Introduction
Protection of women is neither a novice need nor a mere national issue. A number of international Conventions have also recognized the need to protect women. For instance, the Vienna Accord (1994), the Beijing Declaration and the Platform for Action (1995), Convention on Elimination of All Forms of Discrimination Against Women (CEDAW), amongst others. India too is no alien to cruelty against women and thereof the need to protect women from all violence was felt. It is a sad state of affairs where the women are mostly subjected to violence by their own family members. Thus, a need to protect women from domestic violence was felt. In order to do so, both criminal and civil remedies are provided by law. The aim of this article is to give the reader an overview of such remedies available in India.
Criminal Remedies: Indian Penal Code & Criminal Procedure Code
The criminal law in India is primarily governed under the Indian Penal Code (hereinafter referred to as IPC) and Criminal Procedure Code (hereinafter referred to as CrPC). Under the IPC, the major provisions that are dealing with the protection of women against domestic violence are Section 498-A.
Cruelty (Section 498-A)
Section 498-A of IPC prescribes punishment for a relative of the husband or the husband himself in case a woman is subjected to cruelty by them. It prescribes a punishment of imprisonment of upto 3 years and a fine. The definition of cruelty is provided under Section 498-A Explanation. It includes-
- Any act which is wilful in nature on part of the perpetrator and is likely to affect the woman in such a way that the woman is driven to commit suicide or
- Physical or mental injury, or
- Harassment of the woman with a view to extort money from her relatives.
Section 498- A was held to be constitutionally valid in the case of Social Action Forum for Manav Adhikar v. Union of India[1]. in addition to upholding the constitutional validity of Section 498-A. The case also laid down the procedure of investigation recognised a special duty of care that the investigating officer must have while investigating such matter.
However, a serious concern has been expressed by the Hon’ble Apex Court regarding the misuse of the provision. In the case of Rajesh Sharma v. State of U.P.[2] the Apex Court noted that there is a need to check the tendency to rope in all the family members by making omnibus allegations to settle matrimonial disputes. The fact that most of such complaints were filed in heat of the moment over trivial issues and were not bona fide was troublesome. Besides, uncalled for arrests, ruin chances of settlement is arrived at, proceedings continue since offence under Section 498-A is a non-compoundable resulting in uncalled hardship to the parties. Thus, the solution was thought to be an extensive investigation.
In addition to Section 498-A, the IPC also punishes the husband in case of dowry death under Section 304-B other than the remedies against inter alia grievous hurt, hurt, abetment to suicide.
Order For Maintenance Of Wives, Children And Parents (Section 125, CrPC)
Section 125 of CrPC provides for an order for maintenance of wives, children and parents. The Section is not per se punitive in nature but is rather preventive.[3] The definition of wife under Section 125 is wide enough to include not only a married woman but also a divorced woman[4], the second wife[5] and a woman in a live-in relationship. However, it doesn’t include a woman whose marriage is void.[6]
Civil Remedies: Protection Of Women Against Domestic Violence Act, 2005
The Protection of Women from Domestic Violence Act, 2005 (hereinafter referred to as the Act) was brought into force w.e.f. October 26, 2006.
The aim of the Act was to provide more effective protection of the rights of women guaranteed under the Constitution who are victims of violence of any kind occurring within the family. Civil Law was felt to be inadequate to provide a wholesome remedy to women who have been subject to torture by their family members.[7] For instance the right to maintenance under the Hindu Marriage Act, 1955 is available only as an ancillary relief to the remedy of Judicial Separation or Divorce.
Domestic Violence
Section 3 of the Act defines Domestic Violence. It includes physical abuse, sexual abuse, verbal and emotional abuse as well as economic abuse[8]. In the case of Vajresh Venkatray Anvekar v. State of Karnataka[9]it was held that the view that one or two beatings are not sufficient in the ordinary course for a woman to commit suicide is not acceptable. Assault on women cannot be accepted as social norm. The court should be sensitive to women’s problems. In the case of V.D. Bhanot v. Savita Bhanot[10] it was held that when a woman of 63 years having no means of sustenance after 31 years of marriage, compelled to live alone falls within the definition of “domestic violence”.
Domestic Relationship
In order to bring an action for domestic violence, there must be a domestic relationship between the perpetrator. Domestic relationship means a relationship between two persons who live or have, at any point of time, lived together in a shared household, when they are related by consanguinity, marriage or relationship in the same nature. The term ‘in the nature of marriage’ has been given a wide interpretation. In the case of Indra Sarma v. V.K.V. Sarma[11] the Supreme Court has laid down guidelines for testing under what circumstances a live- in relationship would fall within the expression “relationship within the nature of marriage”. However, in the case of D. Velusamy v. D. Patchaiammal[12] it was held that merely a one night stand or spending weekend together is not a domestic relationship.
