relatives from entering into the portion where the aggrieved person resides. He can also be restraint from alienating or disposing off the shared household. Through the order the respondent can be restraint from renouncing his rights in the shared household except with the leave of the magistrate. It is also provided that an order shall not be passed against any women to remove her from the shared household. Sub clause (2) of section 20 empowers the magistrate to impose any other additional condition and to pass any appropriate order for the safety of the aggrieved person. As per sub clause (5), the court may direct the officer in charge of the police station to give protection to the aggrieved person. Magistrate may impose obligation to the respondent for the discharge of rent and other payments in accordance with the financial needs and resources of  the parties. Under section 20 the magistrate is empowered to give monetary relief to meet the expenses or the losses suffered by the aggrieved person or the child of the aggrieved person due to domestic violence. Such relief includes the loss of earnings, the medical expenses, the loss

caused due to the destruction, damage or removal of any property from the control, and maintenance for the aggrieved person as well as her children. The monetary relief granted shall be adequate, fair and reasonable and consistent in accordance with the accustomed living standard of the aggrieved party. Under section 21 of the Act the magistrate at any stage of the hearing of the application for protection order or for any other relief under the Act, grant temporary custody of any child or children to the aggrieved person or to the person making an application on her behalf and can specify the arrangement for visit of such child by the respondent. The Magistrate may refuse to allow such visit if it is against the interest of the child. The

Magistrate can also pass an order directing the respondent to pay compensation and

damages for the injuries including for the mental torture and emotional distrust caused to her by domestic violence, upon an application made by the aggrieved person.

Domestic Violence Act: A Critique The Act indeed is a sigh of relief to hundreds of women who suffer from domestic violence. The purpose of the Act is to prevent domestic violence and provide protection to the aggrieved person, rather than punishing the offender after the commission of the offence and is in the nature of civil law. The Act clearly defines the term domestic violence very widely and provide wider protection and coverage extending to mothers, sisters, widows, single women etc. the term „aggrieved person‟ if read with clause (f) of section 2 will extent protection to the “relationship in the nature of marriage” also, which means protection can be given to the thousands of unmarried couples in this country. The Act invoked different kinds of reliefs to address the issue of domestic violence. The residence order, or the right of the women to reside in their martial home or the shared household and the protection orders are specifically

addressing the particular issues faced by the women. The Act also provides for a speedy

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mechanism to provide relief in case of domestic violence. One lacuna in the Act is that it does not allow a „resident order‟ to be passed against a women under section 19 of the Act. It is to be understood that the women themselves are mostly the perpetrators of domestic violence both in terms of aiding and abetting the commission of the offence. Also that is allows a women relative of the husband to file a complaint against the wife or live- in partner, which might lead to gross misuse of the Act. Also, the Act cannot do anything to prevent domestic violence being taken place, and to ensure a peaceful domestic atmosphere. It can only be used as a tool for any of the spouses to take revenge against the other for having beaten him or her. Also, there are greater chances of misuse of the provisions of this Act, which may lead to the destruction of many families in much easier way that before. There are also difficulties in proving the ingredients of the offence such as verbal abuse, mental abuse etc. So, unless the enforcement authorities and the judiciary are sensitive to human rights (not just women‟s right), this Act will prove to be an anti-domestic Act.

36. Section 12(5) reads that the magistrate shall endeavor to dispose of every application within a period of sixty days from the date of its first hearing.

Laws often usher social change. The change that law hopes to bring in maybe elusive or be adverse in real situations. The protection of women from domestic violence act is 42

criticized on the ground that it strikes at the very root of family and marriage, which has been

from time immemorial considered sacrosanct. It destroys the oneness felt by members of family, and the drafters were oblivious of culture and heritage of mother India where family life is treated as a gift of The Divine . it is criticized on the score that in the grave of providing protection the legislation in fact strikes at the very institution of marriage by promoting intolerance and encouraging unnecessary litigation even for petty domestic disputes. The law is based on a totally wrong notion and assumes men as the sole perpetrators of domestic violence. This is all together the wrong impression and only confirms the gender bias in favor of women created by the law. Going of such sweeping rights to women while with holding protection to male victims tantamount to systematic legal victimization of men. The law is wholly gender specific and rules out any possibility of domestic violence against man. The law confers rights on a women without imposing any liability, while a man is overburdened with discriminative liabilities with total denial of rights. Get another criticism leveled against the act is that it recognizes non-legal relationship  by bringing with in its ambit relationship „ in the nature of marriage‟. It should be noted that such an inclusion has been made to extend protection to women to form such relationships. In the 21

st

42. K.P.Radhakrishna Menon, “The Protection of Women From Domestic Violence Act, 2005”2 K.L.T. 40(2007);P.Rajen ,” The Protection of Women From Domestic Violence Act, 2005, Boon or Bane? , “ 7 K.L.T. 37(2007); Sindu Gopalakrishnan, “ Enactment of New Laws In Favor Of Women And Its Misuse,” 3 K.L.T. 31(2007); R.K.Gauva, “Domestic Violence Law – A Recipe for Disaster,”8S.C.C. 25(2007)

century world human beings run after luxuries and there is growing tendency to get westernized and wreak the sanctity of marriage. These sorts of relations are often seen know-a-days. To them

their exists no support since all the protective provisions are available for women who are legally married. Another objection is that the act made only violation of protection orders and offence. But it is wrong to say so, for rule 15 of protection if women from domestic violence rules specifically states that any resistances to enforcement of orders of court by respondent or any person deliberately acting on his behalf shall be a cognizable offence

