The law against domestic violence turns out to be securing violent men rather than helping and protecting women. It is a civil law terribly implemented in the criminal courts seeking civil remedies using standards of proof of a crime. The procedures in the law terrorise women and provide undue protections to the perpetrators of violence. Read on to know more
A family is a sanctuary, a place where individuals seek love, safety, security, and shelter. But unfortunately it has become a place that imperils lives and breeds some of the most drastic forms of violence perpetrated against women and girls. We call it domestic violence, a contradiction in society, indeed. Instead of peace what occupies home is all kinds of domestic violence. It is understood as a pattern of behaviours where one partner tries to maintain control on the other through the use of physical force, intimidation and threats. The abuse can take many different forms. Many studies have established that the domestic violence has assumed alarming proportions today. No society can claim to be free of such violence, only variation exists in the patterns and trends in different countries and regions. This violence, unfortunately, has gained acceptability as natural fall out of marriage and family life.
A statistics reveals that every 11-15 minutes, one woman suffers domestic violence, and the number of complaints inthe courts has increased. Even when domestic violence is least reported crime, the cases of injury to wife is reported highest in India — 18 women are killed per day for dowry, 87 face sexual harassment, 132 suffer various other harassments and 44 per day are subjected to atrocities.
Nearly 30 percent of all female homicide victims are known to have been killed by their husbands, former husbands, or boyfriends. In contrast, just over 3 percent of male homicide victims are known to have been killed by their wives, former wives, or girlfriends. Family members or other people they knew committed more than 2.7 million violent crimes against women.
We can no longer boast of our great Indian culture. The dying need to introduce 498A IPC (cruelty by husband and other relatives) in 1983 has put an end to this kind of myth. Life facing the 498A situations, unaddressed and unresolved, leads to death under 304B IPC (dowry death). For a wife, staying alive is a struggle, without 498A at home and with it, outside. Increase in crimes at home, absence of access to relief and not preventing 304B at 498A stage are real indicators of the serious conditions of domestic violence problem.
Women and children have a need and right to State protection even within the family home. Violence against women is perpetrated because legislation, law enforcement and judicial systems either condone or refuse to recognize domestic violence as a crime. One of the major challenges is to end impunity for perpetrators. So far, around 44 countries have adopted specific legislation to address violence at home.
Article 4 of Declaration on the Elimination of Violence against Women, adopted by the UN General Assembly, requires Member States to condemn violence against women and not invoke custom, tradition or religion to avoid their obligations to eliminate such violence; to develop penal, civil, labour and administrative sanctions in domestic legislation to punish and redress the wrongs caused to victims; to provide access to the mechanisms of justice and, as provided for by national legislation, to just and effective remedies; and to ensure that the re-victimization of women does not occur because of laws insensitive to gender considerations, enforcement practices or other interventions.
The legislation in India against domestic violence has a constitutional foundation. The Protection of Women from Domestic Violence Act (PWDVA) 2005 recognises the fact that women are disproportionately affected by domestic violence due to their socio-historical position of inequality. It cannot be called strictly gender specific, because it provides for protection of boys also from domestic violence and allows victims to sue women for domestic violence. Considering the substantial aspect ofprotection offered to women, this legislation falls under the mandate of Article 15(3) that allows the State to take special measures for women to remedy these historical disadvantages and equalise relationships within the home. This law recognizes a woman’s right to a violence-free home and provides for remedies in cases of breach of this right, without prescribing jail terms as happens in penal legislation.
On Procedural Issues under the domestic violence act
As far as the confusion as to the Issue of procedural confusion under the Domestic Violence Act is concerned, it must be kept in the mind that it is a beneficial legislation which provides for protecting the dignity of women against the acts of domestic violence and gives recognition to certain rights of the women in a household. As to the procedural conundrum in the Act, if any, it can be resolved by taking a recourse to Section 28 and Section 36 of the Act which provide sufficient latitude to the courts to meet the objects of the Act provided principles of natural justice are duly taken care of. Though of late due to the reluctance of the courts to adopt the spirit of the Act, the remedy under the Act, which was envisaged as a summary remedy, is now slowly becoming a matter of full scale trial.
On Impact of the domestic violence act
The DV Act has served a very important purpose by having a demonstrative effect in the society by declaring domestic violence as just not an immoral act but a legally forbidden behavioural pattern which the courts are now appropriately equipped to deal with the issues related to the domestic violence.
