lawyers in India

The Protection of Women From Domestic Violence Act, 2005: Dawn of 1 New Era

Written by: Bharat Budholia
Immigration Law in India
Legal Service
  • Prologue
    At the very outset, I want to make it crystal clear that this article is not against the The Protection of Women from Domestic Violence Act, 2005 (hereinafter called The Act). This article only aims at bringing out the positives and negatives of this act. It is based wholly on the Utilitarian aspect ( Theory of Utility aims at pursuing that goal or make that law which aims at producing greatest happiness for greatest number of people. In our respect it means that one should should analyze the law on grounds of its goodness or badness. (Utility Theory from Jeremy Bentham to Daniel Kahneman ). Pandora's Box is what I will call this Act at this point of time as we never know where this Act will lead us to. All what is discussed under this article/project is wholly my understanding and analysis to this act which could prove out to be wide of the mark.

    Indian women have always been considered to be downtrodden section of the society. Men have always treated women like dirt under one's feet (More so in the Indian context). Deplorable has been the pathetic condition of women in Ancient India. Although, efforts were made, even in Shastras & Puranas ,to electrify and exalt the image of women by associating it with Goddess Durga. Yet, it is ironical that India became the patriarchal (The society in which a male person is considered to be the head of the family) or male-dominated society.

    Our Constitution urges for equality & dignity of all humans being. Article 15 states that state shall not discriminate against any citizen on grounds of religion, race, caste, sex, place of birth or any of them or subject them to any ?disability, liability or restriction? on that account. But even the Constitutional norms are violated without the slightest bit of hesitation. The list of crimes that are committed against women seems enormous, varying from simple harassment, physical or mental torture, to even denying the very right to exist. Article 15 (3), gives power to the legislature to make special laws for women. Exercising this power, the legislature enacted this act which deals against domestic violence. The law is yet to be implemented and therefore it seems to be a good time to scrutinize this act. The new act contains five chapters and 37 sections.

    Chapter I

    Domestic Violence: A Prologue

    Domestic of Family violence is one of the leading causes of female injuries. It primarily effects women and operates to diminish women's autonomy and sense of self-worth. Presently, domestic violence is concerned under Section 498 A of the Indian Penal Code, 1860. This section eventually proved out to be insufficient. Thus the impugned act was enacted for effective protection of the rights of the women guaranteed under the Constitution.
    Section 3 of the Act defines Domestic violence . The definition covers all the aspects of domestic violence & hence makes it almost impossible to find any flaw. According to this section, any act, omission, commission or conduct of the respondent constitutes domestic violence under this section. However, one of the safeguard provided in the Act is Explanation II which states that in order to find out whether domestic violence is present or not, the overall facts and circumstances of the case shall be taken into considerations.

    Chapter II
    Main Features of The Act
    (2) The definition of an 'aggrieved' person' is equally wide and covers not just the wife but a woman who is the sexual partner of the male irrespective of whether she is his legal wife or not. The daughter, mother, sister, child (male or female), widowed relative, in fact, any woman residing in the household who is related in some way to the respondent, is also covered by the Act

    (3) The respondent under the definition given in the Act is "any male, adult person who is, or has been, in a domestic relationship with the aggrieved person" but so that his mother, sister and other relatives do not go scot free, the case can also be filed against relatives of the husband or male partner [Chapter. I, - Sec.2(a)].

    (4) The information regarding an act or acts of domestic violence does not necessarily have to be lodged by the aggrieved party but by "any person who has reason to believe that" such an act has been or is being committed. Which means that neighbours, social workers, relatives etc. can all take initiative on behalf of the victim. [ Chapter III - Sec. 4.]

    (5) This fear of being driven out of the house effectively silenced many women and made them silent sufferers. The court, by this new Act, can now order that she not only reside in the same house but that a part of the house can even be allotted to her for her personal use even if she has no legal claim or share in the property. [Chapter IV ? Sec. 17]

    (6) S.18 of the same chapter allows the magistrate to protect the woman from acts of violence or even "acts that are likely to take place" in the future and can prohibit the respondent from dispossessing the aggrieved person or in any other manner disturbing her possessions, entering the aggrieved person's place of work or, if the aggrieved person is a child, the school.

    (7) The respondent can also be restrained from attempting to communicate in any form, whatsoever, with the aggrieved person, including personal, oral, written, electronic or telephonic contact" . The respondent can even be prohibited from entering the room/area/house that is allotted to her by the court.

