INTRODUCTION:
Domestic Violence is a universal phenomenon. According to the statistics, one in three women worldwide experience domestic violence. Often identified with ‘intimate partner violence, the United Nations[1] define Domestic Violence as ‘a pattern of behavior in any relationship that is used to gain or maintain power and control over intimate partner. The abuse can be in either or all forms of physical, sexual, emotional, economic or psychological. Most importantly, anyone can be victim of domestic violence, regardless of age, race, gender, sexual orientation, faith or class.’
The definition has wide scope to cover different kinds of abuse, and recognizes the potentiality of any gender identity falling as victim of domestic violence.
The Protection of Women from Domestic Violence Act was enacted in 2005 by the Indian Parliament. The Act codifies and recognizes a set of rights intended to protect women, children from domestic violence and abuse. It was formulated to implement Recommendation No. 12 of United Nations Committee on Convention on Elimination of All Forms of Discrimination Against Women (CEDAW), 1989, which was ratified by India in June, 1993.
According to Section 2 of the Protection of Women from Domestic Violence Act (PWDVA), 2005, any woman – married, live-in partner, relative; child living in ‘shared household’ with the respondent can be the aggrieved person. 2 (f) defines domestic relationship: two people who have lived together, related by nature of marriage, family members living together in shared household
Why Need Of One More Law?
Dowry is one of the chief reasons behind domestic violence. Thus, the Dowry Act was brought in 1961, but it could do little to bring the graph down. In the year 1983, Section 498A was introduced to curb the rising ‘accidental kitchen fire’ incidents. Undoubtedly the deaths were result of harassment for dowry because almost all the victims were young brides. Later, Section 304B was introduced to presume any unnatural death within 7 years of marriage as a ‘dowry death.’ Both these Sections were introduced to strengthen the existing Act. Later, the scope of 498A was widened to seek remedy for other types of violence at home, besides dowry harassment.
The objective of these previous remedies and recourses in mitigating the evil of Domestic Violence remained under-utilized, mainly because of these reasons –
They did not give immediate relief to the victim
The procedural requirements of 498A scared off the victims and in many cases ‘persuaded’ by the Police to take back the complaint.
The offence being criminal in nature, meant using this as the last resort.
There is close connection between dowry demand and domestic violence; however, existence of both the elements together is not mandatory. But dowry was the main element to attract 498A.
The purpose of DV Act, on the contrary, is to provide immediate relief to the aggrieved person by protection order, right to residence, interim relief, custody of children, etc. The Act is civil in nature, it does not give any punishment, but provides protection and remedies as interim measure. This Act, unlike 498A, is not limited to married women alone. The constituents of abuse are also widened beyond dowry harassment. Cruelty defined under 498A focuses on two elements – willful conduct of the abuser driving the woman to commit suicide, and harassment with a view to coerce for dowry. Thus, if the abuse was not grave enough to culminate into suicide or money specific, then the victim had no remedy, except the relevant sections of IPC covering Hurt, grievous hurt, etc. The DV Act in this regard relies on UN Framework for Model Legislation.
The Aim of the Act summarized in words of Flavia Agnes is to protect women through a one window remedy, encompassing within it pre-litigation support services and expeditious civil relief through court orders.
ANALYSIS OF THE ACT – the problematic areas
One of the chief issues that has exposed this noble Act as a potential tool of harassment is its subjectivity. In Bawinder Singh v Richa Sharma, Punjab & Haryana Court observed that the Act has inherent flaws that tempt women to misuse their provision. Similar opinion was voiced by former Attorney General of India, Soli Sorabjee in criticizing the Act for is broad definition of abuse.
Few of the problematic areas are summarized below:
i. Shared Household - Section 17-
Under Section 17(1) of the Act, “every woman in a domestic relationship shall have the right to reside in the shared household, whether or not she has any right, title, beneficial interest in the same.
On one side, this provision is a welcome step as many of the abuse victims remain silent because they will face the risk of eviction if they go ahead with complaint. Thus, the assurance to continue in the residence as before (filing the complaint), the victims will have a better support system.
However, on the other side, this provision has scope of misuse as well. Especially in cases where the issue has started from property ownership and later transformed into a Domestic Violence complaint.
