ISSUE OF DOMESTIC VIOLENCE AND THE LEGAL SAFEGUARD
Author: Md. Zeeshan Ahmad, III year of B.A.,LL.B.(Hons.) from Faculty of Law, Jamia Millia Islamia University
Co-author: Sarthak Gaurav, IV year of B.A.,LL.B.(Hons.) from South Calcutta Law College, Calcutta University
Domestic violence is a socio-legal problem, which refers to the abuse committed within four walls of the room by intimate partners. The issue is not gender specific; nevertheless, the term, in general, connotes the abuse committed upon females by their male partners. Most of the domestic violence inflicted on women takes place in matrimonial homes due to a large number of factors.
Many times it could be linked to the demand for dowry even though legislation prohibiting it was passed a long time back in 1961 (Dowry Prohibition Act). The fundamental of all factors leading to domestic violence remains, however, the patriarchal mindset of curtailing rights and liberties of women. Even though the issue of domestic violence is not new, its seriousness compels us to rethink its causes and the laws available to tackle this problem.
LEGISLATIVE FRAMEWORK TO COUNTER DOMESTIC VIOLENCE
Before the enactment of the Protection of Women from Domestic Violence Act 2005 (hereinafter PWDVA), the term domestic violence shadowed in section 498A and 304B of the Indian Penal Code (hereinafter IPC). However, the term was not formally defined there, but the legislative intent was quite reflective of the issue, given the nature of offences these two provisions dealt with.
Section 498A which deals with 'cruelty by husband or relatives of husband' was inserted in the IPC in 1983 by the Criminal law (Second Amendment) Act, 1983, when the authorities realized that more stringent provision is required to deal with, in matters of violence against married women.
Section 498A endeavours to prevent torture to a married woman by her husband or by his relatives to concede unlawful demands of dowry.[i] The provision punishes the husband or the relatives of the husband of a woman with imprisonment for a term, which may extend to three years along with a fine, if she is, subjected to cruelty.
The offence of dowry death has been inserted in the IPC as section 304B by the Dowry Prohibition (Amendment) Act, 1986, to curb the growing atrocities against women, where thousands of young women were being done to death due to failure to pay up the dowry demands. This section defines "dowry death" and provides for the punishment of the same.
Where the death of a woman is caused by any burns or bodily injury or under other extraordinary circumstances, within seven years of marriage, and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or by any relative of her husband in connection with, any demand for dowry, such death shall be called "dowry death" and such husband or relative shall be deemed to have caused her death.
The punishment for dowry death is imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life. Section 304B of IPC imposes a presumption of guilt towards the accused. This was done by simultaneously amending the Indian Evidence Act, 1872. Section 113B of the Evidence Act provides for presumption as to dowry death. Thus, it is the duty of the accused to disprove the claims of prosecution if he wants to walk free. Given this fact, the provision could be considered more stringent. Sections 498A and 304B of the Indian Penal Code are not mutually exclusive to each other.[ii]
After the perusal of both penal provisions, one can easily infer the fact that the meaning of domestic violence was narrowly construed by our lawmakers and it was restricted only to dowry related violence. Continuous struggles by women's groups changed the scenario. Our lawmakers realized the fact that domestic violence has a much larger ambit and the laws required to counter it needs to be more comprehensive. Subsequently, PWDVA was passed by the parliament in 2005.
PWDVA was passed by the parliament with a more comprehensive framework to protect and provide relief to women from domestic violence inflicted upon them in different spheres of their social life. Under the act, domestic violence, for the first time, was categorized and defined, namely into physical, sexual, verbal and economic (section 3 of the act). The act aims to provide compensation and support to the women and not intended to penalize the perpetrator primarily. The only exception in this is the violation of court orders under section 31 of the law; about the protection of complainant and sharing of accommodation or other directions.[iii]
Even though the new law is framed to guard women from domestic violence committed by adult male 'respondents', an aggrieved wife can also 'file a complaint against relatives' including female relatives of the husband. A victim also has the right simultaneously, to file a complaint under section 498A of the IPC.
The new act goes beyond section 498A of the IPC and extends protection to wives, sisters, mothers, daughters, single women and even to female live-in partners. The law empowers the Court to stop any further acts of domestic violence on the women or her children. The act ensures that an aggrieved wife is not harassed for lodging a case against the accused, by providing for the right of the woman to live in her matrimonial or shared household peacefully, her right to property in which she is residing, and stops any disposing of the house without the permission of the court.
The law also makes a provision for positive entitlement through an interim monetary relief order related to
Maintenance for the victim or her children, compensation for physical injury including medical expenses,
Compensation for mental torture and emotional distress,
Compensation for loss of earning,
Compensation for loss caused by destruction, damage, removal of any property from her possession or control.
Thus, the Act for the first time extends beyond the framework of mere 'punishment' to the offender of a crime and tries to assist and protect women from violence at home.
The civil relief under the Act is designed so, as to end the violence immediately and they are like emergency relief – "Stop Violence" orders. The law intends to give women facing domestic violence a space from violence where they can evaluate their options and choose their future course of action. It is immediate and emergency law. PWDVA creates three basic rights for victims of domestic violence: to be protected from violence, to reside in a shared household, and to seek and secure monetary relief.
The creation of an official cadre called Protection Officers (POs) and recognition of NGOs, as Service Providers (SPs) are two other salient features of the new law. The POs and the SPs will provide free legal, medical, shelter and other assistance to the aggrieved woman. The POs can be penalized for failing to discharge his/her duty with the permission of the state government. Besides, the law takes into account the issues like speedy justice and easy accessibility to justice. One of the most significant features of the act is that it is a gender-specific enactment; hence, the only woman can avail of the provisions of this act. The act clearly defines an "aggrieved person as any woman who is, or has been, in a domestic relationship with the respondent and who alleges to have been subjected to any domestic violence.... "
This has been a controversial feature of the act, subjecting it to legal challenges to its Constitutional validity. Delhi High Court rejected the argument that this act is the ultra vires to the Constitution of India because it provides protection only to women and not to men.[iv]
Women are the soft target for suppressed and unlawful activities in different spheres of social life. There exist fundamental human rights of women to live a dignified life free from violence. Domestic violence violates those rights. The patriarchal mindset, which subjugates women often, culminates into domestic violence. The masculinity of the society finds it difficult to digest any sort of behaviour, which is for their right, dignity and honour. We have a definite set of the legal framework to tackle this problem as discussed above. PWDVA defines the term broadly, which was not there before it. The definition is significant as it shapes the response from authorities and lessens the ambiguities. To tackle a problem, one needs to understand what the problem is. Similarly, tackling domestic violence requires a solid understanding of what constitutes it. PWDVA stipulates a logical relief mechanism for victims of domestic violence. However, domestic violence is a socio-legal problem, requiring a twofold response. Only laws cannot salvage the women from this curse. Society needs to be more sensitive towards women. The sacredness of the institution of marriage and family cannot be used to inflict abuse on the female.
[i] BS Joshi v. State of Haryana, (2003) 4 SCC 675 (India).
[ii] Shanti v. State of Haryana, (1991) SCC (1) 371 (India).
[iii] Radhaben Vashrambhai Patel v. State of Gujarat, Guj., Special Criminal Application No. 1825 of 2012 (India).
[iv] Aruna Pramod Shah v. Union of India, (2008) 102 DRJ 543 (India).