The Domestic Violence Act - Fundamental Rights

The Domestic Violence Act - Fundamental rights perspective Dome Domest stic ic viol violen ence ce is sadl sadly y a reali reality ty in Indi Indian an soci societ ety, y, a trui truism sm.. In the the Indi Indian an  patriarchal setup, it became an acceptable practice to abuse women. There may be many reasons for the occurrence occurrence of domestic domestic violence. violence. From a feminist feminist standpoint standpoint,, it could be said that the occurrence of domestic violence against women arises out of the  patriarchal setup, the stereotyping of gender roles and the distribution of power, real or   perceived, in society. Following such ideology, men are believed to be stronger than women and more powerful. They control women and their lives and as a result of this  power play, they may m ay hurt women with impunity. The role of the woman is to accept her ‘fate’ and the violence employed against her meekly. For long, the fairer sex has suffered at the hands of men, the exploitation ranges from physical to intangible abuse like mental and psychological torture. Women have been treated as child bearing machines, and if I may, then preferably male child bearing machines, push-over, to nothing but animals at the hands of men. Domestic violence is one of the gravest and the most pervasive human rights violation. For too long now, women have accepted it as their destiny or have just acquiescence their right to raise their voice, perhaps,  because of the justice system or the lack of it or because they are vulnerable, scared of   being ostracized by their own because domestic violence still r emains a taboo for most m ost women who suffer from it or for other reasons best known to them. But not any more! Women gear up-take control because of the domestic violence act, 2005. The Protection of Women from Domestic Violence Act (or the Domestic Violence Act) is a laudable piece of legislation that was enacted in 2005 to tackle this problem. The Act in theory goes a long way towards protection of women in the domestic setup. It is the the firs firstt subs substa tant ntia iall step step in the the dire direct ctio ion n of vanq vanqui uish shin ing g the the ques questi tion onab able le  public/private distinction traditionally maintained in the law, which has been challenged by feminists time and again. Admittedly, women could earlier approach the Courts under the Indian Penal Code (IPC) in cases of domestic violence. However, the kinds of domestic violence contemplated by this Act, and the victims recognised by it, make it more expansive in scope than the IPC. The IPC never used the term domestic violen violence ce to refer refer to this this object objection ionabl ablee practi practice. ce. In fact, fact, the only only simila similarr class class of  offences addressed by the IPC dealt with cruelty to married women. All other instances of domestic violence within the household had to be dealt with under the offences that the respective acts of  violence constituted under the IPC without any regard to the gender of the victim. This  posed a problem especially where the victims were children or women who were dependant on the assailant. In fact, even where the victim was the wife of the assailant and could approach the Courts under S.498A of the IPC, she would presumably have

to move out of her matrimonial home to ensure her safety or face further violence as retaliation. There was no measure in place to allow her to continue staying in her  matrimonial home and yet raise her voice against the violence perpetrated against her. This, together with many other problems faced by women in the household, prompted this enactment. This commentary focuses on the constitutional perspectives of this  progressive legislation. Important Provisions The Act, in a bold break from prior legislations, gives a very expansive definition to the term “domestic violence”, a term hitherto not even used in legal parlance. Domestic violence is defined in a comprehensive way in S.3 of the Act, comprising physical, mental, verbal, emotional, sexual and economic abuse, harassment for dowry, acts of  threatening to abuse the victim or any other person related to her.

An important addition to the law ensures 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. 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. This piece of legislation, in my view has been long over due. It is a comprehensive law and addresses all issues related to women. It is for the first time that an act has been made to address women's issues in such detail. The Act is an extremely progressive one not only because it recognizes women who are in a live in relationship but also extends protection to other women in the household, including sisters and mothers thus the Act includes relations of consanguinity, marriage, or through relationships in the nature of marriage, adoption, or joint family thus, 'domestic relationships' are not restricted to the marital context alone. In fact the Act has given a new dimension to the word abuse because unlike the primitive notion abuse includes actual abuse or threat of  abuse, whether physical, sexual, verbal, economic and harassment by way of dowry demands and thus, under the new law; The law will cover those women who are or have been in a relationship where both  parties have lived together in a shared household, and are related by marriage or  adoption. Preventing one's wife from taking up a job or forcing her to leave job are also

