Devastating Effect Of The Domestic Violence Act 2005

Since ages the social status of women has remained pitiful and worrisome. The stance of the society towards feminine gender was not as broad as today. They were the victims of dominance in the hands of their husbands and in-laws, unfortunately the women had no other choice but to accept the enormity as their fate and sanction the ambush done daily on their dignity without any condemnation.

Many tolerated the same as fortune and the rest who came forward to report had to step back due to lack of concrete provisions in law and improper legislation or had to face the gravest aftermaths of their attempt which at times may cost them their life! In order to provide effective protection of rights to women who were victims of violence of any kind occurring within the family, the Protection of Women and Children from Domestic Violence Act 2005[i] enacted as a step towards providing women with tangible legal protection.

The said enactment was in concurrence with the situation and social status of women then, however, the situation at present is not as same as before in fact has reversed, progress of mankind always shows the other side of the coin which is both negative as well as positive. The improved status of women in society and the rising awareness about the rights and privileges available is no doubt a great social change but is accompanied by the excessive bloody wisdom; due to the laws being completely inclined towards women, women find it irresistible to misuse and take the undue advantage of law.

As a result women use the given legal protection as a weapon against men and harass them by taking disadvantage of the prevailing laws. The author in this article has tried to highlight the devastating effect of the misuse of the provions by the women which are enacted for the welfare of women.

The Act at the inception proved to be very fruitful; women audaciously came forward and reported the violence that they suffered. Also, women were made more aware about their rights and the legal remedy that they could avail at the time of adversaries; they also became aware about how they could safeguard themselves as they started acquiring more and more education eventually giving them a better platform for better world exposure.

But as rightly said all power tends to corrupt and absolute power corrupts absolutely, the intention of the legislature entered demeaning stage when recently more of false cases were reported. In the recent time women started creating havoc by using the act as a tool or weapon to harass and blackmail men by registering false complaints against husband and his relatives with the alternate motive of extracting money.

Unfortunately the present law being gender specific there is no law to protect men [ii] from such melancholy, being a patriarchal and male dominated society the husband is left with very limited defences, the only remedy a man can avail at such time is either to defend the case and wait till the final judgement comes or file a concrete case against wife and prove her wrong. Mostly, the former remedy is the only one that can be adopted as the later one may get the husband into many complexities.

The primary intention of the legislature behind enacting gender specific law was to empower women and bring them at par with their male counter parts however, the law has not absolutely accomplished the objective of the legislature due to the presence of imperfections in it which in turned has become temptation for women to victimise themselves.

The most notable flaw in the act is that it lends itself to such easy misuse that women will find it hard to resist the temptation to teach a lesson to husband and his relatives and will file frivolous and false cases [iii] taking apt advantage of absence of any laws to protect men. The most prominent drawback of the act is that the definition[iv] of  domestic violence  is as stated in the act is very much ambiguous in nature.

The definition of  domestic violence  varies, depending on the context in which it is used. The meaning and interpretation of  violence  may vary from one instance to another. The same may be defined differently in medical, legal, political or social contexts. Though traditionally the definition of domestic violence is associated with physical violence yet the same is defined variedly in different parts of the world. For instance Merriam-Webster dictionary defines domestic violence as  the inflicting of physical injury by one family or household member on another also a repeated habitual pattern of such behaviour [v].

For instance the act includes  insults  and  jibes  under the definition of  verbal and emotional abuse . It might in some cases, be extended to mere domestic quarrels that were not intended to fall under the definition of mental and verbal abuse[vi]. Also, it is pertinent to note that unfortunately according to Domestic Violence Act, 2005 the aggrieved party is always  any women . Man does not come within the ambit of such definition.

Further, the  respondent  under the definition means any  adult male person , which means a complaint cannot be directed against women. However, it is not mandatory that the violence shall always be caused by the man on women.

In the matter of Dr N.G Dastane v/s Mrs S Dastane [vii] the Hon’ble Supreme Court held that the cruelty is of two types one is mental the other is physical. It might be true that physical is generally being perpetuated by the husband being a strong one but at the same time this can’t be said to be universally true. It is also vice versa in case of mental cruelty to the husband.

The term cruelty thus have a wider connotation and the term can be interpreted contingently as a consideration of those occurring which are yet to occur and which may not even occur. Women to book the husband falsely may interpret the term in the most dangerous way. Thus it is very pertinent to note that though the act has defined the term  domestic violence  albeit in a vague manner yet the concept of cruelty cannot specify for females only.

Another notable flaw is that the Magistrate is empowered to pass protection order[viii] which means that the magistrate can take measures to protect the women from any acts of violence that are even likely to take place in the future. The act further says that the complaint can be filed by any person other than the aggrieved person who has reason to believe that the violence has taken place. The act has certainly given women with too many rights under one roof.

The powers and discretion of the judicial officers too are wider in nature. The foremost action what court takes after receiving complaints of domestic violence is initiating the order of  stop violence order  or  Protection order  against the respondent. The intention of this order is to give a space free from violence to women facing domestic violence. It is in nature meant to be emergency law. If the respondent is disturbing the aggrieved in peaceful living in a shared household, the residence order [ix] which is in it a dangerous immunity conferred upon the women.

The another treacherous provision yet justified by the law is that the interim custody of the child also can be given to the aggrieved which puts the respondent in the fear as the visitation rights can also be denied in the  custody order . [x]

The prominent protection that gives wings to the ill-intentions of women is  monetary protection . Earlier, the genuine reason why women never raised their voice against their sufferings because they were economically dependent on their husband however, the condition is not the same now. Women too are educated and are economically self-reliant and at times are seen having more income than their male counter parts. The one who are indeed economically independent too harass their husbands by asking monetary reliefs by availing the benefit as provided under section 20(1) of the act. The women can avail the monetary relief, when the court is of the opinion to grant compensation to the victim for damages for injuries  compensation order  is issued.

