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Misuse of the Protection of Women from Domestic Violence Act, 2005

Jan. 23, 2020   •   Architi Batra

The Protection of Women from Domestic Violence Act is a civil law that was passed in 2005 and is directed towards providing relief to the aggrieved party; under this act, the woman who faces violence at home. The origin of the Act is Article 15 (2) of the Constitution of India, which states that “State can make special provisions for women and children” towards realizing the right to equality.

From a feminist’s point of view, the law has traditionally woken from a patriarchal approach and the law’s treatment of women in relation to men has not always been equal and fair. This Act was the first substantial attempt made to draft the law from a new perspective within an old framework.

However, women have insufficient understanding of the law and lack of access to the courts. Hence it is necessary to provide the necessary infrastructural tools with which to access the law can be made accessible. In the Act, the mechanism to breach this gap has been put in place by creating the office of the Protection Officer and recognizing the role of the Service Providers. Duties have been imposed on the government to provide legal aid, medical facilities and shelter homes in the hope that women in distress be given all these facilities. The Act defines “Domestic Violence” under Section 3 for the first time in Indian law. It is a comprehensive definition and is based on definitions in international law such as the UN Declaration on Violence Against Women and a Model Code.

Definition of domestic violence. —For the purposes of this Act, any act, omission or commission or conduct of the respondent shall constitute domestic violence in case it—

(a) 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; or

(b) 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; or

(c) has the effect of threatening the aggrieved person or any person related to her by any conduct mentioned in clause (a) or clause (b); or

(d) otherwise injures or causes harm, whether physical or mental, to the aggrieved person.

The Act recognizes domestic violence as a human rights violation. It recognizes a woman’s right to live in a violence-free home. To realize this right, the Act recognizes a woman’s right to residence and her right to obtain protection orders under the law. The relief provided in the Act is meant to provide immediate relief in emergency situations. It also has certain crossovers from civil to criminal law when an order has been violated. [1]

In a 2018 judgment, the High Court of Gujarat in the case of Bhartiben Bipinbhai Tamboli v. State of Gujarat and Ors. while extensively discussing the provisions under the Domestic Violence Act remarked that:

“The domestic violence in this country is rampant and several women encounter violence in some form or the other or almost every day. However, it is the least reported form of cruel behavior. A woman resigns her fate to the neve ending cycle of enduring violence and discrimination as a daughter, a sister, a wife, a mother, a partner, a single woman in her lifetime. This non-retaliation by women coupled with the absence of laws addressing women’s issues, ignorance of the existing laws enacted for women and societal attitude make the women vulnerable. The reason why most cases of domestic violence are never reported is due to the social stigma of the society and the attitude of the women themselves, where women are expected to be subservient, not just to their male counterparts but also to the male relatives.” [2]

Domestic violence can be defined as a pattern of behavior in any relationship that is used to gain or maintain power and control over an intimate partner. Domestic violence, under this act, can be in any form. The abuse can be in the form of physical, mental, emotional or physiological actions of threats that are used to discriminate against the other partner in the relationship. This is a stellar step to protect women against domestic violence. However, the one place where the act fails is not including the husband under the ambit of domestic violence too.

According to the general perception which this Act takes upon, women are the victims and men are the perpetrators. Because of this situation, some dishonest women have started misusing the act of domestic violence to gain personal benefits from their spouse and her in-laws. Men's organizations such as the Save Indian Family Foundation have opposed the law, arguing that it might be misused by women during disputes.[3]

Renuka Chowdhury, the former Indian Minister for Women and Child Development, agreed in a Hindustan Times article that "an equal gender law would be ideal. But there is simply too much physical evidence to prove that it is mainly the women who suffer at the hands of man.”[4]

Former Attorney General of India Soli Sorabjee has also criticized the broad definition of verbal abuse in the act.