under the purview of the Act. One of the most important features of the Act is that it also provides a woman a right to reside in the matrimonial and shared household, whether or not she has any title in the household. Husbands or live-in partners who would be guilty of domestic violence can be put behind bars for a year and fined Rs 20,000 and all crimes in the Domestic Violence Act are non-bailable. In addition to  physical violence of beating, slapping, hitting, kicking and pushing, the Act also covers sexual violence like forced intercourse, forcing his wife or mate to look at pornography or any other obscene pictures or material and child sexual abuse. The new law also addresses sexual abuse of children and forcing girls to marry against their wishes. This certainly proves that the new Act has been formed keeping the current relationship culture in India and the irregularities in the previous Domestic Violence Laws in mind. The Act has also defined Physical Violence very comprehensively, as: Any kind of   bodily harm or injury, A threat of bodily harm, Beating, slapping and hitting. Thus,  physical violence is defined as any act or conduct which is of such a nature as to cause  bodily pain, harm, or danger to life, limb, or health, or an act that impairs the health or  development of the person aggrieved, or that includes assault, criminal intimidation and criminal force. But violence against women is not always physical. For the first time, the law has expanded the definition to include sexual, verbal and economic violence. Under the law, Sexual Violence will include: Forced sexual encounter, Forcing a woman to look at pornography or any obscene pictures, Any act of sexual nature to abuse, humiliate or degrade a woman's' integrity. The new law is also tough on men who subject women to name calling or verbal abuse. While Verbal Violence is often trivialized as unimportant, observers say it can damage a woman's self-esteem. The Act defines Verbal Violence as: Name calling, Any kind of  accusation on a woman's character or conduct, Insults for not bringing dowry, Preventing a woman from marrying a person of her choice, Any form of threat or  insults for not producing a male child. Another significant step has been to recognize Economic Violence. Under the Act, Economic Violence is: Not providing money, food, clothes, medicines, causing hindrance to employment opportunities, forcing a woman to vacate her house, Not  paying rent. The Act thus deals with forms of abuse that were either not addressed earlier, or that were addressed in ways not as broad as done here. For instance, it includes in its ambit sexual abuse like marital rape which, though excluded under the IPC, can now be legally recognized as a form of abuse under the definition of sexual abuse in this Act. The definition also encompasses claims for compensation arising out of domestic violence and includes maintenance similar to that provided for under S.125 of the Code of Criminal Procedure (CrPC). Nevertheless, the claim for compensation is

not limited to maintenance as allowed by that provision. It is noteworthy that the maintenance available under this section must be in correspondence with the lifestyle of the aggrieved party. Lastly, the Act identifies emotional abuse as a form of domestic violence, including insults on account of the victim’s not having any children or male children. Constitutional Perspective 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. Protection of Women and Fundamental Rights The Statement of Objects and Reasons declares that the Act was being passed keeping in view the fundamental rights guaranteed under Articles 14, 15 and 21. Article 21 confers the right to life and liberty in negative terms, stating that it may not be taken away except by procedure established by law, which is required, as a result of judicial decisions, to be fair, just and reasonable. The right to life has been held to include the following rights (which are reflected in the Act), among others:

1. The right to be free of violence: In Francis Coralie Mullin v. Union Territory Delhi, Administrator, and the Supreme Court stated, any act which damages or injures or interferes with the use of any limb or faculty of a person, either permanently or even temporarily, would be within the inhibition of Article 21.This right is incorporated in the Act through the definition of physical abuse, which constitutes domestic violence (and is hence punishable under the Act). Physical abuse is said to consist of acts or  conduct of such nature that they cause bodily pain, harm, or danger to life, limb or  health, or impair the health or development of the aggrieved person . Apart from this, the Act also includes similar acts of physical violence and certain acts of physical violence as envisaged in the Indian Penal Code within the definition of domestic violence. By adoption of such an expansive definition, the Act protects the right of  women against violence. 2. The right to dignity : In Ahmedabad Municipal Corporation v. Nawab Khan Gulab Khan , the Supreme Court emphasised the fact that the right to life included in its ambit the right to live with human dignity, basing its opinion on a host of cases that had been decided in favour of this proposition. The right to dignity would include the right against being subjected to humiliating sexual acts. It would also include the right

