Men, their rights, and nothing more; women, their rights, and nothing less
Susan B Anthony, Known for her feminist rights
The Protection of woman from domestic violence act was enacted in year 2005. This paper attempt to guide its readers through basic tenets of domestic violence law in India, the latest judicial position and enforcement mechanism. For the first time the parliament has recognized the relationship in nature of marriage as one of domestic relationship. This paper further attempt to highlight as to how live in relationship would squarely fall within ambit relationship in nature of marriage. The Problem of domestic violence against woman is one of those instances where she is systematically deprived of her basic human rights behind the four walls of shared household. This paper also attempt to show the easy cost effective procedural mechanism available under this law and further take our readers to the statistics showing gaining crime of domestic violence against woman. All these statistics are also an eye opener for the law maker and members of civil society to raise up their voice against gender prejudice.
Key words: Domestic violence, Live in Relationship, Marriage.
BACKGROUND & INTRODUCTION
The beauty of the Indian Constitution is that it includes 'I' 'you' and 'we'. Such a magnificent, compassionate and monumental document embodies emphatic inclusiveness which has been further nurtured by judicial sensitivity when it has developed the concept of golden triangle of fundamental rights. If we have to apply the parameters of a fundamental right, it is an expression of judicial sensibility which further enhances the beauty of the Constitution as conceived of. In such a situation, the essentiality of the rights of women gets the real requisite space in the living room of individual dignity rather than the space in an annex to the main building. That is the manifestation of concerned sensitivity. Individual dignity has a sanctified realm in a civilized society. The civility of a civilization earns warmth and respect when it respects more the individuality of a woman. The said concept gets a further accent when a woman is treated with the real spirit of equality with a man. Any system of treating a woman with indignity, inequity and inequality or discrimination invites the wrath of the Constitution.
Preamble of Constitution of India guarantees Justice, Liberty, and Equality & Fraternity. The Part III of constitution has recognized some of the inalienable rights to which few of natural law philosophers termed as natural rights. Article 14 guarantees equality before law and equal protection of laws. Article 15 is a species of Article 14. Article 15 clause 3 recognizes special provisions for women and children. The theory of equality run around Article 14 to 18 whereas Liberty through Article 19 to 22. Article 21 is a central code of Part III. Part IV is the directives to the states while enforcing Part III.
In an era where, at least on the face of it, gender equality is gaining prominence in various fields. The concept of “female gaze” is gaining prominence in films, and women are becoming more vocal about their rights & experiences, it is a common impression that women are no longer inferior to men in terms of their rights, power and position in the society. But the crime statistics against women punch a huge hole in this bubble. The persisting power relations between men and women are often reflected in the abuse inflicted against women, not just their public lives but also in their private lives.
Domestic Violence" is undoubtedly a human rights issue, which was not properly taken care of in this country even though the Vienna Accord 1994 and the Beijing Declaration and Platform for Action (1995) had acknowledged that domestic violence was undoubtedly a human rights issue. UN Committee on Convention on Elimination of All Forms of Discrimination against Women in its general recommendations had also exhorted the member countries to take steps to protect women against violence of any kind, especially that occurring within the family, a phenomenon widely prevalent in India. Presently, when a woman is subjected to cruelty by husband or his relatives, it is an offence punishable Under Section 498A Indian Penal Code. The Civil Law, it was noticed, did not address this phenomenon in its entirety. Consequently, the Parliament, to provide more effective protection of rights of women guaranteed under the Constitution under Articles 14, 15 and 21. The DV Act has been enacted also to provide an effective protection of the rights of women guaranteed under the Constitution, who are victims of violence of any kind occurring within the family.
PROTECTION OF WOMEN FROM DOMESTIC VIOLENCE ACT
The Protection of women from domestic violence act (hereinafter DV act) is a compilation of 37 sections divided into 5 chapters whereas Chapter I is Preliminary covering Section 1 &2, Chapter II having title of domestic violence covering definition clauses, Chapter III is specific to Protection officer, its role & duties covering Section 4 to 11, Chapter IV is operative portion of the act covering Section 12 to 29 and lastly Chapter V is for miscellaneous covering Section 30 to 37.
Section 37 empower central government to frame rules and in confinement of same, Protection of Women from Domestic Violence rules, 2006 (DV Rules) has been framed. DV rules are compilation of 17 rules and 7 Forms, where Rule 3 to 8 is specific to protection officer and remaining rules covering situation of emergency orders, medical & shelter house. Rule 13 & 14 is specific to counseling.
Form II is a format for application to magistrate under Section 12 and Form IV is information on rights of aggrieved person.
