Author: Anushka Chandra, Student at OP Jindal Law School
INTRODUCTION
Domestic violence in India is an age-old concept, we all know about it, have heard about it, and have seen enough of it happen in families around us, even if it was a chawl in the suburbs of Bombay, or a high rise building in a posh locality of Delhi. Brough to force in 2006, the Protection of Women Against Domestic Violence Act of 2005 allowed Indian society to have a wide and complete legal definition of domestic violence as a subject for the first time. Including not only violence in the gendered forms of sexual, verbal and emotional, the Act made space to include the Indian family narratives by adding economical abuse to the question too. In this article, I shall walk the reader through the 2005 Act, with its provisions and legal framework. In the other half of this article, the actual realities and the gap between law and social situations shall be highlighted with the use of data available from surveys conducted and the ways the Act can be made stronger to serve its purpose better.
DEFINITIONS OF DOMESTIC VIOLENCE
Domestic Violence is any and every act of gendered violence occurring between two people in an intimate relationship, presently or of the past. Perpetrators are mostly husbands, ex-husbands, boyfriends or intimate partners. The Act serves as the first law to go beyond the boundaries of the private to support and save the woman from an uncharted and unknown territory where she can, and almost always is, heavily mistreated. It remains a civil law for protection. Under Chapter 2, Section 3 of the Protection for Women Against Domestic Violence Act (from hereon to be referred to as PWDVA), defines the subject matter of domestic violence as follows:
- harms or injures or endangers the health, safety, life, limb or well-being, whether mental or physical, of the aggrieved person or tends to do so and includes causing physical abuse, sexual abuse, verbal and emotional abuse and economic abuse;
- harasses, harms, injures or endangers the aggrieved person with a view to coerce her or any other person related to her to meet any unlawful demand for any dowry or other property or valuable security;
- has the effect of threatening the aggrieved person or any person related to her by any conduct mentioned in clause (a) or clause (b);
- otherwise injures or causes harm, whether physical or mental, to the aggrieved person.[1]
Economic abuse has been defined under several different notes to include the concept of “Stridhan” or money given to the bride by her family for her own right and/or use:
(a) deprivation of all or any economic or financial resources to which the aggrieved person is entitled under any law or custom whether payable under an order of a court or otherwise or which the aggrieved person requires out of necessity including, but not limited 5 to, house hold necessities for the aggrieved person and her children, if any, stridhan, property, jointly or separately owned by the aggrieved person, payment of rental related to the shared house hold and maintenance;
(b) disposal of household effects, any alienation of assets whether movable or immovable, valuables, shares, securities, bonds and the like or other property in which the aggrieved person has an interest or is entitled to use by virtue of the domestic relationship or which may be reasonably required by the aggrieved person or her children or her stridhan or any other property jointly or separately held by the aggrieved person;
(c) prohibition or restriction to continued access to resources or facilities which the aggrieved person is entitled to use or enjoy by virtue of the domestic relationship including access to the shared household.[2]
PROCEDURE AND RIGHTS
The procedure for an aggrieved party to file for a case under the PWDVA is rather sensitized if you were to read the procedural guidelines as they exist in the handbooks or the relevant sections. The woman can file a case with a Protection Officer, Service Providers,[3] a Local SHO or even a Magistrate directly[4]. If filed with anyone other than the Magistrate, the officers must help the woman to file a DIR, or the Domestic Incident Report, where they shall guide her in the proper format and in the most comfortable way ask her to detail the events of her violence as her statements.
A Protection Officer has many duties[5] in the way they must help the Magistrate for the upkeep of the implementation of the PWDV Act. The Protection Officer is appointed directly by the governments and are primarily admitted as women for the comfort factors. They are directly answerable to the Magistrate and are the first point of contact between the victim and the Magistrate. The PO after registering the complaint and presenting the victim to the Magistrate is given the duty to ensure that the orders are enforced end to end.
A Service Provider are State registered voluntary organisations that specially run for the help of domestic violence victims, especially to aid them in the formatting of their DIR and to impart the knowledge for the woman to be well equipped with her rights. The Police must file the complaint as a criminal act under Section 498 A of the IPC (Cruelty)8, but must simultaneously file a complaint formally under the PWDV Act upon request of the victim.[6]
The Act gives many forms of redressals to be made available to the victim in Sections 9, 14 and 18-21. The Act also puts into legal focus that the victim has certain rights that must be followed throughout the course of the marriage. Redressals first, Section 9 provides the victim with Protection Officers. As mentioned above, their duty is also to safeguard and safekeep the victim in her residential home from further cases of violence of any sort. Section 14[7] is a right as well as a redressal, as the woman is given the Right for Counselling, mental along with legal, and she has every right to get her perpetrator to the Counselling sessions, or have sessions for his behaviour that the State must provide for. Section 187 offers the woman Protection Orders, where she has the right to be protected against her perpetrator in every form to prevent any further abuse or violence, and this can include, but not limited to, the complete ban on communications and interactions between the woman and the perpetrator. Section 197 provides her with the most important factor, residence. Keeping in mind Indian familial situations, it is very difficult to procure a residence which is completely on the woman’s name. But this section not only demands for a separate residence for immediate protection of the woman from her perpetrator’s violence, it can even ban the perpetrator from entering the shared residence of the couple and not allow any evictions by the male.