against being insulted. These two facets of the right to life find mention under the definitions of sexual abuse and emotional abuse, respectively. A praiseworthy aspect of  the legislation is the very conception of emotional abuse as a form of domestic violence. The recognition of sexual abuse of the wife by the husband as a form of  violation to the person is creditable, especially as such sexual abuse is not recognised  by the IPC as an offence. These acts would fall within the confines of domestic violence as envisaged by the Act, though the definition would not be limited to it. 3. The right to shelter: In Chameli Singh v. State of U.P. , it was held that the right to life would include the right to shelter, distinguishing the matter at hand from Gauri Shankar v. Union of India where the question had related to eviction of a tenant under  a statute. Ss. 6 and 17 of the Domestic Violence Act reinforce this right. Under S.6, it is a duty of the Protection Officer to provide the aggrieved party accommodation where the party has no place of accommodation, on request by such party or otherwise. Under S.17, the party’s right to continue staying in the shared household is protected. These provisions thereby enable women to use the various protections given to them without any fear of being left homeless. Article 14 contains the equal protection clause. It affirms equality before the law and the equal protection of the laws. Article 14 prohibits class legislation , but permits classification for legislative purposes. A law does not become unconstitutional simply  because it applies to one set of persons and not another. Where a law effects a classification and is challenged as being violative of this Article, the law may be declared valid if it satisfies the following two conditions: 1. The classification must be  based on some intelligible differentia,2. There must be a rational nexus between this differentia and the object sought to be achieved by the law. As a result of the ruling in cases such as Royappa v. State of Tamil Nadu , any law that is arbitrary is considered violative of Article 14 as well. This provision is significant in putting a stop to arbitrariness in the exercise of State power and also in ensuring that no citizen is subjected to any discrimination. At the same time, it preserves the State’s power to legislate for a specific category of people. Article 15 disallows discrimination on the grounds of religion, caste, sex, race, etc., but  permits the State to make special provisions for certain classes of persons, including women and children. The Domestic Violence Act promotes the rights of women guaranteed under Articles 14 and 15. Domestic violence is one among several factors that hinder women in their   progress, and this Act seeks to protect them from this evil. It indeed effects a classification between women and men, protecting only women from domestic

violence, but this classification is founded on an intelligible differential, namely, gender, and also has a rational nexus with the object of the Act. Further, the Act is far  from arbitrary, in that it is a well-thought and necessary attempt to curtail domestic violence and eventually vanquish it. It is to be remembered that it is generally women who are the victims of domestic violence, and not men. At this stage, it is also essential to keep in mind Article 15(3) which empowers the State to make legislations like this for the benefit of women, thus creating an exception in their favour against the operation of Article 15(1). While saying that the Act is protected by Article 15(3) from being considered discriminatory, it would help to recollect that this provision creates an exception in favour of women and children, and thus could be made use of to justify the extension of the Act to male children as well. Indeed, it would seem logical to do so. It is, however, opined that it is too early to predict the usefulness of this legislations to its target beneficiaries and the society as a whole. It needs to be seen whether the  practicality of the Act has been ensured by the legislature and also the responsibility of  implementation lies in the hands of the executive which will be the actual scale for  measuring the effectiveness of this Act. Whether or not the act will be mis-used or not only time will tell for there cannot be any perceptible change in women's status overnight. It will take at least a decade before things change This bill will provide them a safeguard and a sort of sword in their hand so that they will not be seen as an animal, or a shoe that you can wear anytime and throw anytime  but at least some women would benefit which would set a precedent for others. It would be violative of the equality clause as also it would be discrimination on the  basis of caste. Frowning upon this observation the Supreme Court stated, “In our  opinion, the learned judge failed to appreciate that part III of the Constitution does not touch upon the personal laws of the parties. In applying the personal laws of the  parties, he (the High Court judge) could not introduce his own concepts of modern times but should have enforced the law as derived from recognized and authoritative sources of Hindu laws, i.e. Smritis and commentaries referred to, as interpreted in the  judgments of various High Courts, except where such law is altered by any usage or  custom or abrogated by statute." Reynold Rajamani v. Union of India (1982 2 SCC 474).The excerpts of this judgment on which reliance was placed upon by the Supreme Court in the AWAG case pertain to prayers by the parties to increase the grounds available for divorce under the Indian Divorce Act. It was also argued in that Petition that divorce by mutual consent should be available even under the Indian Divorce Act. It was in this context that the Supreme Court observed that adding provisions to a