    (8) The Act allows magistrates to impose monetary relief and monthly payments of maintenance. The respondent can also be made to meet the expenses incurred and losses suffered by the aggrieved person and any child of the aggrieved person as a result of domestic violence and can also cover loss of earnings, medical expenses, loss or damage to property and can also cover the maintenance of the victim and her children.

    (9) Sec.22 allows the magistrate to make the respondent pay compensation and damages for injuries including mental torture and emotional distress caused by acts of domestic violence.

    (10) Sec.31 gives a penalty up to one year imprisonment and/or a fine up to Rs. 20,000/- for and offence. The offence is also considered cognisable and non-bailable.

    (11) Sec. 32 (2) goes even further and says that "under the sole testimony of the aggrieved person, the court may conclude that an offence has been committed by the accused"

    (12) The Act also ensures speedy justice as the court has to start proceedings and have the first hearing within 3 days of the complaint being filed in court and every case must be disposed of within a period of sixty days of the first hearing.

    (13) It makes provisions for the state to provide for Protection Officers and the whole machinery by which to implement the Act.

    (14) The act enuciates the certain duties of central and state government to make wide publicity & training programs for the police officers.

    (15) The Act also provides for the assistance of welfare experts if found necessary by the Magistrate.

    (16) The Act also provides for the penalty for not discharging duty of Protection Officer.

    Chapter III

    Can This Act Be Misused?

    Misuse of the act, like all such acts in India , cannot be ruled out. In fact, with a system as corrupt as ours, money, clout and muscle power will always call the shots. And as long as the woman stays a puppet or pawn in the hands of her male relatives, she will always be manipulated and used. The chances of the act being misused are enormous. We have seen in past how The Dowry Prohibition Act, 1961 has been misused from the side of the so-called aggrieved person.
    The definition of Domestic Violence is too wide for my liking. How can the court ensure that the complaints of the affected party is right or not. The presence of the Malafide intentions on part of one party to harass the other cannot be ruled out.

    Sometimes in camera proceedings can protect the aggrieved woman from a lot of humiliation and shame especially in cases where explicit acts of sexual abuse and violence are being discussed in an open court and it allows for her dignity and privacy to be maintained. But, we have also seen trials where the in camera proceedings only intimidated the aggrieved in favour of the respondent. This is especially so when the aggrieved is the only woman in court facing a completely male phalanx of hostile, sneering magistrates, lawyers, officials, police, male respondent etc. The solution is to change this section to only allow for in camera proceedings. Not when either party so desires but only if the aggrieved party so desires. Also, the aggrieved party should be allowed to be accompanied by any relative/woman social worker etc. of her choice for moral support.

    There is also a doubt as to whether this Act can be thoroughly implemented by the administrative bodies. Can the Police, Protection Officers and NGO's do there work efficiently. · But there is no doubt that with this Act a whole Pandora's Box of litigation will be thrown open and all the degradation, brutality and cruelty to women that has been carefully swept under the carpet for centuries in our 'old, rich heritage and civilization' is all going to be exposed - and about time.

    Will This Act Change The Mentality Of The Indian Society?

    The Act can be called as the budding steps in the field of Women's emancipation. There is a hell lot of steps to be taken fir prevailing complete justice. In my view as long as the mentality of the Indian male class is changed, the women can never come up.

    Who Are The Real Victims?

    Is it the rural women or is it the urban women who are the real victims. In my view, it is the rural women who are victims of domestic violence more than the urban women. The Act should is to be implemented effectively in rural areas so as to make it successful. The government should ensure for a wide publicity in these areas through every means possible.

    The bourgeois system whereby women, especially poor working women are doubly enslaved, cannot offer any long-term solution for the emancipation of women or their freedom from violence. It is only socialism that can truly emancipate women by not only making her equal under law and giving her every legal protection but, far more important, reversing the injustices of the past thousands of years by socializing the means of production, bringing the woman back into social production and decision-making, freeing her of her domestic enslavement by the state taking responsibility through crèches, community kitchens, old-peoples' homes etc. Am I against the Act No, not at all. But its limitations must be kept in mind. Within the existing unjust and unequal bourgeois system here is an act of legislature that gives oppressed women some respite, but a very temporary one as it will not end the hypocrisy of bourgeois monogamy. Hopefully, the contradictions will be so heightened that society will have to go in for more long-lasting solutions. According to Karl Marx, when the thesis (female society) will clash with the anti-thesis (Male Society) then there will be formation of Anti-thesis (equality).

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