Chapter IV is a heart and soul of the act which provides various reliefs to a woman who is or has been in a domestic relationship with any adult male person. Aggrieved person can file an application under Section 12 to concerned magistrate and can get the following reliefs;
Protection order under section 18
Residence order under section 19
Monetary reliefs under section 20
Temporary custody of child under section 21
Compensation & damages under section 22
Section 26 is a very special provision as it provides that these reliefs can be claimed in any legal proceedings in civil court, family court or criminal court by aggrieved person against respondent.
Section 2(a) defines aggrieved person as any woman who is or has been in a domestic relationship with the respondent and alleged to have been subjected to any act of domestic violence.
What is domestic relationship
Who is respondent
What is domestic violence
The definition of domestic relationship is very wide. It means persons who live or lived together in a shared household and are related in any of four ways- blood, marriage or relationship in nature of marriage, adoption and family members of a joint family. A reading of this definition makes it clear that domestic relationships involve persons belonging to both sexes and includes persons related by blood or marriage.
Section 2(q) defines respondent as any adult male person who is or has been in a domestic relationship and against whom aggrieved person sought relief in this act. Proviso to Section 2(q) provides that aggrieved woman can also file complaint against relatives of husband or male partner.
Section 3 of the Act defines domestic violence and it is clear that such violence is gender neutral. Section 3, therefore, in tune with the general object of the Act, seeks to outlaw domestic violence of any kind against a woman, and is gender neutral
Whether definition of respondent is only male specific?
If "Respondent" is to be read as only an adult male person, it is clear that women who evict or exclude the aggrieved person are not within its coverage, and if that is so, the object of the Act can very easily be defeated by an adult male person not standing in the forefront, but putting forward female persons who can therefore evict or exclude the aggrieved person from the shared household. This again is an important indicator that the object of the Act will not be sub-served by reading "adult male person" as "Respondent. This becomes even clearer from certain other provisions of the Act. Under Section 18(b), for example, when a protection order is given to the aggrieved person, the "Respondent" is prohibited from aiding or abetting the commission of acts of domestic violence. This again would not take within its ken females who may be aiding or abetting the commission of domestic violence, such as daughters-in-law and sisters-in-law, and would again stultify the reach of such protection orders. 21. When we come to Section 19 and residence orders that can be passed by the Magistrate, Section 19(1)(c) makes it clear that the Magistrate may pass a residence order, on being satisfied that domestic violence has taken place, and may restrain the Respondent or any of his relatives from entering any portion of the shared household in which the aggrieved person resides. This again is a pointer to the fact that a residence order will be toothless unless the relatives, which include female relatives of the Respondent, are also bound by it. And we have seen from the definition of "Respondent" that this can only be the case when a wife or a common law wife is an aggrieved person, and not if any other woman belonging to a family is an aggrieved person. Therefore, in the case of a wife or a common law wife complaining of domestic violence, the husband's relatives including mother-in-law and sister-in-law can be arrayed as Respondents and effective orders passed against them. But in the case of a mother-in-law or sister-in-law who is an aggrieved person, the Respondent can only be an "adult male person" and since his relatives are not within the main part of the definition of Respondent in Section 2(q), residence orders passed by the Magistrate Under Section 19(1)(c) against female relatives of such person would be unenforceable as they cannot be made parties to petitions under the Act.
No restrictive meaning has been given to the expression "relative", nor has the said expression been specifically defined in the Domestic Violence Act, 2005, to make it specific to males only. In such circumstances, it is clear that the legislature never intended to exclude female relatives of the husband or male partner from the ambit of a complaint that can be made under the provisions of the Domestic Violence Act, 2005.
Thus, while interpreting a statute the court may not only take into consideration the purpose for which the statute was enacted, but also the mischief it seeks to suppress. It is this mischief rule, first propounded in Heydon case which became the historical source of purposive interpretation. The court would also invoke the legal maxim construction of ut res magis valeat quam pereat in such cases i.e. where alternative constructions are possible the court must give effect to that which will be responsible for the smooth working of the system for which the statute has been enacted rather than one which will put a road block in its way. If the choice is between two interpretations, the narrower of which would fail to achieve the manifest purpose of the legislation should be avoided. We should avoid a construction which would reduce the legislation to futility and should accept the bolder construction based on the view that Parliament would legislate only for the purpose of bringing about an effective result. If this interpretation is not accepted, it would amount to giving a premium to the husband for defrauding the wife. Therefore, at least for the purpose of claiming maintenance Under Section 125 Code of Criminal Procedure, such a woman is to be treated as the legally wedded wife
It is true that the expression "female" has not been used in the proviso to Section 2(q) also, but, on the other hand, if the Legislature intended to exclude females from the ambit of the complaint, which can be filed by an aggrieved wife, females would have been specifically excluded, instead of it being provided in the proviso that a complaint could also be filed against a relative of the husband or the male partner. No restrictive meaning has been given to the expression "relative", nor has the said expression been specifically defined in the Domestic Violence Act, 2005, to make it specific to males only.
