This article has been written by Muskan Anand pursuing Diploma in Advanced Contract Drafting, Negotiation and Dispute Resolution and edited by Shashwat Kaushik.
This article has been published by Sneha Mahawar.
Table of Contents
Introduction
Women in the 21st century might be seen confidently walking out of their homes, competing with their male counterparts and holding high-profile positions. Seeing this image, should we consider that the long standing violence against women in domestic spaces no longer exists? The answer is a big no. Despite various efforts to reduce offences related to women, violence against them in society still continues. This article is an effort to learn about the condition of women and the laws that emerged to protect them from domestic violence.
Condition of women
Throughout history, women across the world have faced violence at the hands of men, and the situation in India is no different. Forced widowhood, the practise of Sati, female genital mutilation, child marriages, rape and forced abortion are some forms of violence that were practised against women. Such treatment of women is because of her status in society, which she has acquired due to societal, cultural, and political factors. Women were not seen as intellectuals; therefore, they were not welcomed in spaces that involved discussions and decision making; they were confined to the four walls of the house and to household chores. A mere attempt by a woman to participate in discussions or words of protest by her against wrongs meted out to her brought her the tags “lunatic” and “insolent”. Girls were not given proper education and they were married at an early age, sometimes with a man who would be much older than them. In marital homes, women were tortured and, in some cases, even killed for dowry. In the nineties, cases related to dowry deaths were on the rise; these cases were being called “bride burning”. The cases related to domestic violence against women were under-reported. In the past, women were not allowed to take-up jobs, they were not given property rights and, as discussed before, they were not given proper education, which, if given, would have helped them to understand the level of discrimination they were facing and would have armed them with the knowledge to tackle such discrimination.
Legislations that protect women
The Child Marriage Restraint Act of 1929, which was enacted to curb the social evil of child marriage, doesn’t even invalidate child marriage; it only has penal provisions where the maximum punishment is 3 months. The injunction orders cannot be issued unless the court has previously given notice to the person committing the evil of child marriage and has afforded him an opportunity to show cause against the issue of the injunction. This provision is redundant in the event that the court is informed of the child marriage at the time of the solemnization of marriage. Further, there is no provision for a child marriage prohibition officer, like in the latest legislation on the same issue. It was impossible to bury the social evil of child marriage with such legislation where there is not even a single provision to assist the child to approach the court for annulment of her marriage, and upon all of it added Section 9, which prohibits the court from taking cognizance of the offence after the expiry of one year from the date on which the offence is alleged to have been committed. It is to be noted that, in India, the maximum number of child brides is found. With such legislation and the poor status of girl’s education, it is impossible to change this status of having the maximum number of child brides.
Dowry is another social evil that is practised in India and is the cause of many crimes. To curb this social evil, the government enacted the Dowry Prohibition Act of 1961, but the enactment failed to curtail the ever growing demands of the bridegroom’s family. Under Section 2, the word dowry is defined very narrowly; it covers property or valuable security only, whereas in Indian marriages, jewellery, cash and clothes for the entire family are also given in marriage and after marriage, on many occasions and festivals. Since the justice delivery system is so overburdened, the cases filed take a good amount of time to get resolved; therefore, in such a situation, parents or relatives of the bride do not file petitions so as to protect the marital life of their daughters; rather, they choose to quench the greed of the girl’s in-laws.
Sections 304B and 498A of the Indian Penal Code of 1860 were the only two provisions that protected women from domestic violence before the Domestic Violence Act of 2005 came. These sections were introduced to reduce the dowry menace that was prevalent at that time. The critique of these provisions is that they only protect women in a marital relationship and not other female members of the household who are also subjected to domestic violence. The word “cruelty” under Section 498A is vaguely defined and does not consider other forms of violence that have been recognised under the Domestic Violence Act. The same section is also subject to the principle of proof beyond reasonable doubt, which makes it difficult for prosecution lawyers to prove the case as violence takes place within the confines of home.