The victim of domestic violence is also protected with monetary relief and the remedy to victim under any other civil or criminal court is not barred. In addition to this and exclusive of other provisions of law the jurisdiction of the magistrate to grant maintenance allowance is governed by section 125 of CrPC impliedly mandatory provision for maintenance and monetary relief was absolutely not required. The women who earn well also are seen taking undue advantage of the same on some or the other pretext.

The provision only tends to create multiplicity of proceedings and consequences which could be grossly unfair to both the parties. However, it is only the Hindu Marriage Act 1955 and Parsi Marriage and Divorce Act 1936 which specifically provides the relief of maintenance to both husbands as well as to wives at par [xi].

Domestic violence is extremely complex and to report the same as what is happened is even more complex. The violence takes place within the four walls of the house and no one else can aptly state it other than the one who suffered it specifically in the country like India where there are no specific laws for the protection of men.

There are many laws for the protection of women Dowry Prohibition Act, Section 498A in Indian Penal Code i.e offense of cruelty by husband and relatives of husband, Section 125 in Code of Criminal Procedure Code i.e maintenance for wife protection of women from protection of Domestic Violence, whereas there is no provision like 125A in Criminal Procedure Code or 498 B in Indian Penal Code.

The specific laws are misused by women and are accompanied by the failure in the investigation mechanism. Courts too are not diligent while pronouncing orders and often fail to apply their minds. Nobody addresses the grievances of husbands and his relatives not even the society. The practice says real purpose of the women related specific laws are misused and thereby husband suffer for no fault[xii].

In Vijayalakshmi v. Punjab University[xiii] it was held that as a result of joint operation of Article (15) and (3), the state may discriminate in favour of women against men but it may not discriminate in favour of men against women. Wherein is known that protection against domestic violence is a civil right it cannot be forgotten that its misuse cannot be taken lightly [xiv].

The other view on the other hand argues that social problems if remedied by force may lead to stronger reactions from the respondents, which in the end may be detrimental to the existence of society itself [xv].

It is absolutely true that to keep a check on men some stringent measures are necessary but this needed to be brought about not by adding more and more laws in the statute books with ill-advised measures but through proper enforcement of legal frame-work. Due to few false cases all the genuine cases too loose the gravity of being real and true and at times may be neglected.

The false reports puts the society into a perplexing condition wherein to believe or not to believe becomes the question. There are true cases where women are trapped in atrocious marriage and brutal household environment; they suffer in the hands of their husbands and in-laws.

Even the most educated and dignified people commit the offence of Domestic violence and even the qualified and well behaved women become the victim of Domestic Violence, many women are victims of sexual harassments and marital rapes which may lose spotlight if constantly women would report those crimes which never took place. Thus, in reality it is not only the law but also the inappropriate implementation of law which is responsible for the critical imbalance as what is seen today in the society.

Thus, the Police authorities too should be alert and diligent enough while registering the complaints while taking initial action and while doing further investigation they must once check the veracity of the crime instead of merely following the protocol. The Courts too should bound themselves with a responsibility of delivering decisions which would be based on applicability of their prudent minds and not by any stereotypical mind-set. It is true that the world is changing speedily and so does the social status of women but how many of the women do actually get literate to empower themselves is a biggest question having the most subjective answer.

Today we see women talking about the so called gender equality, we see their aspiration to pursue all what is being pursued by their male counterparts, we see women talking of the independence and freedom, but how many of them do practice it in reality? In a country like India, unlike other religions marriage is sacrament but considering the present situation importance of the institution of marriage is diminishing which consequently is disturbing the culture of family, the one who suffers the most is children in such families.

Conclusion:
The present law needs a rational approach and shall go through a revision. The society changes at particular intervals and that the laws shall commiserate with the change. Bringing into force more and more laws is not the solution but implementing the already existing ones is what is required. Everyone right from the investigating authorities till the courts where justice is sought shall play their role diligently and try to strike a balance in society only then the misuse of law will not take place.

End-Notes

  1. To be referred to as  the Act  throughout the article.
  2. Section 2 (a) of the act provides the definition for aggrieved person which is  aggrieved person  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; the definition clearly indicates that the act provides specifically to women.
  3. John Enrich Edward Dalberg Available at http://www.goodreads.com/quotes/814115-absolute-power-corrupts-absolutely
  4. Section 3 of domestic Violence Act defines  Domestic Violence
  5. Available at http://www.meriam-webster.com/dictionary/violence.
  6. Gosh & Choudhari, pg 323
  7. AIR 1975 SC 1534
  8. Section 18 of PWDVA 2005
  9. Section 19 of PWDVA 2005which retrains the husband from disposing of property or disturbing the possession of shared household, irrespective of her legal inequitable interest in it.
  10. Section 21 of PWDA 2005, the protection provided in the said section should be given diligently by the judicial authorities. Due to this there are chances of future of child getting affected.
  11. Under Section 24 of Hindu Marriage Act, 1955 either of the spouses, husband or wife can be granted relief if the court is satisfied that the applicant has no independent income sufficient for his or her support and necessary expenses of the proceedings pending under the Act Under Parsi Marriage and Divorce Act, 1936 either Parsi wife or husband is entitled to claim expenses where the proceeding is pending under the Act
  12. P.K Das, law relating to cruelty to husband (2008) P.1
  13. AIR 2004 SC 3946
  14. http//:criticalanalysisof domesticviolenceLawinsection
  15. IOSR Journal of Humanities and Social Science(IOSR-JHSS) Volume10, ISSUE 2 (Mar-Apr 2013), PP41-44 e-ISSN:2279-0837, P-ISSN:2279-0845

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