In a recent case, Shamshada Akhtar vs Ajaz Paraz Shah, the local court of Jammu and Kashmir imposed the fine on wife of Rupees ten lakh for using the DV Act for harassing the husband. In this, the main issue revolved around occupancy of shared household. In this, the Court took cognizance of series of Petitions and Appeals filed by wife for allegedly evicting husband from the shared household despite the lower Court’s order for both the parties to accommodate amicably in the same house. The case was dragged on from 2019 to the Apex Court and finally concluded in 2021, after wife wanted to withdraw the application.
Shared Household jurisprudence from Judgements in Batra to Ahuja:
In S.R.Batra vs Taruna Batra[2], the Apex Court, in its narrow interpretation, downsized the scope of shared household. The Petitioner husband and Respondent wife were living together in the house that was owned by Petitioner’s mother. He filed for divorce and soon after that the deserted wife filed a suit for mandatory injunction to enter matrimonial home. The trial Court granted her injunction recognizing her right to residence in the matrimonial home. The aggrieved party appealed to the Senior Civil Judge who overturned the earlier Order. Wife appealed to the High Court, which upheld trial court decision. The mother-in-law and son then appealed to the Apex Court. The Court held that ‘wife is entitled to claim a right to residence in shared household. But that shared household would only mean the house belonging to her husband or taken on rent by husband, or the house which belong to the joint family of which husband is a member.’
Thus, the Supreme Court established the rules for interpreting ‘shared household’ by bringing objectivity in interpretation.
However, this interpretation defeated the very purpose of the DV Act, which was based upon a recognition of the structural vulnerabilities faced by women within the social institution of marriage.
In Satish Chander Ahuja vs Sneha Ahuja, 2020, the Apex Court retracted the previous judgment and acknowledged that it defeated the very purpose of the DV Act. The Court held that right to residence is not limited to whether the joint property belonged to husband. It means the last household in which the partied had lived together and access to which was ought to be deprived. Thus, the Hon’ble Court interpreted the statute in the language of rights and not the paternalistic gifts to protect the weaker party.
ii. Interim Maintenance and Ex Parte Order– Section 20 read along with Section 23
If the application prima facie discloses domestic violence, then the Magistrate can pass any such interim or ex parte order as she may deem fit and proper.
For genuine Domestic Violence victim, this remedy is extremely significant in absence of timely disposal of cases. However, a hasty order not only makes it a tool of harassment but also open multiple litigations. The Higher Courts often caution lower courts in use of this remedy under Section 23 with utmost caution. For example, Kerela High Court, in Preceline George v State of Kerela, [3]provided detailed guidelines for passing ex parte order and discouraged the trial courts to pass indiscriminate orders under Section 23 (2).
iii. Definition of Cruelty – Section 3
A major difference between 498-A and DV Act on the ground of ‘cruelty’ is that in the former the standard of proof is ‘beyond reasonable doubt, while in latter it is ‘Preponderance of probabilities.’ Further, the criminal legislation confines Domestic Violence to physical and mental cruelty, whereas the quasi-civil legislation extends it to sexual, financial, verbal and emotional abuse.
This broad definition of cruelty under DV Act is a progressive step to acknowledge dignity of a woman beyond a traditional set up, however leaves it open to varying interpretation and at times ‘first finding the man then finding the law’ approach in framing charges. In cases of mental cruelty, the evidence is difficult to be gathered and different criteria need to be evolved.
In this, the role of Judicial officer is very important to identify ‘cruelty.’ Stopping wife from using mobile phone may be cruelty in one case but not another. For example, in Mohd Hoshan vs State of AP[4], the victim committed suicide due to constant taunts and verbal abuse by husband and in-laws. The Supreme Court held, ‘accusation of taunts amounting to cruelty depends upon various factors such as a person’s sensitivity and endurance.’
Other Vulnerable Factors:
Protection officers are an important segment of the successful execution of this Act. The DIR report that is filled by PO is an important document that is referred by the court to as the evidence in the later proceedings if it may be. However, most of the PO are not emotionally and intelligently qualified. Responding to a PIL filed by NGO ‘We the Women of India,’ the Supreme Court in May 2021, issued notice to the Central Government with regard to role and duties of Protection Officers and Service Providers. This resonates with an insightful research study conducted by Poulamy Roychodhary using data collected from 22 months of participant observation with survivors of domestic violence in India[5]. The study titled ‘Victims to Survivors,’ highlights how Protection Officers often pick and choose the ‘victim’ based on capability of the victim to ‘drive the case forward.’
