SYNOPSIS:
Ms. Geeta Luthra is an Advocate practicing in Delhi High Court and Supreme Court of India. In this webinar she talks about 'Protection of Women form Domestic Violence and Allied Laws'. She gives an extensive overview of the intricacies of the Protection of Women from Domestic Violence Act, 2005. She points out certain strong points underlying the provisions of the Act which makes this legislation one of its kind. She also pointed out certain lacunas which hindered proper and effective use of the Act. The webinar was extremely useful, informative and interactive. We at LAWyersClubIndia, feel much obliged that we had this opportunity of conducting a webinar alongside such a seasoned professional of the legal fraternity.
INTRODUCTION:
Ms. Geeta Luthra is a designated Senior Advocate, in the Supreme Court of India and has an LL, M (Masters in Law) and M. Phil. in International Relations from the University of Cambridge, UK and has been practicing law since 1980, in the Supreme Court of India and various High Courts of India. She is the Vice President of the Indian Council of Arbitration, member LawAsia and International Association of Family Lawyers.She has appeared as a counsel in several landmark cases, and has expertise in myriad facets of law, including Criminal Law, Constitutional Law, Arbitration Law, Human Rights. She has been a speaker at various international fora and has spoken on various burning issues like the Criminal Justice System, recent amendments in the Arbitration and Conciliation Act 1996, on the need for institutional Arbitration, Gender Rights in employment and Migration, changes in Rape Laws, Offences against Women including Sexual Harassment: Rape, Dowry Death and cruelty, Domestic Violence and Trafficking in Women.
In the present time of global pandemic, almost every country has imposed a lockdown and families, friends or spouses are compelled to stay together within the confines of their homes. While for some this has proven to be a fruitful time where people are catching up with their families, for others the lockdown has turned into a sheer nightmare, especially for women who are stuck in abusive homes. The number of domestic violence cases in India and around the world has increased many folds, making the numbers much higher than they normally are.
India has its own law for protection of women from domestic violence. The act is titled'Protection of Women from Domestic Violence Act, 2005' (hereinafter referred to as Act) which was passed in the Parliament in 2005 and came into force in 2006. According to the National Commission for Women, the number of cases in the first week of March (110) compared to the number of cases in end week of March (257), has increased exponentially. But this issue is not limited to India but is present worldwide. The United Nations Secretary General, Antonio Guterres has said 'I urge all governments to put women's safety first, as they respond to the Pandemic'.
In China, a Beijing-based NGO which is dedicated to combating violence against women has stated that there had been a surge in calls to their helpline number since early February, when the government had locked down cities in Hubei Province, which was the epicenter of this global pandemic. The menace of domestic violence is not limited Asian countries but is also prevalent in France and South Africa, where there has been a surge in the rate of domestic abuse according to Voice of America. In South Africa the authorities have said that nearly 90,000 reports of violence against women was reported in first week of lockdown. In Australia, Google has reported that there has been a 75% increase in online searches for help with domestic violence. In Spain where the rules relating lockdown are extremely strict and people are being fined for not following them, the Spanish government has stated that they will refrain from fining women who leave their house to report domestic violence. Lockdown is increasing isolation for women with violent partners, separating them from the people and resources that can best help them. It is a perfect storm for controlling, violent behavior behind closed doors. And in parallel, as health systems are stretching to breaking point, domestic violence shelters are also reaching capacity, a service deficit made worse when centers are repurposed for additional COVID-response.[1]
PROTECTION OF WOMEN FROM DOMETIC VIOLENCE, 2005
What are the factors which make this Act distinct and more special compared to maintenance laws or the provisions as under Hindu Marriage Act? Geeta Ma'am has stated the following:
- The Act is a one stop for women suffering from domestic violence. It takes care of several facets of domestic violence which includes financial abuse, child custody, shared household etc. The Act entails within itself almost all provisions which would help women who have suffered violence at the hands of their families and hence they do not require to seek assistance from anywhere else.
- It cuts across all religions, races, communities and caste. This is similar to the law pertaining to maintenance under section 125 of the Criminal Procedural Code.
Also Read: Domestic Violence and Allied Laws in India
WHAT ARE THE ALLIED LAWS/ACTS WHICH PROTECTS WOMEN?
It needs to be kept in mind that Protection of Women from Domestic Violence Act is a civil remedy, while the following laws are remedies under criminal law.
- Section 498A, Indian Penal Code, 1860- 'Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine.' Here cruelty has been defined in a wide term, so as to include inflicting physical or mental harm to the body or health of the woman and indulging in acts of harassment with a view to coerce her or her relations to meet any unlawful demand for any property or valuable security.
- Section 304B, Indian Penal Code, 1860- This section deals with dowry deaths. 'If a woman dies within seven years of marriage by any burns or bodily injury or it was revealed that before her marriage she was exposed to cruelty or harassment by her husband or any other relative of the husband in connection to demand dowry then the death of the woman will be considered as a dowry death.'
