Saturday, 29 January 2022

An analysis of Domestic violence act, 2005


BY: Bishrant Khatiwada, SLS, Pune, Email:

The Domestic Violence Act, as one of the first in this field, has dealt directly with the problem of domestic violence, taking into account all associated laws and attempting to eliminate the various ancillary issues that such legislations are prone to (such as impractical provisions). This legislation is well-suited to the Indian environment and social situation, and it reflects the Indian man's thinking.

The term domestic violence includes:

  1. Causing hurt, injury or danger to life, limb, health, safety or wellbeing in either mental form or ohysical form

  2. Causing harm, injury or danger to the woman with an intention to threaten her or any other person related to her to meet demand of dowry

  3. Physical abuse, which includes hurt of any kind or assault and also criminal intimidation or criminal force

  4. Sexual abuse: which refers to conducts of a secular nature such as forced secular intercourse. As established in points above, mental abuse such as forcing a person to watch pornography or any other obscene material forcibly or with threat or any other act of sexual nature related to abusing, humiliating and degrading or otherwise violate of one’s dignity

  5. Verbal and emotional abuse: the abuse such as accusations/aspersion on character of conduct. Insult if not bringing dowry or good clothes from her matrimonial home or even not having a male child. Forcing women not to attend school or make her dropout of any educational institutions and forcing someone not to take up job or resign from job with repeated threats to cause pain to her as well as her loved ones. And preventing a person not to marry of her choice.

  6. Economic abuse is a form of abuse when one intimate partner has control over the other partner's access to economic resources, which diminishes the victim's capacity to support themselves and forces them to depend on the perpetrator financially.

Only concerns connected to marriage and divorce were deemed a family law issue in cases of domestic abuse. Marriage and divorce are covered by the law, but what happens in the interim is not. This meant that the subject of domestic abuse against women could only be broached in the context of a divorce. Until 1984, when Section 498A was inserted to the Indian Penal Code, and his husband and family committed a crime against his wife. Criminal law was used to address these difficulties. However, because it was founded on fear of arrest rather than women's rights, this proved to be an ineffective solution.

Provisions of the act

The definitions of domestic violence are set out in Section 3 of the Act. "Domestic abuse" is defined as "any act, omission, or action or acts of the responder under the following circumstances:

  • harass, harm, injure, or threaten an accused person's health, life, limb, or well-being, whether psychologically or physically, including the causes of physical violence, verbal and emotional sexual abuse, and economic abuse; 

  • harass, harm, injure, or threaten the person being abused with the intent of coercing him or any person related to him or her to meet any illegitimate demand for dowry, or other valuable property or safety;

  •  the effects of any conduct referred to in

Section 4 imposes a moral obligation on members of the public to file a lawsuit on behalf of the victim if they are aware of an act that has already been committed or if there is a risk of committing domestic violence in the future. It also means that everyone has a responsibility to respond to abuse. 

"Anyone who has cause to think that an act of domestic violence has been, is, or is going to be committed may contact the" Protection Officer, according to Section 4(1) of the Protection of Women from Domestic Violence Act. This also implies that the source is not immune to civil or criminal culpability in good faith.

The provisions of Domestic violence act while read with provision of Ipc and Constitution we can see a wide scope towards a bright future for protection of women. The Act was passed with the basic rights provided by Articles 14, 15, and 21 in mind, according to the Statement of Objects and Reasons. Article 21 provides the right to life and liberty in a negative sense, declaring that it may not be taken away except by law, which must be fair, just, and reasonable as a consequence of court judgments. The right to life has been interpreted to encompass, among other things, the following rights (which are represented in the Act):

  1. The right to be free of violence: The Supreme Court declared in Francis Coralie Mullin v. Union Territory Delhi, Administrator that any conduct that damages, injures, or interferes with the use of any limb or capacity of a person, whether permanently or temporarily, falls within Article 21's prohibition. Physical abuse, which comprises domestic violence, is defined under the Act as a violation of this right (and is hence punishable under the Act). Acts or behaviour that cause bodily pain, injury, or risk to life, limb, or health, or affect the health or development of the injured person are defined as physical abuse. Aside from that, the Act defines domestic violence to encompass comparable acts of physical violence and certain acts of physical violence as defined by the Indian Penal Code.

  2. The right to dignity: In Ahmedabad Municipal Corporation v. Nawab Khan Gulab Khan, the Supreme Court emphasised that the right to life encompassed the right to live with dignity, citing a slew of precedents in support of this claim. The right to dignity would include the right not to be subjected to sexual practises that are degrading. It would also include the right to be unintentionally offended. Under the definitions of sexual abuse and emotional abuse, these two aspects of the right to life are mentioned. The idea of emotional abuse as a kind of domestic violence is a commendable component of the legislation. The acknowledgment of sexual abuse of a woman by a husband as a type of person violation is commendable, especially as sexual abuse is not recognised as an offence under the IPC.

  3. The right to shelter: In Chameli Singh v. State of Uttar Pradesh, it was determined that the right to life includes the right to shelter, differentiating the case from Gauri Shankar v. Union of India, which included a statutory eviction of a tenant. The Domestic Violence Act's Sections 6 and 17 reaffirm this privilege. The Protection Officer has a duty under S.6 to provide accommodation to the aggrieved party if the aggrieved person does not have a place to stay, whether the aggrieved party requests it or not. The right of the party to remain in the joint household is safeguarded by S.17. As a result of these laws, women can take use of the many safeguards available to them without fear of being evicted.

BUT, the act has provided with the provisions but due to lack of evidence or due to pressure of her future, the act hasn’t been applied wholly to its full extent. The culture has seen several incidents since marriage is always viewed as an emotional connection with no goal-setting. If a woman has 10 encounters, the first abusive one will be forgotten in favour of a subsequent excellent one, leaving the abused partner with weak decision-making skills. 

In a world where we favour prestige and name over justice, equity and good conscience such acts will not be completely applicable. There is no denying of it being effective but not 100%

Cases dealing with protection from husband and relatives, and maintenance in cases of domestic violence, are registered directly with the court, under the Protection of Women from Domestic Violence Act and are not recorded by the National Crime Records Bureau. This data on court cases has remained inaccessible after repeated attempts by women’s rights groups. We are less inclined to speak out about how our friend's boyfriend treats her if violence against women is not recognised or acknowledged in the public sphere. The rationalisation, trivialization, and discomfort of speaking out about domestic abuse will persist unless we address male aggression against women.

In Conclusion, Theory and practical aren’t the same always. We study certain laws, but in real life there are many factors affecting its application. Pride and ‘IJJAT” supress women’s voice. There are instances where the girl’s own parents stop her for raising voice against her husband cause of her pride and what others will think in the society. They are more inclined to save the marriage rather than getting justice. However, it is believed that it is too early to assess the legislation's use to its intended beneficiaries and society as a whole. It is necessary to determine if the legislature has assured the Act's practicality, as well as whether the executive has responsibility for its execution, since this will be the true scale for assessing the Act's effectiveness. 

Domestic violence is frequently addressed as a family matter, necessitating both police and court-ordered counselling. Both organisations have taken this stance, advising women to "settle" their disputes rather than pursue legal action. All Women Police Stations in Tamil Nadu did not quickly report offences in incidents of domestic abuse. Instead, they entered the instances into the Community Service Register and tried to work out a solution through informal means. 

In light of above mentioned things we can see that domestic violence act has been useful to some extent but due to social and societal as well as religious factors is bas failed to remove the same from the society.

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