This Article is written by Raja Kumar (3rd year, B.A.LL. B Central University of South Bihar)
INTRODUCTION
A human being cannot survive without personal liberty. Personal liberty is in the entire agreement of rationality and morality which enable a man to chalk out his own life in the manner he likes best. This liberty is not only written on a piece of paper, but it must manifestly appear in practicality, and women shall not be considered as an outsider of this line. Women should be given the opportunity to achieve the maximum development of their personality and dignity in society.
In our society women are considered as the denizen of the particular house whether it is their father’s house or husband’s house. As we are living in the 21st century but the development and globalization are still not fully addressed the scale of women’s respect. Many revolutions and terms have taken place to recognition of women’s deep admiration like the French revolution, Republican Motherhood, Charlotte Temple, MeToo, Nari Mukti Sangharsh Sammelan and etc.
In this context Samantha Power[1] once rightly said, “Violence against women isn’t cultural, it’s criminal. Equality cannot come eventually, it’s something we must fight for now.” and it seems very practical when we talk about domestic violence, and after making the connection we must ask the question to ourselves is whether we treat the women as they expect from us? Whether we look at them through the lens of human rights? Why are women forced to accept counselling jointly with their tormentors? Why is a woman subjected to cruelty by her husband or his relatives? How a civil law addresses this phenomenon? and many more questions.
Today also like how the world has changed but the borders of equality, freedom, equity, good conscience are still lying between male and female and that has become a hindrance to the growth and development of women because it seeks to cap the flow of them. These borders build walls and are thus retrogressive. we, who live in India, which is still a developing nation, a multi-ethnic, multi-cultural, multi-religious, pluralistic society, where women are also an integral part of this, are not conscious of this reality. To challenge these walls, to ensure the rights of women many laws have been made to enable them to deal with the complexity happening with them. And Protection of Women From Domestic Violence Act, 2005 is one of them.
Domestic Violence
When women become victims of oppression and exploitation within the family, sometimes by the husband, and sometimes by the husband’s relatives, in some form like Inflicting physical pain such as beating, pushing, stumbling, hitting with an object, injury, or danger to life, limb, health, safety or causing physical pain in any other way comes under physical violence. And this bodily harm is done to women within the marriage life is considered domestic violence against women.
Today as we are living in an advanced wavelength of time and it shapes Domestic Violence in a wide manner, now not only physical violence but Pornography from wife, Banned her from going home and to obstruct from studying, To insult, not bearing the expenses of children, Mental torture, etc comes under Domestic Violence[2].In other words, Domestic violence is the form of bodily, sexual, verbal, emotional, and financial abuse of a woman by her partner or partner’s family members.
According to a report by the United Nations Population Fund, about two-thirds of married women in India are victims of domestic violence, round about 70 per cent of married women in the age group of 45 to 49 are victims of beating, rape, or forced sex[3].
Why Domestic Violence Act, 2005?
A large number of cases of dowry death (7045) and cruelty and torture (109238) were reported by the National Crime Record Bureau 2020 in India[4].
To restraint those offences there were (still existed) many domestic violence laws in India. Like, Dowry Prohibition Act, 1961, Section 498A and Section 304Bof the Indian Penal Code, 1872 under which a victim could approach the court and demand justice where this section punishes a husband and his relatives for the torturing of the wife.
But this section only deals with a certain set of offences dealing with cruelty to married women. All other situations of domestic violence are not dealt with. So, to ensure this a new act was need of the hour and to ensure this the legislature passed and enacted THE PROTECTION OF WOMEN FROM DOMESTIC VIOLENCE ACT, 2005.
The Crux of The Act
The Act, (protection of women from domestic violence act,2005) gives a more effective and practical shield of the rights of women insured under the constitution of India, 1950. It furnishes the rights of women to secure housing. It also provides for the right of a woman to reside in her matrimonial home or shared household, whether or not she has any title or rights in such home or household. It includes those women who are or have been in a relationship with abusers where both parties have lived together in a shared house and are related by consanguinity, marriage, or through a relationship like marriage or adoption[5]. This Act is for protective commands and the same is not concerning any offence there is no bar for the continuation of any proceeding under the act whether it is a criminal proceeding, civil suit, and other matters concerning Hindu marriage are pending[6]. Not only that, an aggrieved person or on her behalf a Protection Officer or service provider can request a person in charge of a shelter home or a medical facility to provide shelter or medical aid to her as mentioned in section 8 of this very act.
As it is known from the name of the act itself that this act was made to protect women from acts of domestic violence in the household (living-relationship included). This Act defines domestic violence in a well-written and comprehensive and holistic manner. There are some specific definitions for the following:
Aggrieved Person
It means any woman who is, or has been, in a domestic relationship with the respondent and who alleges to have been subjected to any act of domestic violence by the respondent. As per section 2, the victim can file a complaint of domestic violence against the abuser, whether she is married or in a relationship in the nature of marriage[7].
The Supreme Court in the case of D. Velusamy v. D. Patchaiammal[8], mentioned certain requirements like
- The couple must hold themselves out to society as being wife and husband, They must be of legal age to marry,
- They must be otherwise qualified to enter into a legal marriage, including being unmarried,
- They must have voluntarily cohabited and held themselves
- out to the world as being wife and husband to spouses for a significant time.
