Reflection on Domestic Violence Act 2005 and Role of Judiciary for Balancing the Rights of Women

Reflection on Domestic Violence Act and Role of Judiciary

Introduction

I would like to begin the article with a quote of Justice S Rajendra Babu, the then Chief Justice of India, who in his speech on Gender Justice – Indian Perspective^[1] said as follows:

“Sita was not born, but found, and after marriage, exile, agnipariksha and abandonment was her lot. Yet there is not a single temple to Sita, and Rama is adored as the ideal man — Maryada Purushottama — Adarsha Purusha. Women get nothing being Sitas. Let us look for Durga and Kali in them.”

International Documents, i.e. Covenants, Chargers, Declarations and Treaty, etc.

The United Nations developed its policy on domestic violence in 1981. Pursuant to the International Covenant on Economic, Social and Cultural Rights (ICESCR), which came into force in the year 1976, the Convention on the Elimination of All Forms of Discrimination Against Women came into force. However, this convention did not in unequivocal terms include violence against women or domestic violence, and therefore, in 1992, a Committee on the Elimination of Discrimination Against Women was formed. United Nations’ document A/47/38 was promulgated in 1992. In 1995, at the Fourth World Conference on women in Beijing, China, the topic of domestic violence and responsibility for domestic violence was taken into account. In 2000, a special session on women was conveyed by the United Nations known as Beijing +5 which dealt with the topic of domestic violence as the focal point and it was given priority. There was a report of Radhika Coomaraswamy, belonging to Sri Lanka, who was appointed as Special Rapporteur on violence against women and her report addressed domestic violence at length and model legislation of domestic violence was included. Thus, international and regional human rights conferences directed the States to take reasonable steps to prevent violence on women and to ensure that the victim was given adequate compensation, notable conferences are mentioned herein below:

1. Human Rights and Women – Universal Declaration of Human Rights.
2. The United Nations Convention on the Elimination of Discrimination against Women, 1967.
3. The United Nations Convention of the Elimination of All Forms of Discrimination Against Women, 1979 (CEDAW) – Vienna Declaration.
4. Universal Declaration of Human Rights, 1948.
5. United Nations World Conference on Human Rights, 1993 (Vienna Declaration and Programme of Action)
6. Convention on the Elimination of All Forms of Discrimination against Women, 1979.
7. Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 1984.

First World Conference on Women, Mexico, 1975

As early as the United Nations re-affirmed the faith in fundamental human rights, it claimed about equality, dignity and rights of women in Article 6 of Declaration of elimination of discrimination against women in 1976, advocating the principle of non-discrimination. Article 6 directs the state parties to make provisions for civil and criminal law to combat all forms of exploitation of women. Later on, immediately after six years of Convention, punishment of crime on the basis of discrimination against women was issued in the 1973 Charter. Thereafter in 1979, Convention against Elimination of All Kinds of Discrimination against Women was passed by the United Nations. Domestic violence is pre-dominating part of the human rights and is violative of human rights, and therefore, all the National Commissions for Women Act of 1996 emphasised on the protection of civil rights of women and the United Nations Charters Convention also made basis of legislative law enacted in the year 2005.

Constitution of India and Women Empowerment

In view of the rights guaranteed under Article 14, 15 and 21 of the Constitution of India to provide for a remedy under the civil law, which is intended to protect the women from being victim of domestic violence and to prevent the occurrence of domestic violence in the society, the Constitution placed a great insight and farsightedness in incorporating various provisions for safeguarding the women. The Constitution in Article 15(3) lends helping hands to the women and children by incorporating that nothing would prevent the State from legislating any provisions for women and children. This shows that Article 14 prohibits discrimination of any kind but Article 15(3) encourages the affirmative discrimination in favour of women. The constitutional philosophy has inspired bringing special legislation intended to eradicate the evil prevailing in the society. The Constitution has been interpreted by the Supreme Court of India which can be said to be bold innovation in administrative constitutional cannons in favour of the women. In a recent decision in Mangat Mal v. Punni Devi[2], the Supreme Court has taken within its compass the provisions of residence along with the maintenance. The recent decision of the Supreme Court was in State of Rajasthan v. Hat Singh[3], which prohibited “Sati”.

Reports of Law Commission of India on Violence against Women

Since 1986, the Law Commission of India has been of the view of legislating the law on domestic violence. It has suggested piecemeal amendments in different legislations like Hindu Marriage Act, 1955, Evidence Act, amendment in Code of Civil Procedure and Criminal Procedure Code and also the latest being recommending the law for Protection of Women from Domestic Violence Act, 2005.