Section 207 provides for her monetary reliefs in the form of assets, shares, bonds, anything that was in her name that was taken, destroyed or abused, and monetary maintenance for herself and for her children. Section 217, finally, gives her the complete custody of her children, with only visiting hours being given to the father, protecting them from the dangers and mental hazards of having to watch such scenes unfold.
DRAWBACKS
Despite the various attempts at raising a better society and safeguards for the woman as mentioned above, the PWDVA still has certain drawbacks. These are aside from the general consensus that more than half of India’s women are not even properly aware of their rights against violence and the legal measures put in place for them. When this is coupled with the existing social situations of quieting a woman, or telling her to deal and bear with it because this is supposed to be a part of her life, what exactly are these women left with at the end of the day? The Act is useful, but the implementation has been too much of a problem for all the years since the law was brought into force. The Act sensitises the woman to her rights, but not the entire judicial committee appointed to take care of her plights. Neither the courts or the police have shown even half the sensitivity and care towards female victims of Domestic Violence in India.
More often than not, cases are being filed under the Section 498A of the IPC which talks about Cruelty against a woman. As defined under the section, Cruelty is “any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman”[8] This clause is very vague, and it leaves the entire situation to be assessed by the reporting police officer, who more often than not, has been reported to take the cases more towards the angles of verbal or physical abuse instead of the sexual abuse prospects clearly evident in the victim’s statements.
Under Chapter IV, Section 12(5)4 requires the Magistrate to complete the case along with the final verdict in 60 days (2 months) from the first hearing of the case. Never does this actually happen. As we all know, a very common image of India’s judiciary is a court full of piled up, incomplete cases. Hence it is no surprise that the case does not deliver its verdict in 60 days as legally specified since its first hearing. So many cases have even reported a no-show on the part of the defenders during hearings, despite warnings issues by Courts for them to attend the hearing.
Marital Rape despite being a non-criminalised crime, with a specific exception properly stated under Section 375 of the Indian Penal Code, gives its victims a recourse under the PWDVA. However, this is merely a civil proceeding. The wife can continue to live in the same house, but shall seek relief against her husband who shall be made to go through counselling. In my personal opinion, not only is this an act of forcing the woman to stay in the same room as someone who has stripped her of her dignity and self-worth, it also heavily depends on the concept of attempting to make sure that the husband would see his false ways and turn over onto a new leaf, a case that never really happens. The only way out for a woman in this situation is a divorce where she can legally cut her relations with the sexually abusive partner in marriage. But this still leads to open ended questions about the concepts intimate sexual abuse between live-in couples and relationships that are considered as marriage but are not so under the legal conditions through marriage licenses.
CONCLUSION
On a concluding note, there are certain other allegations that are placed on the PWDVA, one of the loudest being by men’s rights organisations that have time and again used the Act as a means to convince the larger public that women have been given far too much power. Section 32(2) of the Act states that a victim’s statement given to the police is conclusive evidence of the fact that the said events did occur, and the burden to prove otherwise is laid on the defender. This is done because no one aside from the man and woman would ever actually know what happens behind closed doors and in the realm of the private, basically pitting the scene as a “your words against mine”. Yet, this has been misused time and again by women who have wanted to settle score with men, or to take revenge about certain aspects that have wronged them in a marriage. Marriage is a rather complex concept and it complicates all matters regarding the same too. But statistics still show that women are actually at the receiving end of far more violence than men, and almost always at the hands of men and that still remains a far cry from the needs of a more equal domestic violence protection Act today.
REFERENCES
[1] As read under Chapter II, Section 3 of PWDVA 2005
[2] As read under Chapter II, Section 3, Explanation I Sub-clause (iv)(a)
[3] As read under Chapter III, Sections 4 and 5
[4] As read under Chapter IV, Section 12 of PWDVA 2005
[5] These can be read under Chapter III, Section 9 of the PWDVA 2005
[6] Duties of Service Providers and Police Officers are listed alongside those of the Magistrate; if the victim were to go to the Magistrate herself; under Chapter III, Section 5 of the PWDVA 2005
[7] As read under Chapter IV, Sections 14 and 18-21
[8] As read under Section 498, Subclause A of the Indian Penal Code 1860 here https://www.indiacode.nic.in/show-data?actid=AC_CEN_5_23_00037_186045_1523266765688§ionId=46286§ionno=498A&orderno=562
