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Domestic Violence: Laws Need To Change

Synopsis-

This article discusses the various forms of abuse which women have to face in today’s society. Women have had to deal with both mental and physical abuse since time immemorial. It shows how it can be difficult for the woman to prove in the courts, private incidents which occur in the confines of homes. The children in the family are also badly and negatively affected by these incidents and develop psychological conditions themselves. If there are problems of any kind of addiction to substances like alcohol and drugs, then the condition and violence worsen. Many international treaties have been signed to protect women from violence. Before 2005, women had no remedies for the violence which they had suffered. But the of Protection of Women from Domestic Violence Act 2005 aims to include all women and to sought remedies for the violence which was tolerated. Although this Act was a good initiative and has helped women a lot, there are still some loopholes which have to be rectified for it to achieve its maximum potential.

Goddesses are worshiped in India, but Indian women have almost no protection when it comes to domestic violence due to the lack of proper laws and its implementation. There is a history of physical and mental violence against women. Physical means something related to the human body, thus physical violence is something which harms the body of the victim. It is done intentionally to assert power when there is an imbalance of power and the weaker person is hurt by the stronger one for maintaining the dominance of their power.

Domestic violence can be both physical as well as mental abuse. Even in modern India, women are unable to escape the various types of crimes throughout their lifetime like discrimination on the basis of gender, sexual harassment, human trafficking, dowry deaths, female foeticide, mental violence and social humiliation. This threatens the safety of lives of women throughout our country and their well-being.  Physical abuse can be proved more easily in courts of law as compared to mental torture as it is visible, but psychological abuse is equally traumatizing for the lady as she is scarred for life. Women have to deal with insults by family members and public humiliation, far more than the men, especially if they are married. They are forced into isolation and not allowed to go outside as there are limits on their mobility. They are always in a continuous threat of violence being committed on them, both in the house as well as outside their homes, and also denied economic resources.They are left helpless at the mercy of their male counterparts. These acts may be subtle but they are insidious in nature. As it can be difficult to prove the mental abuse done, the woman is left powerless and the abuser contends in court that the woman is not mentally stable. Even the kids in the family are affected by this and suffer from anxiety and PTSD. Later on in life, they too become aggressive and this cycle of abuse continues. Thus, domestic violence is an initial stage of crime which is an abuse of power done in a pattern of behaviors.

A national family health survey showed that; if the man suffers from drug addiction, then it becomes even more difficult for the woman as she has to deal with financial instability as well as abuse by her husband, when he is not in a sane state of mind. Women whose husbands are addicted to alcohol are more likely to be abused than women whose partners do not suffer from any addictions. Unfortunately, in India, till the year 2005, if women suffered from any kind of violence, the only way for them to get away from the problem was to file for divorce or punish the perpetrator under Sec 498A of the Indian Penal Code but did not receive any legal remedy. This was because there was no legal remedy for the victims before 2005. Even the civil law did not address this problem in whole. On top of all that, only legally married women could apply for Sec 498A. Thus, there was differentiation between the classes of women who could benefit from these laws.

 In international treaties like Discrimination against Women (CEDAW) and Universal Declaration of Human Rights (UDHR), all classes of women are protected in “violence against women”, thus if Indian laws don’t do that, it is a violation of their fundamental rights to be protected against abuse of all forms and not protecting their freedom. Thereafter, Protection of Women against Domestic Violence Act, 2005 was brought about and it gave legal recognition not only to live in relations, but it was also applied to mothers and sisters of the family. Sec 5 of Protection of Women from Domestic Violence Act 2005 has defined domestic violence as any act which causes hurt or injury or causes mental or physical abuse. In Bhartiben Tamboli Vs State of Gujarat, it was ruled that this Act has a very wide ambit and remedies have been given to the victims, which was not included in the earlier laws.  Under this Act, the victims have a right to obtain free legal services, as per the Legal Services Authority Act, 1987. The victim also has rights to go to a protection officer, who should preferably be a woman, and find out about her legal rights. As per Sec 14 of this Act, the magistrate can also ask the victim or the perpetrator to receive counselling sessions with an expert. The judge can pass a residence order where the accused is asked to move out of his shared household with the victim. Monetary reliefs can also be provided to the victim as compensation for the abuse suffered by her. If the woman has kids with the accused, then the magistrate can make an application and order the custody of the kids to be given to the victim. But if the judge feels that the presence of the accused can make the kids uncomfortable, then he can denythe visitation rights of the accused. Ex parte and interim orders can also be granted if it is felt that such abuse can continue in the future. If any of these protection orders are breached, it can attract maximum fine of twenty thousand rupees or punishment which can be extended to a year.