Working of the Act

This topic would cover the provisions of the statute which is sought to be discussed namely, the definition of term “Domestic Violence”, incorporated in Section 3 of the Protection of Women from Domestic Violence Act, 2005  takes within its sweep mental or physical harassment or injury or even endangers the life of the aggrieved person and also the sexual abuse, verbal and emotional abuse and even economic abuse to the injured or anyone else related to her. It even takes within its sweep the demand for any dowry or any other property or valuable security. The definition also includes threatening by any conduct mentioned in clause (a) or (b) of the Act. The legislative intention was to stop male dominance.

Chapter 4 is the most important chapter of the Act. Section 12 empowers the Magistrate and other courts adjudicating the matter. Beginning with the application to the Magistrate, counseling as per Section 14 and the welfare expert can also be taken into confidence. The most important Section is S.17 which provides for right to residence in shared household, and therefore, the Magistrate and the court would have wide powers to pass interim orders to protect the women. However, all these are discretionary powers given to the judicial officers, and therefore, the role of Magistrate becomes very much important and the judiciary is made the custodian of the protection of the rights of the women. Section 23 is also very important as it relates to interim orders, which can be passed by the judicial officers. All these reliefs can also be collaterally agitated before the court where either other proceedings are pending and there would be in addition to and as narrated above, the rights, which are given to a destitute lady would take within its sweep, residence orders, compensation orders and other custodial orders, which would be for the benefit and the protection of the disturbed lady.

Section 29 prescribes appeals against the orders could be made within 30 days from the date of the order of the magistrate and served to the other party.

Section 31 prescribes penalty for breach of order by the respondent. Therefore, execution becomes very easy, non-cumbersome and the most important factor is that the punishment prescribed would be treated to be an offence as per Section 31 and would be non-bailable, giving sole powers to the aggrieved persons.

Critical and analytical view overview of the Act

The Supreme Court in Hiral P. Harsora v. Kusum Narottamdas Harsora^[4] has held that:

“(i) A cursory reading of the statement of objects and reasons makes it clear that the phenomenon of domestic violence against women is widely prevalent and needs redressal. Whereas criminal law does offer some redressal, civil law does not address this phenomenon in its entirety. The idea therefore is to provide various innovative remedies in favour of women who suffer from domestic violence, against the perpetrators of such violence; (ii) It is not difficult to conceive of a non-adult 16 or 17- year-old member of a household who can aid or abet the commission of acts of domestic violence, or who can evict or help in evicting or excluding from a shared household an aggrieved person; (v) The impugned judgment of the Bombay High Court was set aside and it was declared that the words ‘adult male’ in Section 2(q) of the Act, 2005 will stand deleted since these words do not square with Article 14 of the Constitution of India. Consequently, the proviso to Section 2(q), being rendered otiose, also stood deleted.”

In Krishna Bhattacharjee v. Sarathi Choudhury^[5], the Supreme Court has held that the 2005 Act has been legislated, as its Preamble would reflect, to provide for more effective protection of the rights of the women guaranteed under the Constitution who are victims of violence of any kind occurring within the family and for matters connected therewith or incidental thereto. The 2005 Act is a detailed Act. The dictionary clause of the 2005 Act, which we shall advert to slightly at a later stage, is in a broader spectrum. The definition of “domestic violence” covers a range of violence which takes within its sweep “economic abuse” and the term “economic abuse” as the provision would show, has many facets.

In Deoki Panjhiyara v. Shashi Bhushan Narayan Azad^[6], the Supreme Court has interpreted and defined the object of the Protection of Women from Domestic Violence Act, 2005, Section 12 vis-a-vis Hindu Marriage Act, 1955, Section 11. In this case, on application, interim maintenance was granted by Trial Court, affirmed by Sessions Judge and against which, writ was filed by husband before High Court and also revision application by husband that the marriage between the appellant and the respondent was null and void. The High Court held that the appellant was not the legally wedded wife of the respondent and she was not entitled to maintenance granted by the learned lower courts. The Supreme Court on appeal by the appellant-wife held that in the present case until the invalidation of the marriage between the appellant and the respondent is made by a competent court, it would only be correct to proceed on the basis that the appellant continues to be the wife of the respondent so as to entitle her to claim all the benefits and protection available under the Domestic Violence Act, 2005 and held that the interference made by the High Court with the grant of maintenance in favour of the appellant was not justified and, hence, the Supreme Court had set aside the order of High Court.

