Open Access Research Article
CRITICAL ANALYSIS OF THE PROTECTION OF WOMEN FROM DOMESTIC VIOLENCE ACT, 2005
Published Paper
Article Details
‘‘CRITICAL ANALYSIS OF THE PROTECTION OF WOMEN FROM DOMESTIC
VIOLENCE ACT, 2005’’
AUTHORED BY -
ANISHA KUMARI
Under
supervision of Dr Prerna
First Sem LLM
Student, IILM University Greater Noida
Abstract
Violence against women in India is an issue rooted in societal
norms and economic
dependence.
Female feticide, domestic
violence, sexual harassment, and other forms of gender-based violence constitute the reality of most girls'
and women's lives in India.
Act like Pushing,
kicking, slapping, punching,
or scratching affects the physical and psychological wellbeing of the abused women and even that of their children.
Although female participation in public life is increasing and laws have been amended,
India still has a long way to go to make Indian
women equal citizens in their
own country. In our society, many women are harassed by their partners while they suffer in silence. In some cases,
domestic violence leads
to the death of these women. It is on this premise that this paper discusses
the meaning, causes, types of domestic violence and after-effects of these types of violence on abused women.
Domestic violence occurs
when a member of the victim's
household commits a violent act. This includes current and former spouses,
members of your direct family
and close family
friends. When there is a close link between the offender and the victim,
the phrase "domestic violence" is employed.
They typically have a difference in power. The criminal depends
on the victim. Abuse that is physical,
sexual, or psychological can be categorized as domestic violence.
Domestic Violence Against Women Any act of gender-based violence
against women that causes or is likely
to cause them physical, sexual,
or emotional injury
or suffering, including threats of such actions, coercion,
or arbitrary deprivation of liberty, whether
in public or private, is known as domestic violence.
Physical violence includes using physical force against the partner such
as slapping, hitting, kicking, and beating. Sexual
violence, including forced
sexual intercourse and other forms
of forcible sexual
activity. Emotional (psychological) abuse, such as insults, criticism, constant humiliation, demoralizing, intimidation (ex- destroying things),
threats of harm,
threats to take away children.
Controlling behavior, including isolating a person from family and
friends, monitoring their movements,
restricting access to financial resources, employment, education, or medical
care. Economic violence, such as monitoring a person's access
to money and keeping them financially
dependent. Domestic violence
is governed by the protection of women from domestic violence
act, 2005 and its defined under section 3, which states that any act,
commission, omission, or conduct of a person
harms or injures
or endangers the health or safety of an individual whether mentally or
physically it amounts to violence.it also compasses claim for compensation
under section 125 of criminal
procedure code 1973. In constitutional aspect protection of women is fundamental rights under article
14,15 and 21 victim can approach the court under
section 498A of Indian penal code. This article
emphasis the social violence, economic violence, physical violence and its causes, issues, and
impact on society. It also deals the recent development through case laws in India.
Keyword: domestic
violence, women, family,
social and legal issues, causes
and effects and suggestions.
Introduction
The foundations of domestic violence are imbedded deep in evolutionary
history of mankind in India. The
history of mankind is history of repeated injuries and usurpations towards
women, with an objective to establish tyranny
over her. Women were always
considered vulnerable and, in
a position, to be exploited. Violence has long been accepted as something that
happened to women. Family which was
perceived as an arena of love, affection, gentleness and center of solidarity and warmth has now become a
center of exploitation, and violence ranging from slapping, hitting, homicidal assault by one member of the family
on the other, the husband and in-laws
harassment for dowry or for another reason, dowry deaths, wife bettering,
female child abuse and abuse of
elderly female in a family are also included in domestic violence. Domestic Violence
is not person specific; its victim can be children, woman, aged, disabled
or any other vulnerable group. However, due to the traditional
patriarchal system, emotional and economic dependence
and inherent biological weakness term out to be the most potent and it is one
of the most vicious circle.
It takes place behind the closed doors,
the very door which are meant to protect
women from the hazards of the outside world. It is nothing short of a form of a custodial violence and must be so
recognized. Domestic violence must come out of the closet and be addressed. There is no universally
accepted definition of violence against women. Some human rights activists
prefer a broad-based definition that includes
"structural violence" such as poverty, and unequal access to health
and education. Others have argued for a more limited definition in order not to lose the actual descriptive power of the term. The United Nations Declaration on the Elimination of
Violence against Women (1993) defines violence against women 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 private life."