The perpetrators in domestic violence are anyone who is in the adult age group. It is important to note that some of them suffer from psychological problems like depression, bipolar disorders or post traumatic stress  if they have suffered from abuse themselves in the past. It does not constitute only men as these acts can be done by women also, like mother-in-law or sister-in-law. This is because of the wrong perception of women in the state which is to bring down another women.

 In Sandhya Wankhede Vs Manoj Wankhede, it was held that the word ‘relative’ which is used in Protection of Women against Domestic Violence Act, 2005 has a wide scope and thus, the complaint which was made against the female members of the husband’s family is valid under the Act.

Tragically, men do not report these crimes being committed on them due to the toxic masculine mentality which prevails in our society. It is estimated that more than 8 lakh men have been victims in such cases. One should bear in mind that some women have to inflict violence out of necessity in self-defence when their partners were the ones who started the violence in the first place.

There have also been many criticisms about this Protection of Women from Domestic Violence Act that it is allegedly used by educated women to falsely fabricate their husbands. Statistics have shown that the cases reported for domestic violence have rapidly increased since the year 2006. It is also condemned for being only in civil nature when it was originally intended to be in both criminal as well as civil. It is mostly civil, except when the protection orders are breached, only then the criminal aspects apply or when there is some other criminal offence involved in the case. Protection officers are given the authority to properly implement and administer this Act. They are usually government employees appointed by the state and work part time. Thus, they are not qualified enough to fit into this sensitive role as they have to look after the victim and provide services like counselling, medical help and give them legal aid. They also have to assist the court and instigate for action to be taken for the victim. Hence, full time officers should be appointed who should be well versed in dealing with such grave matters. It is also challenged that this law violates Art 14 and 15 of the Constitution as only women can file a complaint under this Act and it is discriminatory towards men. It assumes that such violence is not committed on the male populace and only men can be the perpetrators in such a scenario.

In the case of Kamlesh Devi Vs Jaipal , 2019, it was held by the Supreme court that there should be proof and not mere assertion that the accused in the case under D.V. Act are family members of the woman and in an important judgement passed by the Delhi High court of Binita Dass Vs Uttam Kumar, it was stated that maintenance cannot be denied to the wife even if she is educated and is capable of getting a job for herself. This similar observation was held in Supreme court case of Megha Khandelwal v. Rajat Khandelwal. The Calcutta High court in the case of Haimanti Mal Vs State of West Bengal awarded one lakh rupees compensation to the victim who suffered from mental agony by her husband as per Sec 22 of the D.V. Act which provides remedies of compensation for damages suffered. It was held that when the compensation is being determined, it should be rational in nature. In an interesting case of Manju Sharma Vs Vipin in Delhi High court, the husband who actually earned a crore annually, showed his income as ten thousand rupees for giving maintenance under D.V. Act to his wife. When his real high income was revealed, the maintenance amount was increased threefold. The Bombay High court has held in Sadhana Vs Hemant that a divorcee does not have any right to file a case under the D.V. Act.

In a very recent judgement of Satish Chander Ahuja Vs Sneha Ahuja of 2020, a three judge bench headed by Justice Ashok Bhushan of the Supreme court of India has held that even if a Residence order is passed under Protection of Women from Domestic Violence Act 2005, it does not stop the victim from starting or continuing any proceedings related to this subject matter. The petitioner filed a suit against the defendant, who was his daughter in law; demanding for injunction and mesne profits because the defendant had complained under the Protection of Women from Domestic Violence Act. In the D.V. case, the appellant was ordered not to dispossess the defendant. The appellant pleaded that the occupation of his daughter in law on the property in dispute is very lenient in nature and the daughter in law is not entitled to the benefit of residence, and the father in law stated that he has no responsibility of maintaining the woman. On the other hand, the woman said that she has a right to stay in the house as it is a shared household under Sec 2 (s) of Protection of Women from Domestic Violence Act 2005.

It can be summarized that the Act is actually very promising and can be amended to reach its full potential which it was aiming for, at the time of its implementation. It was brought about in good faith at the time when there were no other remedies available for women. This law has combined the civil remedies and criminal procedure to ensure protection of women. There has to be proper and widespread application of this law to succeed. Human Rights Watch, an international non-governmental organization noted that local police officers in India do not start an investigation by filing an FIR, specially if the victim is not from a privileged background. If all these issues are solved, only then we can surely deliver timely justice to the women of our country who have suffered abuse time and again.

 

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Nida Khatri 
on 16 October 2020
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