The Supreme Court also held that if according to the respondent, the marriage between him and the appellant was void on account of the previous marriage between the appellant and Rohit Kumar Mishra, the respondent ought to have obtained the necessary declaration from the competent court in view of the highly contentious questions raised by the appellant on the aforesaid score. It is only upon a declaration of nullity or annulment of the marriage between the parties by a competent court that any consideration of the question whether the parties had lived in a “relationship in the nature of marriage” would be justified. In the absence of any valid decree of nullity or the necessary declaration, the Court will have to proceed on the footing that the relationship between the parties is one of marriage and not in the nature of marriage. We would also like to emphasise that any determination of the validity of the marriage between the parties could have been made only by a competent court in an appropriate proceeding by and between the parties and in compliance with all other requirements of law. Mere production of a marriage certificate issued under Section 13 of the Special Marriage Act, 1954 in support of the claimed first marriage of the appellant with Rohit Kumar Mishra was not sufficient for any of the courts, including the High Court, to render a complete and effective decision with regard to the marital status of the parties and that too in a collateral proceeding for maintenance.

This view is too harsh on the husband where courts have held the women not to be legally wedded wife. The decision of the Supreme Court requires rethinking.

The Supreme Court in S.R. Batra v. Taruna Batra^[7] has held that a wife can seek alternative accommodation for the said accommodation can be sought from the husband but not the relative of the husband. The said decision has been reconsidered and a different view has been there by the Supreme Court in Satish Chander Ahuja v. Sneha Ahuja^[8], wherein the view has been that the wife can claim even from the other members of the family and directed the Trial Court rather the Family Court to proceed further and decide the same. The reason for discussing this judgment goes to show that the Court once again interpreted the statutory scheme of the protection of women from Domestic Violence Act, 2005. The Court has felt that there is rampant violence to the women and the remedies were limited before 2005. The Supreme Court in the latest decision of Satish Chander Ahuja case[9] has enlarged the scope of matrimonial home. The decree of the Trial Court was set aside by the High Court and the order was remanded for fresh adjudication. The author has been very critical about remand of the matters but this was a case which was arisen from interim relief. A reference to the judgment in Neelam Gupta v. Mahipal Sharan Gupta^[10], goes to show that in the matrimonial matters, the Court has held that women would be entitled to a shared residence in lieu thereof husband should provide her with a suitably reasonable accommodation. The protection order was granted but disposed of way back on 17-6-2008 by Mahila Court. The Supreme Court disposed of the appeal with certain directions as the matter was mediated and the parties have decided to part away by filing a petition under Section 13-B of the Hindu Marriage Act. This shows that mediation is an alternative remedy applicable to such litigation also. The decision of the Supreme Court in Aishwarya Atul Pusalkar v. Maharashtra Housing & Area Development Authority^[11] goes to show that the Court has interpreted the term “shared household” and by alienating any immovable assets would defeat right of a victim lady which would be described as domestic violence. The Court again reiterated and directed the lower courts to take proper decision as the lady was permitted to retain the possession of the residential accommodation and pay the rent and the Housing Board was directed not to disturb her residence.

It goes without saying that in Shyamlal Devda v. Parimala^[12], the Court has once again reiterated that provisions of Section 482 of CrPC can be invoked for quashing the complaints under the Domestic Violence Act. The person aggrieved has been explained and the maintainability of the complaint makes it clear that domestic violence complaint can be lodged or filed in the Court where the person aggrieved permanently or temporarily resides or carries out his business or is employed. Objections, so as to challenge the jurisdiction of the Metropolitan Court of Bangalore, were turned down against the husband and parents-in-law.

Recently in P. Rajkumar v. Yoga[13], the overlapping of Section 125 Cr.P.C with Domestic Violence has been considered which has been reiterated by the Supreme Court in Lalita Toppo v. State of Jharkhand^[14]. The Supreme Court has laid down the guidelines for determining compensation in matrimonial cases in recent decision in Amarendu Jyoti v. State of Chhattisgarh^[15]. Thus, it goes to show that the courts have been zealous in interpreting the Act so that the object is satisfied.

Also refer to Saraswathy v. Babu^[16], Indra Sarma v. V.K.V. Sarma^[17], Rupali Devi v. State of U.P.^[18], Ajay Kumar v. Lata^[19], Sangita Saha v. Abhijit Saha^[20], Reema Aggarwal v. Anupam^[21], and Madhu Kishwar v. State of Bihar^[22] and Hira Lal v. State (Govt. of NCT) Delhi^[23]; these judgments dealt with Dowry Prohibition Act, 1986. This was the time when the Supreme Court proved that the law was inadequate.