Violence against
women is a manifestation of historically unequal
power relations between
men and women, which have led
to domination over and discrimination against women by men and to the prevention of the full advancement of women...”1 Domestic
violence is physical,
sexual or psychological abuse directed towards
one’s spouse, partner or other family member with in the household. Domestic violence
occurs when a family member,
partner, or ex-partner attempts to physically or psychologically dominate or
harm the other. It occurs in all cultures, people of all races ethnicities and religions can be perpetrators of domestic
violence. Violence against women is
particularly intimate partner violence and sexual violence against women is the
major public health problems and violations of women’s human right. According to 2013 a global
review of available data, 35 per cent of women worldwide have experienced either physical and sexual intimate
partner violence or non-partner sexual violence. However,
some national violence studies
show that up to 70 per cent of women have experienced physical and or sexual violence in their lifetime from an
intimate partner.
MEANING OF VIOLENCE
The term violence refers to any physical
force for or any damage or injury to person or property.
Oxford Dictionary defines: “Violence as behaviors involving physical
force intended to hurt, damage or
kill someone or something”. WHO defines Violence: "the intentional use of
physical force or power, threatened
or actual, against oneself, another person, or against a group or community, which either results in or has
a high likelihood of resulting in injury, death, psychological harm, maldevelopment, or deprivation". ‘Domestic
violence is violent victimization of women within the boundaries of family, usually
by men. Domestic
violence is in most
of the cases violence against women by the members of house where she resides.
It can be the husband, his parents, or siblings or any other resident who has the overt or covert
latitude for actions that can cause physical
or mental agonies
to women…it happens
behind closed doors and is most often denied
by the very women who has been victim of violence.’ Objectives of the Present Study The main
objectives of present research paper is Forms of Domestic Violence All the possible
forms that will constitute the offence for a better understanding a) Physical Abuse While defining
Domestic Violence under the Protection of Women from Domestic Violence
Act, 2005, in section
3 of the act Physical Abuse explained as any act or conduct which is of such
nature as to cause bodily pain,
harm or danger to life, limb, or health or impair the health or development of the aggrieved person and include assault
criminal intimidation and criminal force.
FORMS OF DOMESTIC VIOLENCE
a) Physical
abuse is the most pervasive and ancient method of subordinating of women in a
family, it is the most common control mechanism applied against a woman within
the domestic sphere.
b) Psychological/
Emotional Abuse Causing of abuse to a woman in the domestic sphere is
multidimensional. Under the Protection of Women from Domestic Violence Act,
2005 emotional or psychological abuse which has been categorized as verbal, is
explained as to include – insults, ridicule, humiliation, name calling and
insults especially with regard to not having a child or a male child and
repeated there as to cause physical pain to any person in whom the aggrieved
person is interested. Psychological abuses are one of the major forms of abuses
faced by women. The report by the United Nations World Population Fund (UNFPA)
and the Washington- based International Center for Research on Women - polled
9,205 men, aged 18 to 49, across the states of Uttar Pradesh, Rajasthan,
Punjab, Haryana, Odisha, Madhya Pradesh and Maharashtra found that men who had
experienced discrimination as children were four times more likely to be
violent towards their partners. The highest reports of violence came from
Odisha and Uttar Pradesh, said the report, with more than 70 percent of men in
these regions admitting to being abusive towards their wives and partners.
c) Sexual
Abuse International law in the context of violence against women has recognized
sexual abuse against women as one of the forms of violence inflicted by both
public and private sector. The Protection of women from Domestic Violence Act,
2005 explains sexual abuse includes any conduct of a sexual nature that abuses
humiliates degrades or otherwise violates the dignity of women. This form of
abuse is specific to the interpersonal relation between a man and a woman most
often in a marital relationship. Of the many duties that a wife has towards her
husband, performance of sexual duties is one of them. A wife is never expected
to neglect her duties failure to carry out sexual duties or unfaith fullness
appears to have been widely accepted and understandable explanation for men’s
violence. In present times men use sexual violence to assert and maintain their
superior masculinity. This form of abuse is more common in households where men
are literate and affluent. In a survey it was found that 79% of men used sexual
violence to control their wives’ fidelity and 57% of them had more than 6 years
of formal education.
d) Economic
Abuse: - Economic abuse is a deprivation of the basic need of a person to
sustain him in a social set up. It is a form of abuse when one intimate partner
has control over the other partner's access to economic resources. Economic
abuse may involve preventing a spouse from resource acquisition, limiting the
number of resources to use by the victim, or by exploiting economic resources
of the victim. The motive behind preventing a spouse from acquiring resources
is to diminish victim's capacity to support him/her, thus forcing him/her to
depend on the perpetrator financially, which includes preventing the victim
from obtaining education, finding employment maintaining or advancing their
careers, and acquiring assets.