Procedures prescribed under the law are meant to facilitate a woman’s access to speedy and efficacious remedies by giving effect to the substantive right recognized in this statute. Section 12 of Act says a victim may apply directly or through the Protection officer or any other person to the Magistrate. For obtaining orders of protection (s 18), residence (s 19), monetary reliefs (s20), custody (s21), compensation (s22) interim and ex parte orders (s23)and offences under section 31the procedure prescribed is that available under Code of criminal procedure as per section 28(1). But what is conveniently ignored totally is Section 28(2) which permits the court to lay down its own procedure for disposal of an application under Section 12 (application to protection officer or magistrate for protection) or 23(2)to secure ex parte orders in favour of aggrieved person under sections 18, 19, 20, 21 and orders against respondents under s 22 on satisfaction reached by Magistrate that domestic violence is or being committed. This is an important section offering procedural autonomy to Magistrate liberating the court from mandatory procedure of CrPC. Instead of giving thebenefit of this provision to the aggrieved person, the Magistrates are strictly following the CrPC for every relief sought by women. This is practically resulting in injustice and denial of relief to women and respondent men are exploiting all those rights of accused in a civil litigation, which is an undue advantage not envisaged by any domestic violence law anywhere in the world. From this mixed provisions of criminal procedure, the criminal lawyers are finding a huge advantage of getting the ‘civil proceedings’ quashed by High Court. This is where the purpose and objective of the law is being defeated in every case, discouraging women from approaching for civil remedy and forcing them to use 498A IPC against all the respondent husbands and their relatives.
Unfortunately, either law is not understood properly by majority of the judicial officers or clever lawyers are interpreting these ambiguous provisions to the advantage of client-husbands. When procedural provision of this Act (s12) allows victim, any other person or protection officer to apply and Magistrateto devise any provision, why the criminal procedure code is strictly being followed? Are we unduly turning suits for civil remedies into criminal proceedings giving higher protections to accused than the victims.
Domestic Violence is a violation of right of a woman or girl or a boy at their own home, which could be both a crime and civil wrong. The PWDV Act 2005 offers remedies of civil nature i.e., providing compensation rather than prescribing punishment except for one section where the protection order of court is not complied with. It can be said that PWDV Act is a tort law but dealt by criminal courts. Simply because it is being handled by criminal court, it is wrong to assume that domestic violence as defined in this Act as a crime. There are very serious implications of assuming the wrongs under this Act as crimes, which negate the purpose and objectives and also deny the relief intended by the legislature. These are the serious problems:
Much against the avowed objective of Act is to provide for more effective protection of the rights of women guaranteed under the Constitution, whenever a wife sought protection, she is generally facing ‘quash’ proceedings and stay of proceedings from the seats of justice. The cases under domestic violence law are treated as if they are no short of criminal cases under 498A or 304B IPC or some serious crime like murder. If the High Court quashes the petition for compensation or protection or maintenance or share in property or an order for preventing violence, what does it mean? It means that a woman in need of protection and support is denied an opportunity even to ask for it. That is not the objective of Constitution and this law.
On one hand the substantial part of law recognized the Constitutional right of wives, sisters and daughters to live in violence free homes and on the other it is withdrawn through the procedures and practical misunderstanding of the law. Though there are several judgments to say that quashing power has to be used sparingly in all criminal cases, it is profusely used in quashing 498A cases and now it is being used to deny the remedies provided under PWDV Act. Quashing a criminal charge on the grounds of frivolous nature or falsity on the face of it will definitely secure the rights of accused. But in domestic violence cases there is no accused and no jail terms even if violence is proved. Quashing the proceedings will result in blocking out of petitions for protection and maintenance, which is quite unconstitutional and against basic tenets of justice.
India till date is largely a male dominated society. Till the enactment of the Domestic Violence Act in 2005 the violence against women especially in a domestic settingwas largely a norm of the day, so much so that the cognizance of this ugly face of our society was neither taken by our society nor our legal system. And so, women largely remained without any effective judicial mechanism for the redressal of the violence against them. In that sense the Act of 2005 marks a mile stone in the onward journey of Indian Women towards gender justice.
Prior to the Act the only effective remedies available under law were Section 498-A and 406 of the Indian Penal Code. But for availing these remedies the first pre-requisite was to be a wife otherwise if one was just a sister, mother, grandmother, niece or even just a girl friend in a live-in relationship one was left with no legal recourse in the case of violence in the household which the act has appropriately termed as “Domestic Violence”. In short this is a terrific piece of legislation which enables Indian women to obtain justice by providing for sufficient procedural freedom to the court entertaining the domestic violence petition.
Rajasthan High Court recently pointed out the civil nature of the wrongs under DV Act. In its judgment paragraph no. 7 it stated: In India, although the criminal law deals with domestic violence in the form of Section 498-A IPC, but there was no provision in the Civil Law to deal with the said problem. In order to get rid of the mischief of domestic violence, the Parliament, in its wisdom, enacted the Act, which came into force on 26 October, 2006. The Act is a social beneficial piece of legislation, which should be given as wide and as liberal an interpretation as possible. Even if they are inclined to, no magistrate is allowed to liberally interpretthe procedural provisions by the criminal lawyers dealing with accused husbands in criminal courts.
