This article on ‘CHALLENGES AND ISSUES RELATED TO DOMESTIC VIOLENCE IN INDIA‘ was written by an intern at Legal Upanishad.
The offence of domestic violence is prevalent in historical times. Women in society have continuously been tortured, threatened, and subjugated by men to retain their superiority. It is still prevalent but remains invisible due to a lack of complaints. We have witnessed a lot of movements starting against violence toward women because of their unequal status in society.
The article will be highlighting the legal challenges and issues which is faced due to the incorporation of the Domestic Violence Act, 2005.
Initially, there were no laws against such violence. It was considered that men have complete rights over their wives and nothing can interfere with their personal relationships. Also, there was a lack of awareness amongst women between right and wrong. They always respected the choice and gestures of their husbands considering it as the right of the husband over them. This gave birth to a frightful form of violence committed against women which included marital rape, dowry death, horrific beating, humiliation, etc. stating a brutal form of wide sped ephemeron of abuse.
Domestic violence manifests to be physical, mental, and verbal abuse which are grievous in nature. The situation becomes such that it anguishes the faith of women from their families. There was the enactment of various legislations that gave power to the women in respective areas based upon the concept of women empowerment and equality but for abuse against them, they had a mere tail of sections of IPC, 1860.
LAWS OVER DOMESTIC VIOLENCE IN INDIA
Over a period of time, we have seen a lot of advancement and enactment of the laws particularly dealing with the antisocial issues pertaining to women’s security. Apart from S.489-A of IPC 1860, there are several other acts specifically concerning the various forms of violence against women. They were The Protection of Women from Domestic Violence Act, 2005, The Dowry Prohibition Act, 1961, The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, Indecent Representation of Women (Prohibition) Act, 1986, etc. apart from this several common laws have also gone through amendments to strengthen the existing laws such as The Criminal Law Amendment Act, 2013.
The Protection of Women from Domestic Violence Act, 2005
The bill for the Act was passed on 24th August 2005 in Lok Sabha and on 29th August 2005 in Rajya Sabha. Further, the bill got the assent of the President on 13th September 2009 and became a statute represented as the Protection of Women from Domestic Violence Act, 2005.
Why the act was enacted?
The preamble of the Act provides for the advanced and effective protection of the fundamental rights of women as provided under the Indian Constitution who is victimized by abuse, torture, cruelty, and harassment committed by their family against them.
Highlights of the important provisions under the Act
S. 3 of the Act gives a more wide, uniform, and effective definition of what can be counted as domestic violence. It includes physical, emotional, verbal, economic, and sexual abuse and any form of harm and injuries to the body or mind as well as danger to life, limb, health, or wellbeing.
S.4 of the Act provides that aside from victims making complaints of domestic violence against them under the act, the complaint can be filed by any person who has grounds to believe that the violence has been committed. It can be neighbors, any relative, or social workers.
Further S.22 can make the magistrate pass an order for the payment of the compensation or damages by the respondent for causing torture and distress to the victim.
Apart from seeking the remedies under this act, the victim women can also claim ideal remedies under civil and matrimonial laws which recognize the grounds of such domestic abuse.
LEGAL ISSUES AND CHALLENGES
Although the Protection of Women from Domestic Violence Act, 2005 ensures the justice and protection of rights of the women who have gone through domestic abuse, with passing time, it can be seen that the effectiveness level of the act is not satisfactory. Still, the cases of domestic violence subsist due to unawareness in the country.
Everyone is equal in the eyes of law and every individual whether national or alien is granted some of the basic rights which though not absolute but cannot be taken away by anybody. The rights incorporated under the Indian Constitution ensure equality amongst men and women across the country. Below mentioned are some of the legal issues faced by the domestic violence act in India.
- It is an ignominy of the country and laws that despite their efforts, women are still struggling for their position and equality. Domestic violence is an example of the same. Coming to justice and remedy, it is unfortunate to evaluate that there is a lack of awareness about the laws and provisions of the act which could help them out.
- According to the Act, the victim woman can straightly move to the Protection Officer under the Act for the sake of justice but it has been recorded that very few persons directly move to the Protection Officer in these cases and mainly first go to make a complaint before the police.
- It is the Protection Officer who handles such cases but it is so unfortunate to see that the appointed Protection Officer takes up the cases just as mere work rather than taking up to provide aid to the victim. The enactment of the law is such that the result should be given within 90 days but due to the lethargic and lenient work of officers, the cases remain unsolved within the stipulated time.
- Apart from the above-mentioned issues, the law has been such that now a case, the laws made for the benefits and security of women are getting misused by them to make a trap against innocent men. We come across so many cases relating to this which shows sheer injustice to the men. Due to the exclusive application of these kinds of laws, it is only women who can make a complaint against men. It clearly violates the concept of equality before the law under A.14 of the Indian Constitution.