e) Intellectual
Abuse Of all the abuses in Domestic Violence previously discussed, intellectual
abuse has been missing from all the definitions of Domestic Violence. This is
perhaps because in India a marital relationship or any other man-woman
relationship is about the acceptance of inequality, where men dominate and
injure, and women get dominated and endure. The entire socialization process
has an inherent isolation for both men and women, which inhibits effective
communication between the two. Even where domestic harmony exists, there is a
sense of isolation in thought whereby both men and women experience alienation
from each other and at a certain level they come out to be strangers. Different
educational levels International Journal of Applied Research add to the
isolation as the mental levels are different and both find difficulties in
relating to each other at the intellect level. In most of instances it is seen
that Indian marriages are clouded with words such as adjustments and
compromises. There is no mention of companionship or friendship as John Stuart
Mill would describe it. In this scenario women come to be perceived as
intellectually inferior, hysterical, and unreliable and so on. This isolates
women with in a domestic sphere and limits their role to procreation of
children, preferable sons and to the nurturing their families. Even educated
and economically independent women face this isolation as men in a patriarchal
set up have controlled access to all economic activities and to all assets
including knowledge which contribute to their profitability. Moreover, a
woman’s work in India is shaped and monitored predominantly by patriarchal
authorities at home and outside The Domestic Violence Act, 2005 has failed to
address this form of abuse as it has been clubbed with other abuses such as
psychological emotional and economic there by missing its import.
f) Tolerance
of Abuse Since domestic violence tends to be culturally engrained, or derived
from culturally based gender roles, many women are tolerant of the abuse they
face. A study on domestic violence in India reflected this sentiment and found
that “among the women who reported violence, 29% had never received medical
care after domestic violence, and 10% had never told a health worker about
being abused. Only 5% of the women reported speaking to the health worker about
problems of violence at home.”
Visited
on Brewster MP. Journal of Family Violence. 2003;
Domestic Violence
against Women in India: Data Analysis Domestic
violence in India
Includes
any form of violence suffered by a person from a biological relative, but
typically is the violence suffered by a woman by male members of her family or
relatives. According to a National Family and Health Survey in 2005, total
lifetime prevalence of domestic violence was 33.5% and 8.5% for sexual violence
among women aged 15–49. The instance of violence was reported to be lowest
among Buddhist and Jain women, and highest among Muslim women in India. A 2014
study in The Lancet reports that the reported sexual violence rate in India is
among the lowest in the world, the large population of India means that the
violence affects 27·5 million over women their lifetime. “The number of cases
registered under DomesticViolence Act, 2005 has gone down over the past three
years,” said a March 13, 2015, release from the Press Information Bureau. “As
per the provisional data of the National Crime Records Bureau (NCRB) which is
available up to 2014, the numbers of such cases registered were 531 in 2014,
4204 in 2013 and 16,351 in 2012.” The reality, as Fact Checker found, appears
to be the opposite: the limited data available indicate domestic violence might
be soaring. Domestic violence in 2013 is low because 17 of 34 states and union
territories did not release any data.
Among them were many large states
including Maharashtra, Gujarat,
and Bihar. When it is reported, as we said, domestic violence
is skyrocketing. Among
states that released
data, former Andhra
Pradesh accounted for the highest
number of cases
registered under the Domestic
Violence Act: 3,758 in 2013, a 75% increase from 2012 (2,150
cases). Kerala comes
second with 142 cases in 2013, a 21% increase from 2012 (117 cases). A 2015 journal
article on domestic
violence in India,
by Claire Snell-Rood, a medical anthropologist at the Department of Behavioral Science with the University of Kentucky, notes that 75-86
percent of women do not disclose
that they are victims of abuse by their families (Snell-Rood 2015). A 3 March
2015 article by IPS reports
that, according to "the most recent government household survey," 40 percent of women have been abused
in their homes;
while, according to an independent survey supported by the Planning
Commission of India,
the number is closer to 84 percent.
The Hindu reports that, according to household surveys
conducted in India
by the United Nations Office
on Drugs and Crime (UNODC), 10
percent of women in India reported that they have experienced sexual
violence by their husbands in their lifetime
(The Hindu 19 Dec. 2014). Reuters reported
in June 2012 that, according
to the Health and Program Development Adviser at Save the Children UK, an international NGO that works
in 120 countries to "save children's lives" (Save
the Children), despite India's domestic violence Act, "'women and
girls continue to be sold as chattels,
married off as young as 10, burned alive as a result of dowry-related disputes
and young girls [are] exploited and
abused as domestic slave labor'" (Reuters 13 June 2012). Legal Measures
The Protection of Women from Domestic Violence
Act, 2005 On 26th October,
2006, the central
govt. notified this Act in the official
gazette. The Act aims at providing protection to women from Domestic Violence
faced by them with
in 4 walls of their houses.
This Act represents a major victory
for women’s rights in India.
Importantly, the new law, which criminalizes the abuse of a woman
by her spouse, partner, or other males
in the household, recognizes the abused
woman’s right to secure housing.
Sections 18-23 are the soul of this Act; these
sections of the Act provide
a large number of avenues
for an abused women to get relief.
She can get through the courts, Protection orders, residence order,
monetary relief order, custody order, for her children, compensation order, and interim/ex parte order.