All these decisions are related to domestic violence. As mentioned earlier, judgment of the  Supreme Court holding that the wife would have the right of maintenance which would partake even it the right to residential home.

Any other related points

This law works in addition to other laws and does not make the existing pre-2005 legal regime redundant. Instead, it recognises the need for relief to be granted as a basic minimum to provide women with a violence-free space from which they can negotiate their future from a position of equality. Hence, the nature of relief is emergency and temporary in nature; the permanent solution still remains in the realm of personal laws under which a woman would have to decide on whether or not to continue the relationship. In doing so, the PWDVA makes a first but significant step towards achieving the goal of equality.

The next question to be answered was how a woman would access these reliefs. Going to a court is a traumatic process for most people, women being no exception. In addition, there are other constraints such as stigma attached to litigating against one’s own family, the lack of wherewithal to access the courts and difficulties in getting orders enforce. It was essential to address these concerns by providing mechanisms within the law. The office of the “Protection Officer” was therefore instituted under the law. The protection officer has a twofold duty; first, to assist the woman in accessing the court and other support services (such as legal aid, medical facilities, shelter homes, etc.) and second, to assist the court during the course of the proceedings and in the enforcement of orders.

Suggestions

There appears to be wide divergence in the kind of orders that are being granted by magistrates across the States. One commonality being that the major users of the law are married women and the most commonly granted orders are for maintenance. This is perhaps due to the fact that magistrates are accustomed to granting maintenance orders under Section 125 of the Criminal Procedure Code, 1973. It is, however, heartening to note that in a number of cases, widows and aged mothers, who hereinbefore were not covered, have been able to obtain favourable orders, particularly residence orders. There are also diverse trends in the nature of the orders being claimed by women, for instance in Rajasthan, where women have mostly claimed orders for restoration into the shared household whereas in Kerala, many women have sought orders directing the men to stay away. It is, however too early to ascribe reasons behind such divergent practices.

The purpose of the Act is to give protection to the aggrieved woman from domestic violence keeping in view the intention of the legislature in passing the Act that minor procedural discrepancies do not disentitle the complainant from seeking the relief.

Conclusion

The genesis of the legislation along with the other legislations on the subject was, as can be seen necessitated by the harassment which was faced by women. At times, the maintenance would not be enough. The provision of matrimonial homes had not been discussed. The main purpose of this legislation is equality before law and equal protection of laws regardless of religion, caste, community and faith. Difficulties which arise at times with complaints under Domestic Violence Act are also felt and if the entire family is sent to jail without there being pre conciliations, the role of the Judge becomes very important so as to see that the family does not suffer what can be said to be irretrievable breakdown of marriage. The Act has been strictly interpreted recently in the judgments which are analysed by the undersigned. The provisions of Indian Evidence Act had been made applicable but the overriding effect is there, so as to give primacy to the Act. There is radical approach which is required to be taken by the family courts as they are under an obligation to see that matrimonial rights and obligations of the women are fulfilled. The jurisdictional aspect also requires to be seen as litigation under the Domestic Violence Act goes to the Magisterial Court whereas for other maintenance, divorce, restitution of conjugal rights, the parties have to go to the Civil Court or the Family Court as the case may be. This also requires to be looked into by the legislation.

* Judge, Allahabad High Court   

^[1] (2002) 5 SCC J-1.

[2] (1995) 6 SCC 88

[3] (2003) 2 SCC 152

^[4] (2016) 10 SCC 165

^[5] (2016) 2 SCC 705

^[6] (2013) 2 SCC 137

^[7] (2007) 3 SCC 169

^[8] 2020 SCC OnLine SC 841

[9] 2020 SCC OnLine SC 841

^[10] 2020 SCC OnLine SC 422

^[11] 2020 SCC OnLine SC 408

^[12] (2020) 3 SCC 14

[13] 2019 SCC OnLine SC 1825

^[14] (2019) 13 SCC 796

^[15] (2014) 12 SCC 362

^[16] (2014) 3 SCC 712

^[17] (2013) 15 SCC 755

^[18] (2019) 5 SCC 384

^[19] (2019) 15 SCC 352

^[20] (2019) 18 SCC 81 : 2019 SCC OnLine SC 559

^[21] (2004) 3 SCC 199

^[22] (1996) 5 SCC 125

^[23] (2003) 8 SCC 80