Statute was a legislative act. The case did not deal with challenge to personal laws as  being discriminatory to women. Pannalal Pitti v. State of A.P. (1996 2 SCC 498). This case dealt with validity of   provisions of A.P. Charitable Hindu Religious and Endowments Act, 1987 and the argument was that laws should be made which are uniformly applicable to all religious or charitable endowments run by persons professing all religions. It was in this context that the Supreme Court observed that in a pluralistic society like ours making uniform laws cutting across religions could only be achieved in a phased manner and it was inappropriate to think "all laws have to be made uniformly applicable to all people in one go." Anil Kumar Mhasi v. Union of India (1994 5 SCC 704). In this case, additional grounds given to a woman for claiming divorce under the Indian Divorce Act were challenged as being discriminatory towards men. The challenge was rebuffed by holding that women did require special protection. What is significant about this  judgment is that the Supreme Court did test the validity of some sections of the Indian Divorce Act (a personal law for Christians) on the touch stone of fundamental rights  but on merits found the challenge to be unsustainable. The approach of the Supreme Court is clearly wrong and flies in the face of the Constitution. The Contrary View, on the other hand, in the following decisions the Supreme Court has tested aspects of   personal laws on the touchstone of fundamental rights. Madhu Kishwar V. State of Bihar  (1996 5 SCC 125). Certain provisions of  Chotanagpur Tenancy Act, 1908 were challenged as being discriminatory towards women. While Court in this case refused to declare tribal customs en masse offending fundamental rights it kept the doors of such challenge open by holding, "..under the circumstances it is not desirable to declare the customs of tribal inhabitants as offending Articles 14, 15 and 21 of the Constitution and each case must be examined when full facts are placed before the court."In this case, the Court went into the Constitutionality of the law and read down the provisions so as to bring them in line with womens' right to livelihood under Article 21 of the Constitution. Githa Hariharan v. Reserve Bank of India (1999 2 SCC 228) a three judge Bench of the Supreme Court was considering the Constitutional validity of S. 6 of the Hindu Minority and Guardianship Act. The challenge was on the basis that the section discriminates against women, as the father is the natural guardian of a minor and not the mother. The Court did not reject the Petition on the ground that it could not go into Constitutional validity of personal law. Instead it read down S.6 so as to bring it in consonance with Articles 14 and 15. The Court observed in Para 9, Is that the correct way of understanding the section and does the word 'after' in the section only mean

'after the lifetime'? If this question is answered in the affirmative, the section has to be struck down as unconstitutional as it undoubtedly violates gender equality, one of the  basic principles of our Constitution. The Hindu Maintenance and Guardianship Act came into force in 1956, i.e. six years after the Constitution. "Similarly S. 19(b) of the Guardians and Wards Act would also have to be construed in the same manner in which we have construed Section 6(a) The Hindu Maintenance and Guardianship Act ." Of course, the decision is not very satisfactory as the Constitutional mandate required the Supreme Court to hold that irrespective of whether the father was unfit or  not the mother should also be given equal rights as a natural guardian. Failure of the Act : The Act could play a stellar role in protection of women’s rights in the household and in guarding them from domestic violence. In the very first instance, a recognition of domestic violence as something unacceptable, where it has  become yet another social practice, is necessary and indeed, commendable in a  patriarchal society. Having recognised the rights of women and the violation of these rights, the next step taken is providing innovative and efficacious remedies to enforce the same. The conceptualization of the Act thus far is admirable.