THE PROTECTION OF WOMEN FROM DOMESTIC VIOLENCE
ACT, 2005
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
related with or incidental to. The incident
of domestic violence
is commonly prevalent but has remained
largely invisible in the
public domain. At present, where a woman is subjected to cruelty by her husband
or his relatives, it is a crime
under Section 498A of
the Indian Penal Code, 1860. As a result
of that, a law is proposed keeping
in view the rights guaranteed under Articles 14, 15 and 21 of the Constitution to grant for a remedy under the civil law which is intended to protect the women from being sufferers
of domestic violence and to prevent
the incidence of domestic
violence in the society. “Any act, omission or commission or conduct of the
respondent shall constitute domestic
violence when it harms or injures 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, verbal and emotional abuse and economic
abuse; or harasses, harms,
injures 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 has the effect of threatening the aggrieved person
or any person related to her by any conduct;
or otherwise injures
or causes harm, whether physical
or mental, to the
aggrieved person.
CAUSES OF DOMESTIC
VIOLENCE
There is no one single factor
to account for violence perpetrated against women. Increasingly, research has focused on the inter-relatedness of various
factors that should improve our understanding of the problem
within different cultural
contexts. Several complex
and interconnected institutionalized social
and cultural factors
have kept women
particularly vulnerable to the violence directed
at them, all of them manifestations of historically unequal
power relations between
men and women.
Factors contributing to these unequal
power relations include socioeconomic forces, the family
institution where power relations are enforced, fear of and control over female sexuality, belief in the inherent superiority of males, and legislation and cultural sanctions that have traditionally denied women and children an independent legal and social
status. Following are
1. To examine
the various forms of domestic violence in India.
2. To analyze
the data on domestic violence against women in India.
3. To suggest
some legal and suggestive measures regarding domestic violence against women in
India.
Term “Domestic Violence
against women” means
any act or conduct which has potential to injure or hurt women physically, mentally, emotionally, socially,
and also spiritually within the four walls of house, however,
such an act or conduct
is done usually
not by strangers.
In the garb of providing
protection, this legislation in fact, strikes
at the very foundation of marriage by promoting intolerance and encouraging unnecessary litigation even for petty.
domestic dispute. This law is based on a wrong notion and assumes man as the sole
perpetrators of domestic violence. This is altogether a wrong impression and
only confirms the gender bias in favor
of women created by this law. The law confers a right in favor of a woman without
imposing any liability, while the man is overburdened with discriminative liabilities with total. A Creative Connect
International Publication 105 denial of any such similar right.
The law is gender specific and rules out any possibility of domestic violence
against a man. In
the zeal of providing protection and assistance to women, this Act has given recognition and legal status
to extra-marital
relationship or other immoral relationship, which are neither recognized by our society or by our existing matrimonial and
penal law. The legislature while passing the Act did not notice that having sexual
intercourse with any person other than his or her spouse is a
ground for divorce. Even sections
24 and 25 of the Hindu Marriage
Act, 1955, which provide for maintenance pendente
lite and permanent alimony respectively do not
recognize any relationship except
that of a legally wedded
husband and wife.
Besides this section
125 of the Code of Criminal Procedure, which provides for grant of maintenance to wife, children,
father, and mother
in a broader perspective, does not recognize persons having illegitimate
relationships, entitled to claim maintenance except an illegitimate child. Section 125(4) specifically prohibits a wife living in adultery)' from claiming any maintenance from the husband
under section 125(1) of the Code of Criminal Procedure. The legislature
also did not notice that adultery is
also an offence under section 497, Indian Penal Code. So therefore, while on
one hand a man will be prosecuted for adultery, at the same time he will be compelled
to pay maintenance as well as residency rights
to a woman with whom he is alleged to have
maintained illegitimate relationship. This provision will destroy the
matrimonial relationships thereby disturbing the social fabric
of the society. Prior to this Act there was no comprehensive legislation defining domestic
violence except the offence of cruelty punishable under section 498-A,
IPC. Critics feel that the term violence should not be given such a wider
interpretation. The meaning
of the term 'economic abuse'
as given in section 3 of the Act implies
that even if a male member of family merely
misappropriates or disposes of the share of a women member of the family
i.e., movable, or immovable assets,
he may be hauled up for committing domestic violence. This meaning is against the spirit of the Act and
the basic concept of domestic violence. Again, the Act does not
distinguish between actual abuse and threat of abuse and gives equal weightage to even a likelihood of abuse. Also, regarding the notion of emotional abuses,
insults, and verbal abuse, enshrined
in the Act, the terms are extremely
relative and subjective, often depending on one's mindset
and shockingly, the husband does not have any recourse in case of any abuse by the
wife. Refusal to pay any sum of money for whatsoever reason will attract the provisions.