Domestic Relationship
This indicates a relationship between two persons who live or have, at any point of time, lived together in a shared household, when they are related by consanguinity, marriage, or through a relationship like marriage, adoption or are family members living together as a joint family[9].
Respondent
This means any adult male person who is, or has been, in a domestic relationship with the aggrieved person and against whom the aggrieved person has sought any relief under this Act:
Provided that an aggrieved wife or female living in a relationship like marriage may also file a complaint against a relative of the husband or the male partner[10].
In the case of Ajay Kumar v. Lata[11], it was held that An aggrieved wife or a female living in a relationship like marriage may file a case against not just her husband or male partner but may also seek protection against a family member or a relative of the husband or the male partner, covered under the provisions of section 2(Q) of the Protection of Women from Domestic Violence Act, 2005.
Domestic Violence
Any act, omission, or commission, or conduct of the respondent shall constitute domestic violence in case it—
(a) 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
(b) harasses, harms, injures, or endangers the aggrieved person 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
(c) has the effect of threatening the aggrieved person or any person related to her by any conduct mentioned in clause (a) or clause (b); or
(d) otherwise injures or causes harm, whether physical or mental, to the aggrieved person.”[12]
Section 20 of this act talks about Monetary reliefs further, it says that the defendant has to provide relief to the victim for damages, including income, medical expenses, the loss caused due to the destruction, damage or removal, and any expenses caused by damage to property from the maintenance of the victim and her children. Apart from that many more sections are mentioned there in the act.
The CATCHPHRASE
Marriage is the ground of civilized society. Once the relationship is formed, the law comes forward and binds the parties to various obligations and liabilities thereunder. Marriage is an institution whose maintenance is deeply interested in the public. It is the base of the family without which no civilization can exist[13]. And to better serve this purpose a woman should have an equal right to the matrimonial house. A woman should not face her husband’s uncontrollable anger as well as verbal or physical fights. Home is supposed to be a safe place or haven for a woman. She should not be thought of as a liquor bottle used for intoxication and broke it as soon as the intoxication came off.
Where She Get Help
All forms of violence against women come under the purview of the Domestic Violence Act 2005. Under this, women can directly file a complaint with the protection officer who is posted in every district under section 8 of this act. And if a protection officer is not appointed there somehow then she can file a complaint directly to the magistrate.
In the case of Surekha Mote vs. State of Maharashtra[14], it was held that if no protection officers are appointed the Magistrate ceases to have jurisdiction. That would frustrate the object of the act, this means that complaint can be entertained directly by the magistrate even if there is no protection officer. A complaint can also be filed in court, police station, office of women and child development, and Anganwadi centre. Women can also file FIR directly in the police station under IPC 498(A). An aggrieved person can get help from National Commission for Women on Helpline number like,
- Central Social Welfare Board -Police Helpline- 1091/ 1291, (011) 23317004,
- Shakti Shalini -10920,
- Nari Raksha Samiti- (011) 23973949,
- All India Women’s Conference -10921/ (011) 23389680.
Conclusion
THE PROTECTION OF WOMEN FROM DOMESTIC VIOLENCE ACT, 2005 works on the theory of social engineering where it accelerates the process of social ordering by making all possible efforts to avoid injury to a woman as it meets with the various interest like legal protection, security, peace, preserving social, political, economic equality as well as preserve morality, the dignity of a woman (whether a wife or mean to be a wife) in society. It promotes human personality by enabling a woman to live free from fear of torture whether it is mental or physical. Finally, it promotes social interest in the household.
[1]Samantha Power Quotes, Available at https://quotefancy.com/quote/1371949/Samantha-Power-Violence-against-women-isn-t-cultural-it-s-criminal-Equality-cannot-come (Last visited on 11/09/2021)
[2]Udita Singh Parihar, Domestic Violence: Not only assault is domestic violence, but mockery is also included in its purview, know where you can complain, Available at https://www.bhaskar.com/women/law/news/international-women-day-domestic-violence-types-and-how-to-complaint-all-you-need-to-know-about-in-hindi-128292157.html (Last visited on 13/09/2021)
[3]Available at https://www.civilhindipedia.com/blogs/blog_post/what-is-domestic-violence-in-hindi
[4]Available at https://ncrb.gov.in/sites/default/files/crime_in_india_table_additional_table_chapter_reports/TABLE%203A.2.pdf, Last visited on 20/09/2021)
[5]Dr. S.C. Tripathi, Women and Criminal Law 156 (Central Law Publications, Prayagraj, 3rd den., 2021).
[6]Advocate Ramesh Mohanlal Bhutada V. State of Maharashtra. 2011 cri. LJ 4074
[7]Section 2 (a) of THE PROTECTION OF WOMEN FROM DOMESTIC VIOLENCE ACT, 2005
[8](2010) 10 SCC 469
[9]Section 2(f) of THE PROTECTION OF WOMEN FROM DOMESTIC VIOLENCE ACT, 2005
[10]Section 2 (q) of THE PROTECTION OF WOMEN FROM DOMESTIC VIOLENCE ACT, 2005
[11]AIR 2019 SC 2600
[12]Section 3 of THE PROTECTION OF WOMEN FROM DOMESTIC VIOLENCE ACT, 2005
[13]Sarla Mudgal v. Union Of India AIR 1995 SC 1531
[14]Available at https://vikaspedia.in/social-welfare/women-and-child-development/women-development-1/meera-didi-se-poocho/domestic-violence-act-2005