The Act is a beneficial piece of legislation, which is an outcome of the Vienna Accord of 1994 and the Beijing Declaration and the Platform for Action (1995). It is also a result of United Nations Committee on Convention on Elimination of All Forms of Discrimination Against Women (CEDAW). Although the criminal law deals with domestic violence in the form of Section 498-A IPC, it was felt that there was no remedy under the civil law.
Therefore, in order to get rid of the mischief of domestic violence, the Parliament, in its wisdom, enacted the Act, which came into force on 26 October, 2006. Undoubtedly the Act is meant to protect the women from domestic violence committed against them by the husband and his family members. The Act has recognised the fact that domestic violence is limited not only to physical and mental cruelty, but can also extend to verbal and emotional abuse, and even to economic abuse. The Act has recognised the fact that mental cruelty can take the form of verbal and emotional abuse, such an abuse would include threat to causing physical abuse to any person in whom the aggrieved person is 14 interested. Moreover, the Act has recognised that aggrieved person has a right to economic resources of the husband and his family members, has a right to “stridhan”, and has a right to be maintained. In case her economic rights are violated by the husband or his family members, then according to Section 3 of the Act, domestic violence is committed. Since the Act is a social beneficial piece of legislation, Section 3 of the Act must be given a liberal interpretation.
In another recent case Justice Ravindra Bhat of the Delhi High Court explained the nature of the wrong under this Act. The justice said: the primary intention in enacting the Act apparently was to secure to a woman living in matrimony or in a relationship akin to matrimony, or any domestic relationship, various rights. Domestic violence, interestingly is, per se, not a criminal offence but is defined extensively and comprehensively to include various conditions. The woman exposed to suchdomestic violence is given the right to move the Court for any of the reliefs outlined in Section 12 through either a comprehensive proceeding, claiming maintenance, the right to residence, compensation etc. or even move the Court seized of any other pending proceeding, such as divorce and maintenance etc. (Section 26). Section 17 has, for the first time, enacted a right to residence in favor of such women. The enactment being a beneficial one, the approach of the Court always has to be to uphold the parliamentary intention and give it a liberal interpretation rather than confining it, which would inevitably lead to defeating the object of the law.
Domestic violence is per se not an offence but its incidence or occurrence enables a woman to approach the Court for multifarious reliefs. Now the Court is empowered to grant ex-parte relief and ensure its compliance, including by directing the police authorities to implement the order, particularly those relating to residence, etc. When such an order is violated, by the respondent, which is defined to include female relatives of the husband or the male partner etc, such action would constitute a punishable offence, which can be tried in a summary manner under Section 31 of the Act. All other provisions give civil remedies.
Justice Ravindra Bhat further said that this was a secular legislation, akin to Section 125 of the Code of Criminal Procedure, 1973. It was enacted “to provide more effective protection of the rights of women guaranteed under the Constitution who are victims of violence of any kind occurring within the family”.
The introduction of the remedy of right to residence is a revolutionary and path breaking step, taken to further the objects of the Act, and any attempt at restricting the scope of the remedy would reduce the effectiveness of the Act itself. Therefore, it would be contrary to the scheme and the objects of the Act to restrict its application to only such cases where the husband owns some property or has a share in it, as the mother-in-law can also be a respondent in the proceedings under the Domestic Violence Act and remedies available under the same Act would necessarily need to be enforced against her.
AP High Court held that the domestic violence petition is a quasi criminal proceeding. Rejecting the contention of double jeopardy, the AP High Court observed that, they are not criminal proceedings as such to fall within the mischief of Article 20(2) of the Indian Constitution or under Section 300 Cr.PC “. Economic Rights of women such as Stridhana or right to be maintained by the husband are sought to be secured by this law. It also recognized right of women to maintenance from the husband. In one case it was held that merely because the respondent-wife was not staying with the petitioner-husband, it would not absolve the husband from his liability under the Act. Proper understanding of the background and nature of this enactment leads to logical conclusion thatproceedings under this law are neither criminal nor quasi criminal but just civil and nothing else. It is highly improper, unreasonable and not unjustifiable to apply criminal procedure to these civil petitions for monetary or injunctive reliefs.
The time has come for the Parliament to clarify that only civil remedies are provided by the 2005 legislation, it cannot be quashed as a criminal proceeding and a less standard of proof such as probability of occurrence should form the basis for providing relief to hapless victims – women and children. There should be interim relief within 24 hours of the filing of petition. Entire case should not take more than three months and an appeal should not be allowed unless an apparent injustice is proved by the perpetrators of violence. If the civil remedies are quickened and strengthened removing misunderstandings, the women need not resort to criminal proceedings to pressurize unwilling and harassing husbands to concede divorce or peaceful living.
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