The remedy as given by the Act is civil remedy as stated in the case of V.D. Bhanot v. Savita Bhanot.[2]Geeta Ma'am has stated that this Act is a single window remedy for physical, mental, sexual, economic abuse and due to this very reason, the women do not need to run for shelter under various other legislations like the Guardians Act for custody, a criminal court for protection etc. Ma'am notes that it was not always recommended that women approach protection under criminal law, as once she takes the shelter of criminal law, there is no chance for reconciliation. This is because the Act does not have penal consequences and hence it gives more chances for resolution of fights. According to Ma'am,the Domestic Violence Act aims to provide compensation and support to victim rather than penalizing the perpetrator. It is also pointed out that this is a victim driven law and state's aid is not needed. This means that in cases of 498A, IPC, the woman has to depend upon the police authorities for investigation and prosecution for enforcement, but no such procedure is required under the Domestic Violence Act.
RECENT DEVELOPMENTS BY JUDICIAL PRONOUNCEMENTS:
Ma'am had pointed out that the Act is fairly recent (not more than 15byears old), hence there have been several judicial precedents which have affected the Act. This is because there are several terminologies and provisions in the Act which have left room for interpretation by the courts. It raises the following questions: -
Who is 'Respondent' u/s.2(q) of the Act? Is the respondent limited to someone being male, or also includes someone being female?
In the case of Ajay Kumar v. Lata alias Sharuti,[3] it was held that the proviso to s.2(q) of the Act indicates that both, an aggrieved wife or a female living in a relationship in the nature of marriage may file a complaint against a relative of the husband of the male partner as the case may be.
What is a 'Shared Household' u/s.2? Can it said to be a domestic relationship if a person is not sharing a household?
It has been categorically held that a shared household solely refers to the house belonging to/taken on rent by the husband or the house belonging to a joint family, of which the husband is a member. Therefore, as per the prevalent law, any property owned exclusively by an in-law cannot be treated as a shared household. (Refer to Sneha Ahuja v. Satish Chander Ahuja and S.R. Batra &Anr. v. Taruna Batra)
Can the proceedings overlap with s.125 of CrPC?
Court in the case if R. Rajkumar v. Yoga @Yogalakshmi[4] held that the proceedings under the Domestic Violence Act and that u/s.125 of CrPC, are independent proceedings. Once the Magistrate declined to grant maintenance under the Domestic Violence Act, it was not open for him to assume jurisdiction under s.125, CrPC, which was not pending before him and was a completely independent proceeding to direct grant of maintenance under the same.
Misinterpretation of loosely defined terms like 'matrimonial home'?
When Ma'am was asked by the Ministry of Women and Child that what wascould be titled as the most significant right when it came to domestic violence, she stated that it was the right in a matrimonial home. This was because residence takes away of major chunk of a person's wage. The definition of 'matrimonial home' and 'shared household' was too loosely defined in the Act u/s.17 where even a temporary residence/visit could have been interpreted to include matrimonial home. This concept has been narrowed down by the Delhi High Court in three landmark judgements:
- Shumita Didi Sandhu v. Sanjay Singh Sandhu[5]
- Dr. Kavita Chaudhari v. Ms. Eveneet Singh &Anr.[6]
- Barun Nahar v. Parul Nahar[7]
It has been noted that a woman has the right to residence of the husband, which is the shared household, but she does not have the right to a residence. This right has to be realistic. The court must look at the facts and circumstances of every case.
INTERPLAY OF ACTS:
Since there are laws pertaining to senior citizensalso, the questions that arises that how one would interpret the law to be harmoniously constructed so that it does not discriminate mother or father-in-law and the wife and husband. The remedy that has to be decided while taking care of various aspect such as whether wife has any source of income or not and other facets.
SCOPE OF MISUSE:
The law as under the s.498A does not provide a scope for reconciliation and might be misused, and hence this is another reason as to why Domestic Violence Act is preferred. According to the Malimath Committee Report (237th Law Commission Report)once a complaint or FIR has been lodged under section 498A, it becomes an easy tool in the hands of the police to arrest or threaten to arrest the husband ad other relatives named in the complaint/FIR without even considering the intrinsic worth of the allegations and making a preliminary investigation.
ISSUES WITH THE PROTECTION OF WOMEN AGAINST DOMESTIC VIOLENCE ACT:
- Due to overburdening of cases in the court, effective disposal of the cases do not take place. Ma'am noted that in one of her cases, relief was granted by the court without even going viewing the evidence of the case.
- Sometimes dates for cases are given dates after 2-3 months after the incident. This means no speedy justice which was ensured by the Act. Hence now the Ex Parte judgments are given.
- Ma'am has noted that even though this is a very articulate and immaculate Act, its implementation is lacking. And hence the Act is becoming as dilatory as other civil laws. This is also why women seek relief under criminal law.
