By Aratrika Choudhuri, WBNUJS, Kolkata.

As a part of a two-article series on the Protection of Women from Domestic Violence Act, this article seeks to outline the key shortcomings in the provisions and implementation of the Act. The next article will focus on recommendations that seek to ameliorate these limitations and to aid victims of such violence to fully effectuate their rights under the Act.

All marriages are sacred, but not all of them are safe. The passage and subsequent enforcement of the Protection of Women from Domestic Violence Act (hereinafter ‘PWDVA’) in 2005 and 2006 respectively, heralded a comprehensive legal framework for tackling domestic violence, for the first time in India, which recognized the lack of safety not only in marital, but all domestic relationships. By expanding the definition of domestic violence and incorporating provisions that introduced substantial changes in notions of safeguarding women’s rights, this Act attempted to strike a balance between reconciliation and a deterrent pro-arrest policy. However, the recent Sixth Monitoring & Evaluation Report, 2013 brought out by the Lawyer’s Collective Women’s Rights Initiative, highlights numerous discrepancies and inequities in various spheres of this Act. This essay seeks to analyze the main lacunae in the substantive and procedural aspects of the PWDVA.

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Violence, “the extension of attempts to gain and maintain power over others”, is re-conceptualized as domestic when viewed through the lens of location (private), patriarchy (structural inequality and power), the material context (e.g. family and community resources, support networks, the physical impact of violence) and the discursive context (e.g. attributional and gendered analysis that examines  social and personal constructions of domestic abuse and discursive regulation of gender-power relations). Domestic violence in India is a function of gender roles and cultural notions regarding statuses and is prevalent among women, regardless of age, education level, socioeconomic class, and family living arrangement. The PWDVA envisioned a domestic relationship as comprising multifarious marital, consanguineous, adoptive and other relationships “in the nature of marriage”. But the Velusamy judgment, by pigeonholing relationships “in the nature of marriage” within the understanding of the common law marriage, undermined the intent of the law to cover live-in relationships.

Also, unlike the English law- the Domestic Violence, Crime and Victims Act, 2004- Section 2(a) of the PWDVA was interpreted by the Supreme Court as including only a woman as an “aggrieved person”, thus denying recognition to same-sex relationships and to the domestic violence occurring in them. Additionally, the judicial understanding of consanguinity remains unclear, as is observed in Araa v. Mirja where the close aunt-nephew relationship was surprisingly not considered as a domestic relationship. Given that it is not uncommon in India for aunts to reside along with relatives other than their children, this judgment may leave these women outside the purview of the PWDVA.

In order to address judicial subjectivity in and trivialization of determining what constitutes violence, the PWDVA has expanded the conceptualization of domestic violence to include physical, emotional, mental, verbal, sexual and economic abuse. But the wide definition of relatively minor offenses like verbal abuse has been criticized. Many argue that there are hypersensitive persons who imagine insults when none is intended and recognizing their whims would cause a chilling effect on healthy dialogue due to the slippery subjective criterion of name-calling, and plant seeds for marital discord.

The woman’s right to protection under Section 17 of the Act, co-exists with her right to live in the Shared Household and is not dependent on whether or not she had marked her physical presence in the Shared Household. Nonetheless, the PWDVA does not specify “the procedure established by law”, to evict a woman or exclude this right. Some of the restraining orders available under Section 19 directing the male respondent to refrain from visiting places ‘frequented by the aggrieved person’, which may include public places and his own home, unjustly curb his fundamental right to freedom of movement. By putting a restraint against alienation, disposal, or renunciation of rights in such a shared household, the law inhibits the rights of even those who may not have contributed to the dispute.

In S.R. Batra v. Taruna Batra, the Supreme Court unfairly excluded a daughter-in-law’s right to reside in the mother-in-law’s house, by holding that the property exclusively owned by the mother of the husband cannot be called ‘shared household.’ Despite the Act stating clearly that a woman has the right to reside in the shared household, irrespective of whether she has any right, title or interest in the same, the judges felt that the concept of ownership of property was the only decisive factor- a perspective not shared by other systems of jurisprudence. In Hindu law, for example, while ownership was vested with three generations of males, the women of the coparcenary who married into the family, in their capacity as mothers and daughter-in-laws, had the undisputed right to reside in it. This decision is indeed disheartening for aggrieved widows who cannot claim right of residence while living in the house of the deceased husband’s relative.

The settled position being that a non-compoundable offence cannot be compounded by the Magistrate; if the aggrieved person, acting on the protection Officer’s advice, files a penal complaint under section 498A of the I.P.C., the Magistrate shall have no power to recall the process even if the parties later on so desire, rendering amicable settlement under Sections 14 and 15 of the PWDVA impossible. The PWDVA allows judges to direct that joint counseling sessions be held for the victim and the perpetrator. The latter is however not permitted to plead any counter-justification for the violence, which virtually negates the possibility of reaching a mutually agreeable settlement. According to Section 23, the Magistrate may grant an interim ex parte order, under Section 18, upon prima facie satisfaction that “there is a likelihood” of domestic violence being committed. On reading these sections together, the dangerous consequence may ensue that an unscrupulous woman may obtain an ex parte injunction order merely by introducing doubts that the male respondent “may subject her to emotional abuse”, effectively restraining him from entering his own home or operating his own bank account. When applied in conjunction with Section 31, the breach of such interim order attracts substantive sentence, rendering him totally at her mercy. Moreover, Section 32 empowers the court to conclude that there has been breach of protection order under Section 31, which is a cognizable and non-bailable offence (punishable with imprisonment which may extend to 1 year, or with a fine which may extend to 20,000 rupees) upon the “sole testimony of the aggrieved person.” This is a highly dangerous position given the possibility of misuse, as has occurred with Section 498A of the I.P.C.

By reading the provision for maintenance relief under the PWDVA as concomitant with the relief under Section 125 of the Cr.P.C., the distinction between the two is ignored, i.e., maintenance for women under Section 125 of the Cr.P.C. is determined in terms of preventing destitution of women, while the PWDVA ensconces maintenance with statutory recognition as a right that transcends the Section 125 of the Cr.P.C. Maintenance, under the latter, is often not granted to working women, as the women’s employment acts as a bar to maintenance and the Courts do not enquire into the comparative income of the woman and her partner or the responsibilities, liabilities and child care involved. The Courts tend to grant a lump sum combining the reliefs of Maintenance and Compensation together, but do not give earnest consideration to other monetary reliefs provided under this Act, such as compensation for loss of earnings, medical expenses, loss caused due to destruction or removal or damage of any property.

Thus, while the PWDVA is a laudable effort to safeguard women from the perpetrators of domestic violence, there exist numerous loopholes in the Act and its implementation which prevent it from securing its uninhibited fruition. In the next follow-up article, certain recommendations will be detailed that would aid in securing this objective.

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