There are structural errors in the execution of the Act. The lack of training and awareness program leading to unclarity that Magistrate face in passing orders and giving remedies and also challenges the faced by service providers as the Act comes under the purview of Criminal Courts. [6]
Critical Appraisal:
One of the criticisms of the Act is its gender bias as it recognizes only women as victim and men as perpetrators. In Aruna Parmod Shah v Union of India, 2008, the Act was challenged for its constitutionality on the bases of gender bias. An alternative will be to make the Act Gender neutral. But the legislative intent behind the Act is gender justice, which is based on data that shows women as victim of domestic violence in majority of the cases.
The critics of the Act rely on data of NCRB to establish that these remedies, DV Act and 498A, are mainly used to file false cases. In 2014, 426 cases were registered under the DV Act, out of which charge-sheet was filed in 312 cases. Conviction happened in only 9 cases. To what extent low conviction rate can be taken as a sign of false cases is debatable. Parties reaching compromise, lack of evidences, withdrawal are other factors that impact conviction.
CONCLUSION:
The DV Act is gripped with ‘Good law with bad execution’ syndrome. The Act as whole is based on ‘Victim Empowerment Model’ by looking at the issue of domestic violence from below instead of top. The Act, being civil in nature, heavily relies on protection orders, injunctions and non-molestation orders; but at the same time these can be misused. It is premised on a convergent model between designated stakeholders. However, no linkages had been set in place between the police and the protection officer or the protection officer and the legal service authority. [7] Same is the issue with Protection Officers as already discussed.
According to NCRB, 2019 Data, a total of 4,05,861 cases of crime against women were reported in 2019. About 31% out of them were cases registered under ‘Cruelty by husband his relatives. If we look at the data collected of 498A: Data of NCRB says, in 2020, about 5% of the cases under section 498A were false, while 9.4% were either non-cognisable or civil in nature or with insufficient evidence in the end. The data validates that number of false cases are very less compared to the genuine ones. The dilution of the Act will be an injustice to that larger percentage which may get some remedy under the law. Most importantly, diluting the law on the reasoning of fear of false cases is wrong as the errors are because of human failing. The law is not failure. It is the implementation that needs relook. Whether the law is implemented in letter and spirit, whether the role of Protection officers, State Women Commissions are closely monitored and accounted for.
Thus, for full realization of its objective and to prevent its misuse, a coordinated and holistic legal approach should be taken.
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Resources:
Cases:
1. Mohd Hoshan vs State of AP, (2002) 7 SCC 407
2. Bawinder Singh v Richa Sharma
3. Shamshada Akhtar vs Ajaz Paraz Shah
4. Preceline George v State of Kerela
5. Satish Chander Ahuja vs Sneha Ahuja, 2020
6. S.R.Batra vs Taruna Batra
7.PWDVA Act, 2005: https://www.indiacode.nic.in/bitstream/123456789/15436/1/protection_of_women_from_domestic_violence_act%2C_2005.pdf
10. The Challenge of Subjectivity within Courts: Interpreting the Domestic Violence Act Author(s): POOJA BADARINATH Source: Economic and Political Weekly, Vol. 46, No. 12 (MARCH 19-25, 2011), pp. 15-18
11. Poulami Roychoydhari, Victims to Saviors – Governmentality and Regendering of Citizenship in India, Vol 29, pp792-816, Sage Publications, 2015
12. Flavia Agnes and Audrey D’Mello, Protection of women from domestic violence, Eco and Socio Weekly, Vol.50, 2015
13. Indira Jaisingh, Bringing Rights Home: Review of the Campaign for a Law on Domestic Violence, Eco and Socio Weekly, Vol. 44, 2009
[1] https://www.un.org/en/coronavirus/what-is-domestic-abuse [2]S.R.Batra vs Taruna Batra, (2007) DMC SC [3] Preceline George vs State of Kerela, 2010 KLT 454 [4] Mohd Hoshan vs State of AP, (2002) 7 SCC 407 [5] Poulami Roychoydhari, Victims to Saviors – Governmentality and Regendering of Citizenship in India, Vol 29, pp792-816, Sage Publications, 2015 [6] Flavia Agnes and Audrey D’Mello, Protection of women from domestic violence, Eco and Socio Weekly, Vol.50, 2015 [7] Flavia Agnes
Written By,
Vartika Sharma
Intern, Chanchlani Law World
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