Who Can Avail Remedies Under Domestic Violence Act, 2005?
Section 2(a) of the Act defines an aggrieved person as a “woman” who is or has been in a “domestic relationship” with the perpetrator and who alleges to have been subjected to any act of domestic violence by the perpetrator. Thus, even if the woman is no longer with the respondent, she can avail remedies under the Protection of Women Against Domestic Violence Act, 2005.[13]
Against Whom A Remedy Is Available?
Section 2(q) of the Act defines respondent as persons who can be treated as perpetrators of violence against women. In the case of Hiralal P. Harsora v. Kusum Narottamdas Harsora[14], it was held that the definition is not limited to adult male persons but also includes women and non- adult males. The landmark judgement overruled the prior judgement of Ajay Kant Sharma v. Alka Sharma[15] In the case of Sandhya Manoj Wankhade v. Manoj Bhimrao Wankhade[16] it was held that the “Relative” of husband or the male partner include females. Legislature never intended to exclude female relatives from the ambit of complaints that could be made under the Domestic Violence Act 2005. Though the expression “female” is not used in the provision to Section 2(q), but no restrictive meaning can be given to expression “relative” nor has said expression been defined to make it specific to makes only.
Remedies Under Protection Of Women Against Domestic Violence Act, 2005
The major remedies available under the act are as follows:
Section 17(1) states that every woman in a domestic relationship shall have the right to reside in the shared household, irrespective of whether or not she has any right, title or beneficial interest in the same. Similarly, Section 17(2) prohibits the respondent to evict or exclude the aggrieved person from the shared household. In the case of Vimlaben Ajitbhai Patel v. Vatslaben Ashokbhai Patel[17] it was held that the woman is not entitled to the property of the respondent absolutely but her right to a resident under the DV Act extends only to joint properties in which husband has a share.
In the case of Ishpal Singh Kahai v. Ramanjeet Kahai[18] it was held that the victim can apply for a residence order to the court in respect of a shared household, which includes their matrimonial home, whether or not she has any right title or beneficial interest therein.
The relief of residence orders is thereby passed under Section 19 of the Act. Under Section 19 of the Act, the magistrate may pass residence orders-
- Restraining the respondent from dispossessing or in any other manner disturbing the possession of the aggrieved person from the shared household, whether or not the respondent has a legal or equitable interest in the shared household;
- Directing the respondent to remove himself from the shared household;
- Restraining the respondent or any of his relatives from entering any portion of the shared household in which the aggrieved person resides;
- Restraining the respondent from alienating or disposing off the shared household or encumbering the same;
- Restraining the respondent from renouncing his rights in the shared household except with the leave of the Magistrate; or
- Directing the respondent to secure the same level of alternate accommodation for the aggrieved person as enjoyed by her in the shared household or to pay rent for the same, if the circumstances so require.
In the case of S.R. Batra v. Taruna Batra[19]it was hald that wife’s claim for alternative accommodation in terms of Section 19(1)(f) can only be made against her husband and not against her in-laws or other relatives of the husband.
Thus, while Section 17 talks about right to reside in shared household whereas Section 19 of the Act provides for the right to seek residence orders.
2. Protection Orders (Section 18)
Under Section 18 of the Act, the magistrate is empowered, on the basis of his prima facie opinion, to pass a protection order to prohibit the respondent from-
- Committing any act of domestic violence;
- Aiding or abetting in the commission of acts of domestic violence
- Entering the place of employment of the aggrieved person or, if the person aggrieved is a child, its school or any other place frequented by the aggrieved person;
- Attempting to communicate in any form, whatsoever, with the aggrieved person, including personal, oral or written or electronic or telephonic contact;
- Alienating any assets, operating bank lockers or bank accounts used or held or enjoyed by both the parties, jointly by the aggrieved person and the respondent or singly by the respondent, including her stridhan or any other property held either jointly by the parties or separately by them without the leave of the Magistrate
- Causing violence to the dependants, other relatives or any person who give the aggrieved person assistance from domestic violence
- Committing any other act as specified in the protection order.
In the case of Madhusudan Bhardwaj v. Mamta Bhardwaj[20]two important factors were laid down which need to be proved in favour of the aggrieved woman, (i) opportunity of hearing to the parties; and (ii) on being prima facie satisfied with regard to happening of domestic violence or likely to happen thereof. However, it cannot be accepted that only upon providing an opportunity of hearing such orders are required to be passed.