According to the former President of India, Pratibha Devisingh Patil, "Another disquieting trend has been that women themselves have not been innocent of abusing women. At times women have played an unsavory, catalytic role in perpetrating violence whether against the daughter-in-law, the mother-in-law or female domestic help. Instances exist whereby protective legal provisions for the benefit of women have been subjected to distortion and misuse to wreak petty vengeance and to settle scores. Some surveys have concluded that 6 to 10 percent of dowry complaints are false and were registered primarily to settle scores. It is unfortunate if laws meant to protect women get abused as instruments of oppression. The bottom-line, therefore, is the fair invocation of legal provisions and their objective and honest implementation." [5]

There are numbers of cases which prove that there is a misuse of the Domestic Violence Act:

  1. In the case of Major Singh & Anr. v. Sarabjit Kaur, the wife filed a false complaint against her husband because she was having an extramarital affair. She tried to threaten her husband but her husband filed for divorce. The judgment passed by the Punjab High Court was that Protection of Women from Domestic Violence Act is being misused to terrorize the spouse, their families and distant relatives and this phenomenon has now acquired the name of ‘legal terrorism'.
  2. In the case of Smt. Geetanjali v. Sri B.B. Anantha, the wife filed a false complaint against her husband to acquire property from him. The facts of the case show that the wife was tortured by her husband she didn't get proper treatment but after the investigation, it was found that the case is a false and Metropolitan Magistrate, Bangalore passed the judgment by stating that, it is noted that testimony of the complainant woman throws light on the conduct of the complainant and the extent, to which she has falsified and concocted various allegations and has suppressed important facts in order to harass her husband and parents-in-law and had misused the Protection of Women from Domestic Violence Act 2005 as a tool to extort unjustified money from her husband for unjustified for personal gain.
  3. Similarly, in the case of Bawinder Singh v. Richa Sharma, the judgment was passed by the Punjab High Court and it was held that it has been observed that the Protection of Women from Domestic Violence Act, 2005, suffers from inherent flaws which tempt women to misuse their provisions and men to dread being prosecuted under law without any rhyme or reason. The court observed that the notable flaw in this law is that it lends itself to such lazy misuse that women will find it hard to resist 8 of 9 the temptation to teach a lesson to their male relatives and will file frivolous and false cases.

The shortcomings of the Domestic Violence Act should not, however, undermine its necessity in the Indian context. It is worth noting that cases of dowry death, dowry prohibition and torture/cruelty by husband and other relatives collectively constituted 48.54% of registered crimes against women in the country in 2008. This implies that women in India, irrespective of socio-cultural differences, continue to be exploited, harassed and tortured in the domestic sphere. Hence the ‘female bias’ of the recent act or its potential for being misused should not be exaggerated, even though it is necessary to be careful about such deviations.[6]

In the case of Krishna Bhattacharjee v. Sarathi Choudhury and Another, the Apex Court while elucidating on the duty of courts while deciding complaints under the Domestic Violence Act stated that:

● It is the duty of the Court to scrutinize the facts from all angles whether a plea advanced by the respondent to nullify the grievance of the aggrieved person is really legally sound and correct.

● The principle “justice to the cause is equivalent to the salt of the ocean” should be kept in mind. The Court of Law is bound to uphold the truth which sparkles when justice is done.

● Before throwing a petition at the threshold, it is obligatory to see that the person aggrieved under such a legislation is not faced with a situation of non-adjudication, for the 2005 Act as we have stated is a beneficial as well as assertively affirmative enactment for the realization of the constitutional rights of women and to ensure that they do not become victims of any kind of domestic violence.

A 2014 study by the United Nations Population Fund and the International Center for Research on Women found that 60% of men reported using some form of violence—physical, economic, emotional or sexual—against their wife or partner. Emotional violence had the highest prevalence, with 41% of men admitting that they had used it at some point on their wives or partners.[7]

Only because domestic violence is invisible, it doesn’t mean it still isn’t widely prevalent all over the country. So an intellectual solution to the apparent misuse wouldn’t be striking down the whole provision but taking appropriate steps to curb it.

The misuse of the Domestic Violence Act can reduce if:

  1. There is an addition of the word “Male” in the Domestic Violence Act. It will result in a decrease of misuse.
  2. Males should not get threatened with the warnings of their wives. They should file a complaint against their wives.
  3. A proper investigation should take place by the police after registering the complaint by the wife.
  4. A committee should also be formed where the innocent men have been acquitted, as watchdogs to monitor and reviews orders by the judiciary.
  5. Even before arresting males proper investigation must be made as domestic violence is non-bailable and no proof is required for an arrest.

[The co-authors Aishani Vij and Jyotsana Sachdev are 3rd Year and 2nd Year BA.LLB students from Vivekananda Institute of Professional Studies and Jagannath International Management School, both affiliated with Guru Gobind Singh Indraprastha University respectively.]


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