However, one thing that the writers feel is amiss in the Act is the fact that it brushes aside male children. Though there are interpretations to the contrary, it is the opinion of the writers that the Act does not extend its protection to male children. Firstly, an aggrieved person as defined by the Act is a woman who is, or has been in a domestic relationship with the respondent. While the Act does define a child as any person  below the age of eighteen years, the definition of domestic violence itself refers at all stages only to an aggrieved person and not to a child; the only relevant place in which a child is mentioned is S.18(c), where it is stated that a Magistrate may pass a protection order restraining the respondent from entering the school of the child where the aggrieved person is a child. It is the opinion of the writers that this in itself is not sufficient to construe the Act as applicable to male children as well. Arguably, it could be said that the Act was passed to cater to the needs of women and not boys. After all, the very title of the Act indicates that it has been enacted to protect the rights of women. Yet, it must be kept in mind that domestic violence, though  predominantly faced by women, be they wives, mothers, sisters or daughters, is also aimed against male children at times. It seems a poor excuse to say that male children should not be provided easily accessible relief from domestic violence simply because of their gender. Even if other forms of violence could be adequately addressed by the IPC (though this hardly seems the case), it is a fact that the sexual abuse of male children cannot be redressed in any apposite manner by it. Reference may be had to the Sakshi case , and the subsequent 172nd Law Commission report, where it was argued,

among other things, that the offence of rape as addressed in the IPC be defined in gender-neutral terms, so that the protection could be extended to male children as well. This was necessary keeping in mind the increased and increasing instances of sexual abuse of children, male and female. Once it is acceded that male children are affected as much by sexual abuse by female children, it must be accepted that they need to be  protected from such abuse within the “private” sphere too. On the face of it, there seems to be no concrete reason for denying male children protection from domestic violence. Conclusion The Act, by and large, is a valuable piece of legislation. Its shortcomings do not, on final analysis, blot out the immense benefit the Act could be of to women. A good thing about the Act is the fact that it deals with domestic violence regardless of the religion of the parties, as many a time wrongs are perpetrated using the protection afforded by personal laws. It is thus secular in outlook in protecting women’s rights. It also does take up for consideration child sexual abuse, though in a limited sense (male children being excluded from its purview), at a time when the practice has become rampant. Further consider it desirable to extend the Act and allow its application to male children who are also affected by domestic violence, considering the nature of the  practice, and recommend such an extension.

"Article 1, (1) assures right to development an inalienable human right, by virtue of  which every person and all people are entitled to participate in contribute to, and enjoy economic, social, cultural and political development in which all human rights and fundamental freedoms can be fully realized. Article 6 (1) obligates the State to observance of all human rights and fundamental freedoms for all without any discrimination as to race, sex, language or religion. Sub- article (2) rejoins that ... equal attention and urgent consideration should be Sub-Article (2) enjoins that ... equal attention and urgent consideration should be given to implement, promotion and  protection of civil, political, economic, social and political rights. Sub-article (3) thereof enjoins that: - “State should take steps to eliminate obstacle to development, resulting from failure to observe civil and political rights as well as economic, social and economic rights. Article 8 casts duty on the State to undertake...necessary measures for the realization of right to development and ensure, inter alia, equality of  opportunity for all in their access to basis resources ... and distribution of income. "The human rights for women, including girl child are, therefore, inalienable, integral and indivisible part of universal human rights. The full development of personality and fundamental freedoms and equal participation by women in political, social, economic and cultural life are concomitants for national development, social and family stability

and growth culturally, socially and economically. All forms of discrimination on grounds of gender are violative of fundamental freedoms and human rights.