We, therefore declare that the words "adult male" in Section 2(q) of the 2005 Act will stand deleted since these words do not square with Article 14 of the Constitution of India. Consequently, the proviso to Section 2(q), being rendered otiose, also stands deleted.
Hence, the definition of respondent is gender neutral and proviso has become meaningless.
Whether woman who is or has been in live in relationship can claim relief under this act?
To answer this question, the definition of aggrieved person and domestic relationship need to read in harmony. The definition of aggrieved person means any woman who is or has been in a domestic relationship. The definition of domestic relationship has given reference to marriage or “relationship in nature of marriage”. Thus the question would be as whether live in relationship tantamount to relationship in nature of marriage?
The term “marriage” is not defined under Hindu marriage act but conditions of marriage are contained under Section 5 & 7 of the said act.
A married couple has to discharge legally various rights and obligations, unlike the case of persons having live-in relationship or, marriage-like relationship or de facto relationship. Married couples who choose to marry are fully cognizant of the legal obligation which arises by the operation of law on solemnization of the marriage and the rights and duties they owe to their children and the family as a whole, unlike the case of persons entering into live-in relationship.
Distinction between the relationship in the nature of marriage and marital relationship has to be noted first.
Relationship of marriage continues, notwithstanding the fact that there are differences of opinions, marital unrest etc., even if they are not sharing a shared household, being based on law. But live-in relationship is purely an arrangement between the parties unlike, a legal marriage. Once a party to a live-in-relationship determines that he/she does not wish to live in such a relationship, that relationship comes to an end. Further, in a relationship in the nature of marriage, the party asserting the existence of the relationship, at any stage or at any point of time, must positively prove the existence of the identifying characteristics of that relationship, since the legislature has used the expression "in the nature of".
The difference between living together and living together 'as a couple in a relationship in the nature of marriage or civil union'. The relationship between two people who live together, even though it is a sexual relationship, may, or may not, be a relationship in the nature of marriage or civil union. One consequence of relationships of the former kind becoming commonplace is that it may now be more difficult, rather than easier, to infer that they have the nature of marriage or civil union, at least where the care and upbringing of children are not involve.
Live-in relationship between two consenting adults of heterosexual sex does not amount to any offence even though it may be perceived as immoral. However, in order to provide a remedy in Civil Law for protection of women, from being victims of such relationship, and to prevent the occurrence of domestic violence in the society, first time in India, the DV Act has been enacted to cover the couple having relationship in the nature of marriage, persons related by consanguinity, marriages etc. We have little other legislation also where reliefs have been provided to woman placed in certain vulnerable situations
Section 125 Code of Criminal Procedure, of course, provides for maintenance of a destitute wife and Section 498A Indian Penal Code is related to mental cruelty inflicted on women by her husband and in-laws. Section 304B Indian Penal Code deals with the cases relating to dowry death. The Dowry Prohibition Act, 1961 was enacted to deal with the cases of dowry demands by the husband and family Members. The Hindu Adoptions and Maintenance Act, 1956 provides for grant of maintenance to a legally wedded Hindu wife, and also deals with rules for adoption. The Hindu Marriage Act, 1955 refers to the provisions dealing with solemnization of marriage also deals with the provisions for divorce. For the first time, through, the DV Act, the Parliament has recognized a "relationship in the nature of marriage" and not a live-in relationship simpliciter.
Thus, whether live in relationship would covered under “relationship in nature of marriage” would depend upon following factors
Duration of period of relationship
Pooling of resources and financial arrangements
Socialization in public
Intention and conduct of parties
Some countries in the world recognize common law marriages. A common law marriage, sometimes called de facto marriage, or informal marriage is recognized in some countries as a marriage though no legally recognized marriage ceremony is performed or civil marriage contract is entered into or the marriage registered in a civil registry. In our opinion a 'relationship in the nature of marriage' is akin to a common law marriage. Common law marriages require that although not being formally married:
(a) The couple must hold themselves out to society as being akin to spouses.
(b) They must be of legal age to marry.
(c) They must be otherwise qualified to enter into a legal marriage, including being unmarried.
(d) They must have voluntarily cohabited and held themselves out to the world as being akin to spouses for a significant period of time.