Section 14 of the Protection of Women from Domestic Violence
Act, 2005 contains
an extremely dangerous provision whereby the
Magistrate may order the aggrieved person to undergo counseling jointly with the respondent and any member of the
service provider. This goes against
all accepted principles of counseling. The victim, and the abuser are in an
unequal situation and no joint counseling is possible in that situation. It can only lead to the
disempowerment of the unequal party. Counseling is one of the methods of
correcting abusive behavior and
hence, it is only appropriate that the abuser and not the victim is counseled.
The victim may have the possibility
of seeking voluntary counseling. Section 16 of the Protection of Women from Domestic Violence Act, 2005
allows the Magistrate to hold proceeding in camera if either party to the proceedings so desire. But, in camera
proceedings sometime, intimidate the
aggrieved party in favor of the respondent. This is especially so when the
aggrieved party is the only woman in
the court facing a completely male phalanx of hostile, sneering Magistrates, lawyers,
officials, police, male respondent, etc. The situation is to change
this section is to allow
for in-camera proceeding not when either party so desire but only if the aggrieved party so desires. The aggrieved party should be allowed to be
accompanied by any relative/woman social worker
etc., of her choice for her moral
support. Under the Act, complaint
of domestic violence may be given to both the protection officer and the police officer
as under section
498- A of the Indian Penal
Code. Both the agencies can out their investigations respectively and submit
their reports to the Magistrate. The Act is silent
about non-compliance of some orders.
It shuts down the chance
of reconciliation in future. The major inappropriate implication would be that it would shut down the chances
of reconciliation in future. On the one hand, the Act punishes a man for forcing
his wife to leave her 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 circumstances. Under the Act,
when no eyewitnesses are available, the women will be the primary witness and her statement is considered as
circumstantial evidence, to arrive at a conclusion
on the facts of the case. This has virtually empowered all women to punish men
at their will. The slack
drafting of this,
law will allow
cunning and unscrupulous women to teach a lesson
to any of her male relatives at her sole behest. No doubt
that the Act is landmark legislation in the Indian
history and people of India welcomed the same with great enthusiasm yet, there is an apprehension in the minds
of the people about the misuse of the Act against the innocent
husband and his family members. It cannot be said in general that the troubles
and tortures of all kinds and differences.
always arises from the side of the husband and the in-laws.
The wedded woman cannot be said to be just and fair in all cases. This Act is being misused
in several cases where it is used as a weapon
by the wives and their paternal relatives
to put an innocent husband
and their relatives
to unnecessary harassment. Hence before going to apply the provisions of
the Protection of Women from Domestic
Violence Act, 2005, the concerned parties and authorities should think about the consequences of the application, so that innocent
person.
Available on ; Dodd LW. Therapeutic group
work with young
children and mothers who have experienced domestic abuse. educational Psychology in Practice
2009; 25:21-36.
Landmark domestic
violence cases in India Lalita Toppo v. the State of Jharkhand,
(2018)
Facts of the case
In
the case of Lalita Toppo vs the State of Jharkhand and Anr. (2018), which was
heard by the Supreme Court of India,
the Complainant, who was not the Respondent’s legally wedded wife, approached the Court to obtain maintenance under the provisions of the Protection of Women from Domestic Violence Act, 2005,
supposing that she will not be allowed to maintenance under Section 125 of the Code of Criminal
Procedure, 1973.
In
this instance, the Appellant was in a live-in relationship, with whom she had a
kid. When the couple got separated,
the Appellant sought support from her spouse, for which the Gumla Family Court allowed, giving her Rs 2000
per month and Rs 1000 to her child. The Appellant filed an appeal
in the High Court, which found the family court’s
ruling to be incorrect and ruled in favor of the partner.
The Appellant then went to
the Supreme Court.
Issue involved
in the case.
Whether a live-in partner
seek maintenance under the Domestic
Violence Act, 2005?
Judgement given by the Court.
In the Supreme Court,
a three-judge Bench composed of the then-
CJI Ranjan Gogoi,
Justices U.U. Lalit and K.M. Joseph observed that a live-in partner will
be obligated to even more relief than that envisaged by Section 125 of the Code of Criminal Procedure, 1973. Making reference
to the provisions of the Domestic Violence
Act, the bench noted that the petitioner in the case would have a remedy
to seek maintenance under the Act despite the fact that she is not the legally wedded wife and thus not obligated to be maintained under Section 125 of the Code of Criminal Procedure.
It was also observed
by the Court that domestic
violence, according to the provisions of the Domestic Violence Act, also includes economic
abuse.
Inder Raj Malik v. Sunita Malik,
(1986)
Facts of the case
In this case, Sunita Malik (Complainant) and her husband,
Inder Raj Mailk(Respondent), were married. To extract increased
money and articles, Complainant Sunita was treated cruelly, beaten, starved, and abused
by her husband and in-laws
after marriage, particularly during festivals.\
One day, she was tortured
physically and mentally
to the point of fainting
in her matrimonial home, but no doctor was called
for her medical checkup.