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. The significant fact is

that to provide speedy relief, the Act stipulates time limit. But difficulty is likely to arise because rate of filing cases as increases and courts will find it difficult to deal with other cases. So it is necessary to provide special or new court for remedial measures under the Act. Otherwise flux of  44

new litigation will jeopardize the work of courts . The slack drafting of this law will allow cunning and unscrupulous women to harass her male relatives. Moreover any such frivolous claims will be treated as words of god or gospel of  truth by virtue of the law. This has virtually empowered all women to harass men at their will. The law not only recognizes but also sanctions apprehension no matter insignificant is the issue involved. The mere belief of a person, even a stranger, will be sufficient for reporting the matter to the protection officer. A bizarre aspect if the Act is that it does not distinguish between actual

43.Rrule 15 of the PWDV Rules, 2006. 44.V.K.Babu Prakesh, “Marching Women Under The Domestic Violence Act,” 3 K.L.T. 63(2007)

abuse, and treat of abuse and gives equal weight age to likely hood of abuse. The terms „emotional abuse, insults and verbal abuse‟, enshrined in the Act are extremely relative and

subjective, often depending on one‟s mind set and shockingly, the husband does not have any recalls in case of any abuse by the wife. Unlike other women- protection laws, the Act almost gives a legal sanction to extortion of money by women under the guise, of economic abuse. Refusal to pay any some of money for whatsoever reason will attract the provisions of the law. Nonpayment of rental related to the shared household will also constitute economic abuse even if  the husband himself is devoid of sufficient resources or even if he is in jail. Now even an unchaste wife cannot be thrown out of house as she can easily threaten her husband or in-laws of  false domestic violence charges as the Act expressed mentions that in case of absence of any other evidence, her sole testimony shall be relied upon by the Magistrate in deciding the existence and extent of violence. The Act almost gives a legal sanction to any relationships, which is not at all socially acceptable like the live-in relationship. The respondent is totally deprived of his legitimate rights over his property as he cannot alienate or dispose if an order is passed under the Act. On the contrary there is an added liability on his part to arrange for an alternate accommodation or pay the rent for the same. Another certain home-breaking implication of the Act is that it bars the husband from even asking, leave apart pressurizing their wife‟s for sex. Another perturbing feature is that as a protective measure or more so a biased feature conferred by this Act, in the form of prohibition of any sort of  communication to be made by the husband if there is a prima facie case. And unusual oddity in this enactment is that in magistrate has been vested with unaccountable power as he is invested with the responsibility to take cognizance of the case and also for executing his own orders in favor of the aggrieved women even without being approached for their execution. An additional disturbing aspect is that the magistrate trying the case is required to evaluate not the individual incidence of violence, but the overall circumstances as well. The major inappropriate implication

would be that it would play down the chances of reconciliation in future. On the other hand the Act punishes a man for forcing her wife to leave job while on the other it provides maintenance to the very same wife. But the law does not provide for any such remedy to a male in any similar circumstance. All the provisions of this Act, however, do not serve the purpose of effective implementation as shown by the above examples, sometimes due to a lack of resources or due to extraneous factors. Section 12(4), for example, is a laudable provision, which makes it mandatory for the magistrate to hear a case within three days of the complaint being filed. The idea of prompt relief is carried on in section 12(5), which directs the magistrates to finish hearing the case within six months of it reaching port. However, the overcrowding of courts makes it difficult to see if they can be practically realized. A further criticism of the Act is with respect to section 14, which may prescribe counseling for either of the parties, and delay proceedings up to two months. As has been discussed earlier, redressal of domestic violence has always tended to focus on conciliation between the parties, even within the criminal justice system. This is due to the judicial perceptions regarding the importance of the preserving the family unit. In recognition of the fact, a provision such as section 14 can be counterproductive in two ways. First, it might jeopardize speedy disposal of the case and secondly, it may also convince the aggrieved to continue in that situation without taking any further action. The act provides for appointment of protection officers. The institution of protection officers is a useful one, emphasizing the need for social intervention in order to prevent domestic violence. The problem, however, lies with the resources required for the creation of such a rung of officers. See, “The Protection of Women from Domestic Violence Act,2005-Was it work with effort?”.

A lot of anomalies have been pointed out regarding the Act. It is true that the Act is heavily in favor of women for it is well known that the object of the act is to confer protection on women. Admitting that chances of misuse exists, that never can be a reason for denigrating the legislation which is aimed at ensuring peace in the home by giving a close check upon each and every abuse being faced by the women in home. Misuse of law is general. To check it what law could provide is tom insert stringent penal provisions. “All Laws Are Imperfect even If Made By A Committee of A rch Angels”. This statement of Bernad Shaw makes it a point that even if some flaws exist, laws need to be observed for it can be rectified by subsequent changes. Too many people think the law should be enforced and not enough things it should be observed. This has resulted in augmentation of crimes and violation of human rights.