Why was there a need to include specific laws related to domestic violence
One can ask why there is a need to introduce specific laws for domestic violence when its victims can avail relief under the laws mentioned above and the gaps that exist can be amended. As beautifully captured by Indira Jaisingh in her article titled “Bringing Rights Home: Review of the Campaign for a Law on Domestic Violence,” the need for such laws arose because of the difficulties that were faced by women in invoking the law, the reluctance of police in interfering in private matters of the family, and the lack of evidence for convicting the accused. Further, the provisions in criminal law dealing with domestic violence, being penal in nature, were not enough to protect women since they only punished the perpetrators but did not protect the victim. Women, on top of being the sufferers of domestic violence, will be harassed even more if her family members face the wrath of the law as a result of her complaint. She would be dispossessed of her marital home, not supported financially, and emotionally tortured by having her children taken away. None of the remedies provided by criminal law can protect women from these evils; therefore, there was a need for civil law to be in place that could provide relief to women. There were some civil provisions, such as injunctions, but they were not easily available and were not backed by punitive action in case they were violated; therefore, there was a need for specific laws to deal with cases of domestic violence wherein the victim of domestic violence could be protected and provided with holistic support.
Protection of Women from Domestic Violence Act, 2005
The Protection of Women from Domestic Violence Act of 2005 came after a lot of struggle by the women’s organisation and multiple rounds of discussion. The benefit of it was that all the gaps that created hindrances to delivering justice to women were removed.
The key issues resolved
As we discussed above, it wasn’t easy for the aggrieved women to take legal recourse because of the difficulties involved in it. To make it easier for the victims to invoke the law, the new legislation introduced protection officers, who were responsible for assisting women throughout the legal framework.
Another feature of this legislation is that the definition of “aggrieved person” includes unmarried women as well as women in relationships resembling marriage. The definition of domestic violence under this Act recognises physical, sexual, verbal, emotional and economic abuse. The definition of domestic violence has been made very broad, which would help courts convict the respondent before the aggrieved woman reaches the position where she would want to self-harm due to the violence that was being committed against her.
This Act provides holistic protection to women subjected to domestic violence. It is more about providing civil remedy to the victim. The remedies include orders and monetary relief by the magistrate.
Remedies and rights under Protection of Women from Domestic Violence Act, 2005
Protection order
The protection order is issued under Section 18 of the Act to protect the women from any further incidents of violence by prohibiting the respondent from contacting, meeting, committing violence directly or indirectly to the victim, alienating assets, bank lockers and bank accounts owned jointly or separately by the respondent and any other act that is prohibited by the protection order.
Breaching a protection order is a cognizable and non-bailable offence under Section 31, where the respondent may be punished with imprisonment of either description for a term of up to one year, with a fine that may extend to twenty thousand rupees, or with both.
Residence order
The magistrate may pass a residence order under Section 19 of the Act if he is satisfied that domestic violence has taken place. The order can include restraining the respondent from dispossessing or in any other manner disturbing the possession of the aggrieved person from the shared household, entering into the portion occupied by the aggrieved person, alienating or disposing of the shared household or encumbering the same, renouncing his rights in the shared household, and directing the respondent to remove himself from the shared household or arrange alternative accommodation for the aggrieved person.
Apart from the instructions mentioned above, the magistrate, under the same section, can also pass other orders and directions to the police officers and respondent to ensure the safety of the aggrieved women.
Custody order
The magistrate can grant temporary custody of children under Section 21 of the Act to the aggrieved during the hearing of the application and can specify, if necessary, the arrangements for the visit of such children by the respondent. Provided that if the magistrate is of the opinion that any visit of the respondent may be harmful to the interests of the child or children, the magistrate shall refuse to allow such a visit.
Compensation order
The magistrate can order the respondent under Section 22 of the Act, on an application made by the aggrieved person, to pay compensation and damages for the injuries, including mental torment and emotional distress, caused by the act of domestic violence committed by that respondent.
