HISTORY OF THE DOMESTIC VIOLENCE ACT
Domestic violence was added as a separate criminal crime to the Indian Penal Code in 1983, however this achieved little to reduce violence against women in the house or family. As a result, the legislature passed the Domestic Violence Act of 2005 (Domestic Violence Actor Act) to protect women from domestic violence.
On the basis of Article 253 of the Constitution, Parliament passed the statute under consideration. This law empowers Parliament to pass legislation in compliance with international treaties and agreements. The Domestic Violence Act was enacted in response to United Nation’s (UN) proposals for domestic violence laws made by Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW).
INTRODUCTION TO THE DOMESTIC VIOLENCE ACT
Domestic violence is defined in a number of phases or classifications under the Protection of Women from Domestic Violence Act. Domestic violence is defined in Section 3 of the Protection of Women from Domestic Violence Act, 2005 as any conduct that is delivered on a habitual basis and includes numerous forms of assault that make the aggrieved or inflicted person's life wretched.
According to the Domestic Violence Act, the victimized party is deprived of her personal liberties through continuous violence or belittlement; the nature of the definition constitutes a feeling of depression by the aggrieved party even if the underlying conduct does not amount to physical ill-treatment. Domestic violence is further defined by the Domestic Violence Act as any Action performed within the confines of a partnership or marriage, as any Action that drives the aggrieved party to conduct an immoral life, or as any Action that causes harm or injury to the aggrieved person.
The Domestic Violence Act further specifies that an individual accused with domestic violence will not be heard if the responding party pursued a reasonable course of behavior for his or her own protection or the protection of another party’s property.
PURPOSE AND AMBIT OF THE DOMESTIC VIOLENCE ACT
The Domestic Violence Act is intended to protect the wife or female live-in partner from domestic violence perpetrated by her husband or male live-in partner. The Act’s provisions also protect women who are widows, mothers, or sisters from domestic abuse.
Domestic violence, according to the Act, includes any actual or threatened abuse, regardless of whether the actions are physical, sexual, economic, verbal, or emotional. Economic domestic abuse, as defined by the Domestic Violence Act, is any harassment of a woman or her relatives through illegal dowry demands.
The right of women to get housing is one of the key purposes of the Domestic Violence Act. The Domestic Violence Act protects a woman’s right to live in a shared household, regardless of whether the individual has title or rights to the property. A residence order issued by a coordinating court under the Domestic Violence Act secures this privilege. These orders may not be issued against any woman.
DRAWBACKS OF THE ACT
Though the Domestic Violence Act of 2005, promises justice to women who are victims of domestic violence, the Act has not been fully enforced, and there is an urgent need to promote awareness among people, particularly in rural India. As a result, the Domestic Violence Act has a few flaws. To begin with, one of the most contentious aspects of the Act is the definitions of “aggrieved person” and “respondent,” as well as the Act primarily protects women’s rights against domestic violence. The Act presumes that women are the only victims. Because this law is primarily woman-centric, only a woman can submit a complaint against a male, and a man has no rights under this law.
Secondly, it is critical to realize that the Act offers women with quasi-criminal or civil remedies, implying that the Act is more civil in nature than criminal, and has been heavily criticized for this. Because of the structure of the Act, it requires the Respondent to commit another offence (such as breaching an order issued under this legislation) before criminal sanctions like as fines, arrest, and imprisonment can be imposed. Given that necessity, there is a specific societal framework in which domestic violence occurs in India, which, when paired with lesser political-social and economic decision-making power, makes it more difficult for a large majority of victims to leave abusive domestic relationships.
Thirdly, the key issue that appears to have been completely disregarded is LGBT relationships. Despite the lack of a clear statement in the Act, the Supreme Court stated in the case of S. Khushboo vs. Kanniammal& Anr[1]., that a live-in relationship is admissible only among unmarried adults of major age in heterogeneous relationships.
Fourthly, there appears to be issues with the practical application of the Act’s regulations. According to the Act, the victim can seek justice immediately from the Protection Officer (PO). However, it has been discovered that not a single individual has approached the PO directly in any domestic violence case. The majority of the time, victims approached the police and then briefed the officers about the situation. It has been observed that in many districts, the job of Protection Officer is assigned to senior officers who already have other obligations. And those selected as Protection Officers are uninformed of their responsibilities. As a result, they fail to carry out the majority of the tasks outlined in the Act, and as a result, victims are unable to fully benefit from the law. Similarly, the Act stated that there should be as many shelter homes as judged necessary. However, study regarding effective application has revealed that many areas lack even a single shelter home.