In the case of Saraswathy v. Babu[21] it was held that the conduct of parties even prior to commencement of DVA, 2005, reiterated, can be taken into consideration while passing an order under Sections 18, 19 and 20.
3. Monetary Reliefs (Section 20)
The adjudicating magistrate may direct the perpetrator to compensate in terms of monetary relief to meet the expenses incurred and losses suffered by the aggrieved woman in addition to any child of the aggrieved person as a result of the domestic violence and such relief may include-
- The loss of earnings;
- The medical expenses;
- The loss caused to the aggrieved woman on account of the destruction, damage or removal of any property from her control;
The remedy of maintenance under this section is in addition to an order of maintenance of Section 125, Criminal Procedure Code. Further the monetary relief so granted must be adequate, fair and reasonable and consistent with the standard of living to which the aggrieved woman is accustomed to.[22]
In the case of Ajay Kumar v. Lata[23] claim of maintenance against the brother of the deceased husband, in case of a shared household in ancestral joint Hindu family property, and joint business between said brother and the deceased husband, allowed by the courts below and direction for interim maintenance was confirmed.
4. Custody Orders (Section 21)
Section 21 of the Protection of Women Against Domestic Violence Act, empowers the magistrate to grant temporary custody of any child or children to the aggrieved person, with or without the visitation rights to the respondent.
5. Compensation Orders (Section 22)
Under Section 22 of the Protection of Women Against Domestic Violence Act, the magistrate is empowered to direct payment of compensation and damages for injuries- both physical and mental injuries.
While the Act is the major civil remedy against the respondent, other civil remedies include inter alia Divorce, Judicial Separation, Restitution of Conjugal Rights, Maintenance, Alimony.
Conclusion
Despite us stepping into the 21st century, we as a society have repeatedly let down the majority of the genders we have. May it be a woman or a transgender? Thus the legislature has time and again tried to give more protection to women especially in their domestic arena. The Section 498- A and the Domestic Violence Act are a welfare legislation enacted to provide criminal and civil remedies to a woman against any person who is treating her with cruelty. Such a person maybe a husband or even a relative of the husband, even if it is a woman. The remedies range from monetary relief to imprisonment. However, the question that arises is whether the remedies are actually enough?
The legislature and only do so much as to draft certain laws. The Judiciary can only do so much to provide a feasible interpretation of the law and punish the wrongdoer to the best of its ability the Executive can only do much to investigate the matter that comes in front of it. So what needs to be done? What needs to be done is to spread awareness and empower women to actually raise voices against their perpetrators who are wearing the mask of relations. They may be your husband, you father, your mother, your brother, your sister. Women need to be socialized in the manner which would actually help them to speak up and effectively seek the help of the laws made for their protection. At the same time, they have to be taught the importance of these laws and how their misuse even by a single woman creates a problem for women who actually need protection.
[1](2018) 10 SCC 443.
[2](2018) 10 SCC 472.
[3]Bhagwan Dutt v. Kamla Devi, (1975) 2 SCC 386.
[4]Mushaque Mondal v. Joysun Bibi, 1977 Cri LJ 484 (Cal).
[5]Badshah v, Urmila Badshah Godse, (2014_ 1 SCC 188.
[6] Bajirao v. Tolan Bai, 1980 Cri LJ 473 (Bom).
[7]Indra Sarma v. VKV Sarma, (2013) 15 SCC 755; Maran Nama v. State of Tripura, (2010) 90 AIC 833 (Gau); Vandhana v. T. Srikanth, (2007) 5 CTC 679.
[8]Saraswathy v. Babu, (2014) 3 SCC 712.
[9](2013) 3 SCC 462.
[10](2012) 3 SCC 183
[11](2013) 15 SCC 755.
[12](2010) 10 SCC 469.
[13]Savita Bhanot v. Lt. Col. VD Bhanot, (2010) 90 AIC 471 (Del); M. Palani v. Meenakshi, (2008) 2 CTC 117; Krishna Bhattacharjee v. Sarathi Chaudhary, (2016) 2 SCC 705.
[14](2016) 10 SCC 165.
[15](2007) 4 MPLJ 193.
[16](2011) 3 SCC 650.
[17](2008) 4 SCC 649.
[18](2011) 3 Mah LJ 849 (Bom); Manmohan Attavar v. Neelam Manmohan Attavar, (2017) 8 SCC 550.
[19](2007) 3 SCC 169.
[20](2009) 3 MPLJ 459.
[21](2014) 3 SCC 712
[22]Section 20(2)
[23](2019) 15 SCC 352.
This article has been written by Aakriti Gupta, 5th Year BA LL.B student at Army Institute of Law, Mohali.