In our opinion a 'relationship in the nature of marriage' under the 2005 Act must also fulfill the above requirements, and in addition the parties must have lived together in a 'shared household' as defined in Section 2(s) of the Act. Merely spending weekends together or a one night stand would not make it a 'domestic relationship'. Parliament has used the expression 'relationship in the nature of marriage' and not 'live in relationship'. The Court in the grab of interpretation cannot change the language of the statute. However, Indian society is changing, and this change has been reflected and recognized by Parliament by enacting The Protection of Women from Domestic Violence Act, 2005.
Hence, per se live in relationship will not be called as relationship in nature of marriage and to claim relief under this act
Whether relief under this act is available where decree of judicial separation passed but stridhan is under retention of husband?
We are of the considered opinion that as long as the status of the aggrieved person remains and stridhan remains in the custody of the husband, the wife can always put forth her claim Under Section 12 of the 2005 Act. We are disposed to think so as the status between the parties is not severed because of the decree of dissolution of marriage. The concept of "continuing offence" gets attracted from the date of deprivation of stridhan, for neither the husband nor any other family members can have any right over the stridhan and they remain the custodians.
Whether Complaint under Section 12 of the act can be amended?
Provisions of Sub-section (2) of Section 28 of the DV Act gain significance. Whereas proceedings under certain Sections of the DV Act as specified in Sub-section (1) of Section 28 are to be governed by the Code, the Legislature at the same time incorporated the provisions like Sub-section (2) as well which empowers the Court to lay down its own procedure for disposal of the application Under Section 12 or Section 23(2) of the DV Act. This provision has been incorporated by the Legislature keeping a definite purpose in mind. Even in criminal cases governed by the Code, the Court is not powerless and may allow amendment in appropriate cases. One of the circumstances where such an amendment is to be allowed is to avoid the multiplicity of the proceedings. It is noticed that most of these reliefs are of civil nature. If the power to amend the complaint/application etc. is not read into the aforesaid provision, the very purpose which the Act attempts to sub-serve itself may be defeated in many cases.
Whether proceedings before small cause court are legal proceedings for purpose of section 26 of the act? If yes, whether aggrieved woman can seek relief under DV through counter-claim before same proceedings?
Section 26 of the Act, 2005 has to be interpreted in a manner to effectuate the very purpose and object of the Act. Unless the determination of claim by an aggrieved person seeking any order as contemplated by Act, 2005 is expressly barred from consideration by a civil court, this Court shall be loath to read in bar in consideration of any such claim in any legal proceeding before the civil court. When the proceeding initiated by Plaintiff in the Judge, Small Causes Court alleged termination of gratuitous license of the Appellant and prays for restraining the Appellant from using the suit flat and permit the Plaintiff to enter and use the flat, the right of residence as claimed by the Appellant is inter-connected with such determination and refusal of consideration of claim of the Appellant as raised in her counter claim shall be nothing but denying consideration of claim as contemplated by Section 26 of the Act, 2005 which shall lead to multiplicity of proceeding, which cannot be the object and purpose of Act, 2005.
Whether Petition under DV act maintainable where aggrieved woman subjected to domestic violence prior to commencement of this act?
We agree with the view expressed by the High Court that in looking into a complaint under Section 12 of the PWD Act, 2005, the conduct of the parties even prior to the coming into force of the PWD Act, could be taken into consideration while passing an order under Sections 18, 19 and 20 thereof. In our view, the Delhi High Court has also rightly held that even if a wife, who had shared a household in the past, but was no longer doing so when the Act came into force, would still be entitled to the protection of the PWD Act, 2005.
Any person who has reason to believe that an act of domestic violence has been, or is being, or is likely to be committed may give information about it to the Protection Officer having jurisdiction in the area either orally or in writing. In case the information is given to the Protection Officer under sub-rule (1) orally, he or she shall cause it to be reduced to in writing and shall ensure that the same is signed by the person giving such information and in case the informant is not in a position to furnish written information the Protection Officer shall satisfy and keep a record of the identity of the person giving such information.
Protection Officer shall prepare a domestic incident report in Form I and submit the same to the Magistrate and forward copies thereof to the police officer in charge of the police station within the local limits of jurisdiction of which the domestic violence alleged to have been committed has taken place and to the service providers in that area. Every application of the aggrieved person under section 12 shall be in Form II or as nearly as possible thereto.
The aggrieved person may seek the assistance of the Protection. Officer in preparing her application under sub-rule and forwarding the same to the concerned Magistrate. In case the aggrieved person is illiterate, the Protection Officer shall read over the application and explain to her the contents thereof. The affidavit to be filed under sub-section (2) of section 23 shall be filed in Form III.