LIVE IN RELATIONSHIP AS UNDER THE PROTECTION OF WOMEN FROM DOMESTIVE VIOLENCE ACT:
The Act defines a live-in-relationship as 'a relationship in the nature of marriage'. A partner in a live-in relationship is eligible to seek maintenance under the Domestic Violence Act. In the case of Indra Sarma v. V.K.V Sarma,[8] Delhi High Court held that the following are the conditions of a valid live-in relationship and that not all live-in relationships are covered under the Act:-
- The couple must hold themselves out to a society as being akin to a spouse
- They must be of the legal age to marry
- They must be otherwise qualified to enter into a legal marriage
- They must have voluntarily established and held themselves out to the world a being akin to spouses for a significant period of time.
ESSENTIAL CONDITIONS FOR GRANTING MAINTENANCE:
- Sufficient means to maintain- According to s.125(1) of CrPC, the person from whom maintenance is claimed must have sufficient means to maintain the person claiming maintenance.
- Neglect or Refusal to Maintain- As per s.125(1), the person from whom maintenance is claimed, must have neglected or refused to maintain the person entitled to claim maintenance.
- Wife claiming maintenance must be made to maintain herself- The maintenance has to be determined in the light of the standard of living.
Whether a person who has the capability of earning but chooses to remain idle should be permitted to saddle other spouse with his/her expenditure? The court answered this question in the case of Smt. Mamta Jaiswal v. Rajesh Jaiswal[9]the Madhya Pradesh High Court held that spouse who is well qualified to get the service immediately with less efforts are not expected to remain idle to squeeze out, to milk out the other spouse by relieving him of his or her own purse by a cut pendente life alimony. The law does not expect the increasing number of such idle persons who by remaining in the arena of legal battles, try to squeeze out the adversary by implementing the provisions of law suitable to their purpose. Further it was pointed out that a wife is entitled to get pendente lite alimony from the husband in view of provisions of Section 24 of the Act if she happens to be a person who has no independent income sufficient for her to support and to make necessary expenses of the proceedings.
In Shailja&Anr. v. Khobanna[10] merely because the wife is capable of earning is no reason to reduce maintenance awarded to her.
Geeta Ma'am states that when a woman has not left her job irrespective of any hardships she might have suffered, then she should be entitled to maintenance. But if she chooses to sit idle without any work even though she can work, then in this scenario she should not be awarded any maintenance.
Now the questions arises with respect to the quantum of maintenance that shall be awarded. It was held by the Delhi High Court in Annurita Vohra v. Sandeep Vohra[11] that the court must first arrive at the net disposable income of the Husband or the dominant earning spouse. If the other spouse is also working these earnings must be kept in mind. This would constitute the Family Resource Cake which would then be cut up and distributed amongst the members of the family. The apportionment of the cake must be in consonance with the financial requirements of the family members, which is exactly what happens when the spouses are one homogenous unit. In a recent judgement of the Supreme Court in the case of Kalyan Dey Chowdhary v. Rita Dey Chowdhary Nee Nandy it was held that 25% of the husband's net salary would be just and proper as maintenance to wife. Other observations that were made were that the amount of permanent alimony awarded to the wife must be benefitting the status of the parties and the capacity of the spouse to pay maintenance. Further it was stated that maintenance is always dependent on the factual situation of the case and the court would be justified in molding the claim for maintenance passed on various factors.
GROUNDS ON WHICH WIFE CAN BE REFUSED MAINTENANCE:
- Wife must not be living in adultery
- Wife must not refuse without sufficient reasons to live with her husband.
- The wife must not be living separately by mutual consent.
CUSTODY OF CHILD ONLY WITH MOTHER- THE LACK OF CLARITY?
The assumption that a mother keeps the home, performs household duties and hence will have more time for the children and their welfare was simply not true for many mothers.
Even the courts articulating the best interests of the children resort to the notion that children in their tender age shall be under the guidance of mothers as this is best suited for them.
CONCLUSION:
This webinar conducted by Ms. Geeta Luthra was very informative and enlightening. Ma'am pointed out several pros and cons attached to the Protection of Women from Domestic Violence Act, 2005,
In India, unlike other countries such a USA and UK, the domestic violence Act is not gender neutral, rather it is gender specific. According to Geeta ma'am, this is not healthy as their needs to be a sense of equality in the society. But the sad reality is that in India, women have been the oppressed section since time immemorial and hence have been discriminated.Women have been equated with Goddess in several religions, yet they are battered and tortured in numerous, unthinkable ways. One cannot expect the protection of women by strangers if they are not protected and respected in their own homes. Upliftment of women in household shall be of paramount importance. Domestic violence causes physical pain, but the mental bruise that remain are far more painful and heartbreaking. It is time to shatter the social customs and tradition which demean human beings, because everyone is born the same, hence everyone shall be treated the same.
It was an honor to have such an interaction with Geeta Luthra ma'am and the members at LAWyersclubIndia thank him for his time and support.
BY ADV. GEETA LUTHRA
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Tags :family lawdvdomestic violence