Sunita Malik was threatened by her mother
and brother-in-law with death and kidnapping unless
she compelled her parents to sell their property in Hauz Qazi.
As a result, it was discovered that the Complainant,
Sunita Mailk, was treated cruelly and physically tortured by her husband and in-laws. Sunita
Malik was harassed
in order to force
her, or anyone associated with her to meet an illegal requirement for movable and immovable property.
Issues involved in the case.
Are Section 498A of the Indian Penal Code, 1908, and Section
4 of the Dowry Prohibition Act, 1961, subject
to the Double Jeopardy provision of Article 20(2) of the Indian Constitution?
Is Section 498A of the Indian Penal Code, 1908,
ultra vires? Judgement given by the Court.
In this instance, the Delhi High Court
had to decide whether a person could
be convicted under
both Section 4 of the Dowry Prohibition Act and Section 498A of the
Indian Penal Code. The Court held that an individual can be convicted
under both Section 4 of the Dowry Prohibition
Act, 1956 and Section 498A of the IPC without facing double jeopardy. The Court
held that Section 498A,
IPC, and Section
4 of the Dowry Prohibition Act are distinct,
since, under Section
4 of the Dowry Prohibition
Act, mere demand of dowry is subject to punishment, whereas, in Section
498A, an act of cruelty
committed against a newly wedded
woman is punishable. As a result, it is possible
to conclude that a person
is subject to prosecution under both Section
4 of the Dowry Prohibition Act and
Section 498A of the Indian Penal Code.
P. Harsora
and Ors v. Kusum Narottamdas Harsora and Ors, (2016)
Facts of the case
In this case, The plaintiffs were Pushpa Narottam
Harsora and Kusum Narottam Harsora,
a mother-daughter duo. They filed a complaint against Pradeep
(son/brother), his wife, and her two
sisters, alleging that the four of them subjected them to domestic abuse. The Respondents urged the Metropolitan Magistrate to release Pradeep’s wife and
two sisters/daughters since, according to Section 2(q), a complaint may only be filed against
an “adult male.”
The Respondents’ application was denied.
The Bombay High Court ruled that Section
2(q) of the Act should be read in light of the definitions contained in Sections
2(a), 2(f), and 2(s) of the Protection of Women from Domestic Violence Act. This assured that a
complaint could be lodged against female family members as well as the “adult male member.” However,
a complaint alleging domestic abuse cannot be
brought primarily against the female members of the household. A
co-Respondent must be an adult male. As a result, the Court did not read down the term “adult
male person.” After this the mother
and daughter duo filed a writ petition
in the Supreme Court.
Issue involved in the case.
Whether females can be liable
under the Domestic
Violence Act, 2005
Judgement given by the Court.
The Supreme Court struck down adult male from the concept of
‘Respondent,’ holding that it is not founded
on any intelligible differentia having
a rational nexus with the purpose sought
to be attained. In the same instance, the Supreme Court clarified
that women and non-adults are among the people who can seek redress under the DV Act. The word “Respondent” in Section 2(q) or those who can be considered perpetrators of violence against
women/against whom remedies under the DV Act are enforceable cannot
be limited to the phrase “adult male person”
in Section 2(q). As a result, remedies
under the DV Act are accessible even against female
members and non-adults.
Sandhya Wankhede
v. Manoj Bhimrao
Wankhede, (2011)
Facts of the case
In the case of (Sandhya
Wankhede v. Manoj Bhimrao Wankhede), after getting married
in 2005, the Appellant Sandhya
lived with R1, R2, and R3 for a year, which caused
problems in her marriage. She filed a police report
against her husband
under Section 498A of the Indian Penal
Code for assaulting her. She also filed an application against all three
Respondents, which the First-Class Judicial
Magistrate granted, directing R1 to pay the monthly
maintenance. All Respondents
were also barred from trying to evict the Complainant from her matrimonial home. Criminal appeals
and applications filed by R1 before the Sessions Judge and the High Court
were denied. R2 and R3 applied to the First-Class Magistrate, but their
request was denied. They
filed an appeal, claiming that women cannot be considered Respondents in DV proceedings. The Court agreed
and overturned the order, enabling
Appellant to be evicted from her
marriage home, which was solely owned by R2. As a result, it was not a “shared
house.” However, the Court compelled R1 to offer separate lodging
or make further
payment for it as an alternative. The Appellant’s appeal
in Sessions Court was replied
based on the decision that “females” are not included
within ‘Respondents.
The HC similarly took a similar stance,
deleting R2 and R3’s names
from the proceedings and ordering the Appellant to quit the matrimonial home. Hence this appeal
was made.
Issue involved in the case.