For serving the notices under section 13 or any other provision of the Act, the provisions under Order V of the Civil Procedure Code, 1908 (5 of 1908) or the provisions under Chapter VI of the Code of Criminal Procedure, 1973 (2 of 1974). as far as practicable may be adopted.
An aggrieved person may report a breach of protection order or ati interim protection order to the Protection Officer and the Protection. Officer shall forward a copy of such complaint with a copy of the protection order of which a breach is alleged to have taken place to the concerned Magistrate for appropriate orders
breach of a protection order or an interim protection order shall immediately be I reported to the local police station having territorial jurisdiction and shall be dealt with as a cognizable offence as provided under sections) and 32.
Additional conditions to protect the aggrieved person and to ensure the presence of the accused before the court, which may include–
an order restraining the accused from threatening to commit or committing an act of domestic violence;
an order preventing the accused from harassing, telephoning or making any contact with the aggrieved person;
an order directing the accused to vacate and stay away from the residence of the aggrieved person or any place she is likely to visit;
an order prohibiting the possession or use of firearm or any other dangerous weapon;
an order prohibiting the consumption of alcohol or other drugs;
Any other order requires, C for protection, safety and adequate relief to the aggrieved person.
On a request being made by the aggrieved person, the Protection Officer or a service provider may make a request under section 6 to the person in charge of a shelter home in writing, clearly stating that the application is being made under section 6.
The aggrieved person or the Protection Officer or the service provider may make a request under section 7 to a person in charge of a medical facility in writing, clearly stating that the application is being made under section 7.
DATA & STATISTICS
According to the Ministry of Women and Child Development’s report titled “Tackling Violence against Women: A Study of State Intervention Measures”, violence against women is experienced by women of all ages and social classes, all races, religions and nationalities, across the world. 
In India, of all the violence against women, Domestic Violence is one the most common, prevalent and frequently occurring crimes. According to the UN Women’s global data base on violence against women, in India, about 288% of the ever-married women aged 15-49 years, experience intimate partner physical and/or sexual violence at least once in their lifetime.
According to the report of National Sample Survey Office of India, about 103272 cases of cruelty (u/s 498, IPC) were registered in 2018. A total of 150571 cases of cruelty were being investigated. However, 67% of the total cases being investigated were disposed of by the police. And the charge sheet was filed in 58954 cases.
Further, according to various news articles, the number of cases of domestic violence has increased in various states, during the lockdown. According to the West Bengal Women’s Commission, 70 cases of domestic violence have been reported to the commission since the imposition of the lockdown. Furthermore, in the month of July’2020 alone, of the total of 2913 cases of crimes against women, 663 cases of domestic violence were registered with the National Commission of Women. In the month of August’2020, of the total of 486 cases of crimes against women, 58 cases of domestic violence were registered within a span of 4 days.
While these numbers do show violence against women, they still fall short of explaining the bloated reality. According to the state-wise statistics of the National Family Health Survey- 4 (2015-2016), on an average 70-80% of women, who have ever experienced physical or sexual violence by anyone, have neither sought help nor told anyone about the violence. Further, according to the survey conducted by The Hindu, about 86% of the women who experienced domestic violence in 2020 never sought help, and 77% of the victims did not even mention the incident(s) to anyone. 
CONCLUSION & SUGGESTIONS
The Protection of woman from domestic violence act in a journey of 15 years proved to be one of most liberal and beneficial enactment in context of woman rights. However despite the powerful provisions at hand, its enforcement is still a matter of privilege for many aggrieved woman.
As one digs deeper into the ground realities, one realizes that that woman is still far from achieving the position and power that is enjoyed by men in the society. There may be multiple laws to protect women and enhance their position in the society, but the issue runs deeper than that. Starting from gender stereotypes to the lack of effective implementation of these laws, the issue has to be addressed taking into account the various facets of the problem. It cannot be solved in a linear manner.
In our country the enforcement of law is a bigger issue. Domestic violence is a major human rights issue and this act has brought the
Each state has appointed protection officers at district level and their details are widely available at open platform. Aggrieved woman need no lawyer to approach protection officer and every duty is cast on trained protection officer. Aggrieved woman can get custody of her child, residence order, and maintenance. This law is powerful and its enforcement is simplified and cost effective. However in a country like India where illiteracy and social stigma plays a major role in society, the better enforcement of this law would need more access through workshops, seminars, free aid and education.
ABOUT THE AUTHORS
Shubham Budhiraja is an Associate Company Secretary and final year law student from Faculty of law, University of Delhi. Surbhi Gupta is a second year law student from Faculty of law, University of Delhi.
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