Section 20 of the Act provides for the provision of monetary relief under which the magistrate can direct the respondent, while disposing of the application under Section 12 subsection (1), to pay monetary relief to meet the expenses incurred and losses suffered by the aggrieved person and any child of the aggrieved person as a result of the domestic violence and such relief may also include other expenses. This provision is also backed by a remedy wherein if the respondent fails to provide the monetary relief, then the magistrate may direct the employer or a debtor of the respondent to directly pay to the aggrieved person or to deposit with the court a portion of the wages, salaries or debt due to or accrued to the credit of the respondent.
Section 17 of the Act protects women from being dispossessed of the house by giving them the right to reside in the shared household, whether or not she has any right, title or beneficial interest in the same.
Gaps in the legislation
Although the legislation on domestic violence was comprehensive enough to cover all aspects of domestic violence, cases of domestic violence have continued. The gaps in the legislation and lack of enforcement by the authorities are partly responsible for the continuation of such cases. Women’s groups criticised the inclusion of counselling for both aggrieved persons and the respondent; according to Indira Jaisingh, it could be more dangerous for a woman if conciliation is prioritised. In India, due to the existing socio-cultural milieu, women are already forced to live in their homes and are made to bear the violence at the hands of their own people. If in such a situation conciliation is prioritised, then these women will be again pushed back to that toxic relationship, against which she would have taken action after finally finding the courage to leave the toxic relationship. The absence of a dedicated budget for the implementation of the provisions of this Act from the Central Government and the inadequacy of funds from the state government result in the incomplete employment of machinery required under the Act, which in turn undermines the objectives of this Act.
Conclusion
To achieve the goal of protecting women from any kind of violence, all the gaps in the legislation should be filled and adequate funding should be made for proper implementation of the machinery required by the Act, but that would not be enough, as accurately pointed out by Jaisingh in the conclusion section of her article, that the thinking of men needs to be changed. As discussed above in the history section of this article, women are facing violence because of their status in society. To uplift women from this position, along with empowering women by providing their education, adequate representation, and protecting their rights from being violated, it is essential to hold gender sensitization sessions from the very beginning of a child’s education so that the child grows up practising things that would lead to the creation of an equitable and inclusive world. In the meantime, it is also essential to educate women about their rights and to continue raising voices for the proper implementation of existing laws. A continual struggle needs to be made to achieve these goals.
References
- https://www.scconline.com/blog/post/2020/07/27/law-on-domestic-violence-protection-of-women-from-domestic-violence-act-2005/
- https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4462781/#ref23
- https://jstor.duelibrary.in/stable/pdf/44002806.pdf?refreqid=fastly-default%3A5979d0830669f3533f7532bf7b6fd4d0&ab_segments=0%2Fbasic_search_gsv2%2Fcontrol&origin=&initiator=search-results&acceptTC=1
- https://www.jstor.org/stable/24701027
- https://www.ijfcm.org/html-article/13600#:~:text=The%20Indian%20legal%20system%20has,for%20dealing%20with%20domestic%20violence.
- https://jstor.duelibrary.in/stable/pdf/4417395.pdf?refreqid=fastly-default%3A8bf3a8ea44b4602064deff1160d7994c&ab_segments=0%2Fbasic_search_gsv2%2Fcontrol&origin=&initiator=search-results&acceptTC=1
- https://jstor.duelibrary.in/stable/pdf/25663733.pdf?refreqid=fastly-default%3A8f9054bd09a04a3a4a1b4728f84bd7c7&ab_segments=0%2Fbasic_search_gsv2%2Fcontrol&origin=&initiator=search-results&acceptTC=1https://jstor.duelibrary.in/stable/pdf/23017848.pdf?refreqid=fastly-default%3Ad07c6b422b66d3e1825fc1286d48898c&ab_segments=0%2Fbasic_search_gsv2%2Fcontrol&origin=&initiator=search-results&acceptTC=1
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