As a result, under Section 12 of the Act[2], the victim is entitled to protection within 60 days after filing a complaint. Even though the first hearing should have taken place within that 60-day period, it took much longer due to delays by officials. Due to a lack of awareness, most cases of domestic abuse reach the officials towards the end of the process. Protection Officers are quite liberal in their employment. They handle the cases solely for the purpose of demonstrating their ability to assist others. According to the law, the outcome should be available within 90 days. However, due to the officials’ forbearance, not a single case is resolved within the time frame specified.
Furthermore, the concept of domestic violence is vague. It has been observed that an insult is also considered domestic violence. It is true that disagreements can emerge in a marriage at any time due to a lack of good understanding between the pair. Many people are working on it and trying to work out their disagreements. While some women approach the court for small matters, men feel threatened by the legislation. As a result, this law will result in more divorces and family breakdowns.
Finally, there is the possibility of misuse. If a woman files a complaint alleging verbal and emotional abuse by her spouse, she is not required to show anything.
A magistrate may, under Section 18 of this Act[3], take steps to safeguard the lady from any future Acts of violence that are likely to occur. This means that the woman receives an advantage in terms of protection, and the person against whom they have complained can be penalized even if he has not performed any Act of violence and there is merely a probability that the violence will occur in the future.
According to Section 32(2)[4] of the Act, the court finds that the victim’s (woman’s) statement is always accurate and that no supporting evidence is required to prove that an offence was committed.
This Act further states that information on an Act of domestic abuse does not have to be filed by the woman herself, but can be filed by anyone who has reason to think that such an Act has occurred or is being committed. That is, even the victim’s neighbors and relatives can take action on his or her behalf. This is a blatant injustice because anyone can file a complaint on the woman's behalf without any legitimate proof or evidence.
This is extremely dangerous for innocent men because they have no recourse against women who can lodge false complaints at any time due to a grudge, and the fact that a complaint lodged by a woman is always treated as true and genuine opens up the possibility of misuse in which innocent men are accused and implicated of false charges.
IMPROVEMENTS NEEDED IN THE ACT
The government should hire a separate Protection officer (PO) to help reduce domestic violence.
The judicial or legal procedure should be simple for the victims, and the authority should give them enough protection.
Justice must be served within the time frame specified (60 Days).
Because the majority of PO’s are male, while the majority of victims are female, the government should recruit female PO’s for the benefit of female victims.
The Act should be properly implemented and decisions should be made quickly when solving a case along with the fact that the government should be held accountable for not instituting appropriate reformation measures in this regard.
CONCLUSION
The Government of India enacted the Protection of Women from Domestic Violence Act, 2005 on October 26, 2006. The Prevention of Women from Domestic Violence Act of 2005 is a noble piece of law that has largely succeeded in its goal of assisting, protecting, and preserving helpless women from domestic abuse and violence. However, in order to ensure future success, it is critical that flaws in its implementation are promptly addressed, and efforts are made to ensure the efficient functioning of courts and government authorities mandated by the Act in rendering complete justice to women and alleviating ignorance about the Act’s provisions.
The law is now woefully inadequate to address the problem of domestic violence. It elevates women to a higher status than men. Furthermore, it fails to recognize LGBTQ+ community members' cohabitation and married relationships. As a result, these provisions must be incorporated in the Act in order to completely eliminate domestic violence. According to our Constitution, we all have equal rights, regardless of caste, creed, gender, or other factors. This means that the law should protect both men and women equally. Furthermore, by specifying what constitutes domestic abuse punishable under this Act, the law can be made more practical. When a person who has not committed a crime is threatened by the law, it is an outright injustice to that individual.
REFERENCES: [1] (2010) 5 SCC 600 [2] Protection of Women from Domestic Violence Act, 2005 [3] Protection of Women from Domestic Violence Act, 2005 [4] Protection of Women from Domestic Violence Act, 2005
Witten By,
Kalpana Nailwal,
Intern, Chanchlani Law World
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