Whether a complaint can be filed
under the Domestic
Violence Act only against an adult male
person and not against the husband’s female
relatives, i.e., mother-in-law and sister-in-law?
Judgement given by the Court.
However,
in the instance, the Supreme Court resolved the question by ruling that the
provision to Section 2(q) that does
not exclude female relatives of the husband or male partner from the scope of a complaint that can be submitted
under the Domestic Violence Act. As a result,
complaints can be filed not only against
the adult male person, but also against
the adult male’s
female relative.
Arnesh Kumar vs state of Bihar and others ,2014
Facts of the case
In this case, Arnesh Kumar (Appellant) and Sweta Kiran
(Respondent) were married
on July 1, 2007.
Sweta Kiran claimed
in Court that her mother-in-law and father-in-law sought
Rs. 8 lakhs, a Maruti car, an air conditioner, a television set, and other items, and that when this was brought to Arnesh Kumar’s attention,
he backed his mother and threatened to marry another woman. She further
claimed that she was evicted
from her matrimonial house since the dowry demand was not met. Arnesh Kumar refuted
the charges and filed an anticipatory bail plea, which was initially
dismissed by the learned Sessions
Judge and then by the High Court.
As a result, Arnesh
Kumar has filed a Special
Leave Petition with the Supreme
Court. Issues involved in the case.
1. Is it
required for a police officer to arrest someone in response to a complaint if
that person is suspected of committing a cognizable offence?
2. What
remedies are available to a person if a woman uses section 498A of the IPC to
her advantage?
3. Should the
Appellant be granted anticipatory bail?
Judgement given by the Court.
The Supreme Court granted the Appellant interim release under specific
restrictions. The Apex Court said that “Section
498A is a cognizable and non-bailable offence
and has lent it a dubious place of pride amongst the provisions that are used as
weapons rather than shield by disgruntled wives.
The simplest way to harass
is to get the husband
and his relatives arrested under this provision.” According to the “Crime in India 2012 Statistics,” 1,97,762
people were arrested
in India in 2012 for violating Section
498A of the IPC. The charge-sheeting rate in
instances under Section 498 A of the IPC is as high as 93.6%, but the
conviction rate is barely 15%. This data clearly
demonstrates how this part has been abused.
The most straightforward approach to harassment is to have the spouse
and his family
imprisoned under this clause.” To discourage unwarranted arrests of accused,
the Apex Court issued some required directives for Police to follow before
detaining a person.
Suggestions
·
Women’s vulnerability is the Root Cause; the problem
of domestic violence in India is required to be understood in the real sense.
To understand the reason behind why women become vulnerable and positioned
themselves to be exploited. Most of the women are illiterate and face a silent
violence and they are also under the pressure of tradition in society.
·
Attitudinal Change is needed among people the basic
social structure from long time in India is Patriarchal structure where we can
see a male dominated society. There is unequal distribution of power
relationship is the root cause of violent attacks. There should also be change
in the attitudes between men and women to overcome the victimization of
violence.
·
Internalization of Legal Norms with Public Consensus
Domestic violence in our country is yet held to be “interfamilial affair” and
disallow the intervention of the close relatives and outsiders and the state.
The effective implementation of any legislation has to undergo a security of
strong public consensus and acceptance in democratic processes.
·
The strong legal mandate prescribed for officers and
stake holders; the officers and institution is responsible for the more
effective implementation of Act. It is needed to wipe out the gender
discrimination, traditional relation of patriarchal society and male dominance.
·
Gender Perspective training is necessary Gender
perspective training should be mandatory by the law and is crucial for changing
the crucial mind set of patriarchal society, police, service providers, medical
practitioners, protection officers, and especially of magistrates, who often
advise women to put up with the violence and “Stop complaining”.
·
Counselling by Expertise At the pre litigation stage,
counselling to the aggrieved person for restoring self-esteem, providing
emotional support and assist her in making decision as to the initiation of
legal proceeding.
Violence
against women in the private realm is relegated to secondary status, whether in
India or in the United States. Strong laws and public policies are essential
steps toward combating such violence. But the real solution lies in a culture
shift, in the world, and in each of our homes. Apart from the above Legal
measures, the below given are some suggestive measures in context of India
which if taken in its full form may placate and curve the menace of the
domestic Violence in India.
Ø Agencies:
-A wide variety of agencies exist which offer services in cases of domestic
violence viz. Family court, Police station, Family Counseling Centre, Women’s
Commission, People’s Council for Social Justice, and religious institutions.
Ø Awareness
generation and sensitization: - Awareness about gender equality and women’s
rights should be instilled in boys and girls from a very early age in order to
bring about a change in the mindset of the future generation.
Ø Legal
literacy camps should be conducted on a regular and systematic basis at the
local community level.
Ø List of
NGOs and governmental organizations dealing with women’s issues should be made
known to the public.
Ø Health care
providers such as doctors, nurses, and other Para-medical staff should be
properly sensitized to treat women experiencing violence.