- As per S.32(2) of the Protection of Women from Domestic Violence Act, 2005, the court of justice will always consider statements made by a victim as right and true. For establishing the commitment of the offence, the statement of such a woman is sufficient. Therefore, no need arises to provide any supporting evidence for it. This bars the remedial claim of men against women who have falsely trapped them by filing a false complaint to seek revenge over personal grudges.
- Another issue is that if a victim woman files a complaint and it is deliberately considered that the abuse has been committed by the husband without any proof. She is not even asked to prove them. The magistrate directly takes steps for her protection to avoid the commission of the offence in the future under S.18 of the act. This gives leverage of protection to a woman and chances of punishment of an innocent person.
Apart from the issues, the act has some positive reliance as well. Although the Act is misused yet the purpose of the act was for benefit of the women. The act is a comprehensive statute. It applies to married women who have been with their partners in a shared household including both nuclear and joint families. Even the mothers, sisters, widows, or single women living with such an abuser person can get legal protection under the Act.
The Act also applies to those females who are in live-in-relationship as it provided a broad interpretation of the term “domestic violence” which included live-in-relationships. In the case of Chanmuniya v. Virendra Kumar Singh Kushwaha, the issue was related to the receiving maintenance in live-in relationships under S.125 of CrPC. The court said that the term “wife” shall have a broad interpretation including such women who is living in a live-in relationship for a long time. There is no need for proof of marriage to get maintenance under S.125 of CrPC.
Further, in the case of Sandhya Manoj Wankhade v. Manoj Bhimrao Wankhade, the issue before the court was whether the relative of the husband includes females under s.2(q) of Act. The court said that the females are considered a relative of the husband. Although, in the proviso of s.2(q) the term “female” is not been used. However, the term “relative” does not restrict the inclusion of females.
In the case of Harsora v. Kusum Harsora, the scope of the Protection of Women from Domestic Violence Act, 2005 got broadened. The term “Adult Male” was deleted making way for the prosecution of victim women of harassment and abuse.
Main Legal Challenges
- In past years, it has been recorded that the laws made for the protection of women were getting misused by taking exorbitant advantage by filing false complaints.
- Initially, S.498-A of IPC, 1860, and S.113-A of Indian Evidence Act, 1872 were inserted through the 1983 Criminal Law Amendment to govern the horrific incidents of newly married women because of dowry and other demands of their in-laws. The objective of the provision was to look after these evil offenses. Unfortunately, such women could also not receive any recourse from the public authorities as it was against the traditions.
- It was seen in several cases that women falsely allege their husbands under S.498-A of IPC, 1860 for sake of revenge and personal grudges or to get rid of in-laws. The misuse of the section and other relatable Acts are still there and increasing at a fast pace. The educated women doing so know that the offence under this section is cognizable and non-bailable.
- The Protection of Women from Domestic Violence Act, 2005 is inexhaustive and has several lacunas for only serving the false allegations of women and punishing innocent men. It is a general principle and the accused is presumed to be innocent until proven guilty. In these cases, the process to defend and prove innocence is completely barred.
SUGGESTIONS TO OVERCOME CHALLENGES AND ISSUES
- The law administering the offence is inadequate to resolve current issues of domestic abuse. The law should be based upon gender equality and implementation should be such that no innocent is punished without any fault.
- There should be awareness programs for the Domestic Violence Act and other related acts in those sections of society where it is actually needed and the same shall be done by the government and NGOs.
- The period for justice should be abided by.
- It is seen that mainly the protection officers appointed are male. Therefore, the government shall recruit female officers too.
- Before punishing the innocent person, the court should ask for proof of the same. Without the establishment of guilt, the innocent person should not be convicted.
- There should be the appointment of those persons as protection officers who are true to their work and are working to help the victim and not just for the sake of work.
The identity of any civilized society is Gender Equality. It is completely justified to take steps for the protection of women, but doing so should not violate the concept of equality. It can be seen that though the government is taking necessary steps to curb the act of domestic violence in society, it is failing to do so justifiably. The act of domestic violence has several defects which clearly seem to violate the principle of natural justice and provisions of other major laws.
- Protection of Women from Domestic Violence Act, 2005. https://www.indiacode.nic.in/bitstream/123456789/15436/1/protection_of_women_from_domestic_violence_act%2C_2005.pdf.
- Ravneet Kaur and Suneela Garg. (n.d.). Addressing Domestic Violence Against Women: An Unfinished Agenda. Indian Journal of Community Medicine: Official Publication of Indian Association of Preventive & Social Medicine. https://www.ncbi.nlm.nih.gov/pmc/articles/PMC2784629/.
- Sesha Kethineni. January 2017. The Problem of Domestic Violence in India: Advances in Law and the Role of the Extra-Legal Institutions. Research Gate. https://www.researchgate.net/publication/315867996_The_Problem_of_Domestic_Violence_in_India_Advances_in_Law_and_the_Role_of_Extra-Legal_Institutions.
- Cynthia L. Chewter. (n.d.). Violence Against Women and Children: Some Legal Issues. https://www.lians.ca/sites/default/files/documents/00074313.pdf.