Ø Sensitization
programs should be organized for the policy makers.
Ø Counseling
Pre-marital counseling should be made compulsory post marital counseling is to
be arranged as follow-up, to
Ø Prevent
breakdown of families.
Ø Fostering
Self-Employment among Women
Ø A woman
entering into the business is not uncommon today.
Ø Judiciary
There should be a special court with a woman judge and magistrate in each
district to manage domestic violence cases.
Ø Only women
magistrates should try cases of violence against women.
Ø Mobile
courts should be introduced as an effective strategy to provide justice to the
victims of domestic violence.
Ø Law
enforcement should be done by the co-ordinate efforts of police.
Ø There
should be strict laws for the prevention of vices such as alcoholism and drug
addiction and social evils such as the dowry system.
Role of Government
Ø The
government should ensure
proper enforcement of existing laws related to women’s rights.
Ø Women should be made aware of Women’s Commission; offices of the Women’s commission should be opened at the district
and lower levels.
Ø Police should be trained
to be respectful and courteous
to women in distress.
Role of Media
Media should be used to sensitize the officials and the public about domestic violence to develop a cheerful outlook
towards women in general, and women victims,
in particular.
Conclusion
Domestic violence is not only visible, but it is a part of life of women
in India. Violence starts with her
from the day her mother conceives of her existence in the womb and since then
in every phase of her life span, she
must fight for her survival in this rude society. Most of the women in our country are illiterate and they are not aware
of the basic law provision and also about their rights, due to which most of
the time they do not register the cases against those people who violate
their rights and commit crimes
against them. Lack of awareness about the law and
rights guaranteed under that legislation for them but most serious problem is
that the women’s are not aware about
their rights which are due to traditional customs. Victims are unable
to get the legal remedies
which are guaranteed by the government for the protection of women. In our
society which is said to be tradition bound and a male dominated, women are still treated as secondary sex which makes
her to suffer the violence silently. The fact in India women is made to suffer human right abuses in a gender specific
way. She is often ignored and underestimated.
The Protection of Women from Domestic Violence Act (PWDVA), 2005 is passed by the Parliament in response to
worldwide demand for such legislation and also the outcomes of the continuous efforts
of Women Organizations working for women.
The Act gives right and
Protection to the women’s. The remedies available to the victim prior to the
PWDVA 2005 were in the form of punishment of the offender
under IPC, the civil remedy of divorce
and maintenance were not giving
her ultimate relief,
the remedies which were available
that were related to matrimonial proceeding and according with court proceeding. The statutory provision and constitutional provision were available to women, but
these provisions were insufficient and
the most important problem about it was lack of awareness about their rights
which constitution provide for the
protection of women. Domestic Violence goes beyond the boundaries of race, caste, religion, and class. In 2013
according to the Global Review Data, 35% of
women worldwide have experienced either physical and sexual intimate partner
violence or non-partner sexual
violence. However, some National Violence studies show that up to 70% of women have experienced physical or sexual
violence in their lifetime from an intimate partner.153 In New Delhi;
a 2010 study found that 66 % of women reported experiencing sexual harassment between
two and five times Dur Legal Measures
The Protection of Women from Domestic Violence Act, 2005 On 26th
October, 2006, the central govt. notified this Act in the official gazette.
The Act aims at providing protection to women from Domestic
Violence faced by them with in 4 walls of their houses.
This Act represents a major victory
for women’s rights
in India. Importantly, the new law, which criminalizes the abuse of a woman
by her spouse, partner, or other males in the household, recognizes the abused woman’s
right to secure
housing. Sections 18-23 are the soul of this Act; these sections
of the Act provide a large
number of avenues for an used women to get relief. She can get through the courts, Protection orders, residence order, monetary relief order, custody order,
for her children, compensation order, and interim/ex parted orders.
Short Stay Homes Schemes
The 13 March 2015 press
release by the Ministry of Women and Child Development states that the Ministry administers "Swadhan
and Short Stay Home Schemes," providing services for the relief
and rehabilitation of women in tricky situations including those who are victims of rape.
Woman must not accept, she must challenge. She must not be awed by that which has been built
up around her. She must respect that woman in her which
struggles for expression.
Achieving women's empowerment is not a “quick fix”. It will take sound public policies, a holistic approach and long-term commitment from all development actors. Women's empowerment is both a right and “smart economics”. In the ultimate
analysis, empowering women is
empowering society. Better
women make better homes, a better society,
and help us men to better
our best!
Article Information
CRITICAL ANALYSIS OF THE PROTECTION OF WOMEN FROM DOMESTIC VIOLENCE ACT, 2005
Authors: ANISHA KUMARI
- Journal IJLRA
- ISSN 2582-6433
- Published 2024/03/15
- Issue 7
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International Journal for Legal Research and Analysis
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