Domestic Violence Act, 2005.

 Domestic Violence

Act, 2005.

When it comes to domestic violence, the Protection of Women from Domestic Violence Act (also known as the Domestic Violence Act) is a commendable piece of law that was enacted in 2005 to address the issue. On the surface, the Act appears to go a long way toward ensuring the protection of women in the home. It represents the first significant step toward eliminating the dubious public/private divide that has been upheld in the law for many years and has been challenged by feminists on a number of occasions. In the past, women who were victims of domestic violence may file a complaint with the Indian Penal Code (IPC) and have their cases heard by the courts. However, because of the types of domestic violence covered by this Act, as well as the victims recognised by it, it has a broader scope than the Indian Penal Code. It is worth noting that the International Criminal Court (IPC) never used the phrase "domestic violence" to refer to this unpleasant practise. It is worth noting that the IPC only addresses one type of offences that is identical to this one: cruelty to married women. No matter what gender the victim was, all other incidences of domestic violence within the home had to be dealt with in accordance with the criminal laws governing the acts of violence in question under the Indian Penal Code. When the victims were youngsters or women who were reliant on the perpetrator, this provided a particular dilemma for the authorities. In fact, even if the victim was the assailant's wife and was able to file a complaint with the courts under Section 498A of the Indian Penal Code, she would almost certainly be forced to leave her matrimonial home in order to protect her safety, or else suffer more violence as reprisal. There was nothing in place to allow her to continue to live in her matrimonial house while also speaking out against the violence that had been done against her and her children. A combination of this and numerous other issues experienced by women in the home spurred the passage of this legislation. This essay focuses on the constitutional implications of this forward-thinking legislative proposal.

It is an important step forward from previous legislation in that it includes an expansive definition of the phrase "domestic violence," a term that had never before been used in legal context. Physical, mental, verbal, emotional, sexual, and economic abuse, as well as dowry harassment and acts of threatening to assault the victim or any other person related to her, are all included in the definition of domestic violence in Section 3 of the Act.

An essential amendment to the law assures that an unhappy woman who seeks redress through the legal system will not be harassed as a result of doing so. As a result, if a husband is accused of any of the aforementioned forms of violence, he is prohibited from prohibiting or restricting the wife's continued access to resources or facilities to which she is entitled by virtue of the domestic relationship, including access to the shared household, while the case is pending. A husband cannot take away her jewellery or money or force her to leave the house when they are in the midst of a disagreement. A woman who has been the victim of domestic violence will have the right to seek help from the police, shelter homes, and medical facilities, among other resources. She also has the option of filing a separate complaint under Section 498A of the Indian Penal Code at the same time as the complaint against him.

This piece of legislation, in my opinion, has been overdue for quite some time. It is a comprehensive piece of legislation that tackles all matters pertaining to women. This is the first time that a law has been passed that specifically addresses women's issues in such depth. In addition to recognising women who are in a live-in relationship, the Act also extends protection to other women in the household, such as sisters and mothers. As a result, the Act includes relationships of consanguinity, marriage, or through relationships in the nature of marriage, adoption, or joint family, indicating that 'domestic relationships' are not restricted to the marital context. As a matter of fact, the Act has given a new dimension to the term "abuse," because, unlike the primitive notion, "abuse" comprises actual abuse or the threat of abuse in any form, including physical, verbal, economic and dowry-related harassment, and so, under the new law;

Women who are or have been in a relationship in which both parties have lived together in a common household and are related by marriage or adoption will be covered by the law. In addition, the Act prohibits interfering with a wife's ability to get employment or compelling her to quit her job without her consent. One of the most significant provisions of the Act is that it grants a woman the right to reside in the married and shared household, regardless of whether or not she holds any legal or equitable rights in the family. All crimes under the Domestic Abuse Act are non-bailable, which means that husbands or live-in partners who are found guilty of domestic violence can be sentenced to a year in prison and fined Rs 20,000. Additionally, the Act covers sexual violence such as forcing his wife or mate to look at pornography or any other obscene photographs or information, as well as child sexual abuse. Physical violence such as beating, slapping, striking, kicking, and shoving are also covered by the Act. The new law also addresses the issue of sexual abuse of youngsters as well as the practise of pressuring females to marry against their will. This demonstrates unequivocally that the new Act was drafted with the present Indian relationship culture and the anomalies in the prior Domestic Violence Laws in mind when it was written.

Physical Violence is also defined extremely broadly under the Act, as follows: any type of bodily harm or injury, including sexual assault. There is a threat of physical injury, Beating, slapping, and hitting are all acceptable. As a result, physical violence is defined as any act or conduct that is of a nature that causes bodily pain, harm, or danger to life, limb, or health, or an act that impairs the health or development of the person who has been harmed, and includes assault, criminal intimidation, and criminal force, among other things. Violence against women, on the other hand, is not usually physical. For the first time, the definition of domestic violence has been broadened to include sexual, verbal, and economic aggression. Sexual violence shall be defined as follows under the law: forced sexual encounters, sexual harassment, and sexual assault. To force a woman to view pornography or any obscene images, or to engage in any conduct of a sexual nature with the intent of abusing, humiliating, or degrading a woman's integrity is prohibited.

Men who use derogatory language or verbal abuse against women will face harsher penalties under the new rule. Despite the fact that verbal violence is typically seen as insignificant, observers believe it can have a negative impact on a woman's self-esteem. The Act defines verbal violence as follows: name calling, any type of charge levelled against a woman's character or conduct, insults for failing to bring dowry, preventing a woman from marrying the person of her choice, and threatening a woman with physical violence. Any type of threat or insult for failing to have a male kid is prohibited.

Perspective from a constitutional standpoint

Using the provisions of Article 253 of the Constitution, the Parliament passed the legislation in question. This clause grants the Parliament the authority to enact legislation in accordance with international treaties, conventions, and other agreements. The Domestic Violence Act was passed in response to the recommendations of the United Nations Committee on the Elimination of Discrimination Against Women (CEDAW). It includes all of the provisions of the Specific Recommendations that are a part of General Recommendation No.19, which was issued on December 19, 1992.

The right to be free of violence includes the following rights:

In Francis Coralie Mullin v. Union Territory Delhi, Administrator, and the Supreme Court stated that any act that damages or injures or interferes with the use of any limb or faculty of a person, either permanently or even temporarily, would be considered an act prohibited by Article 21 of the United Nations Convention on the Rights of the Child.

The definition of physical abuse, which includes domestic violence, is integrated into the Act, ensuring that this right is protected (and is hence punishable under the Act). A physical abuser is defined as someone who engages in acts or conduct of a sort that results in bodily pain, bodily harm or threat to life, limb, or health, as well as impairing the health or development of the victim. Aside from that, the definition of domestic violence includes acts of physical violence that are similar to those found in the Indian Penal Code as well as specific acts of physical violence that are found in the Indian Penal Code. The establishment of such a broad definition ensures that women's rights are protected against assault.

Second, in Ahmedabad Municipal Corporation v. Nawab Khan Gulab Khan, the Supreme Court emphasised that the right to life included the right to live with human dignity, citing a slew of cases that had previously been decided in favour of this proposition as justification for its conclusion in this case. The right to dignity would include the right not to be subjected to humiliating sexual activities as a condition of employment. It would also include the right not to be insulted or ridiculed. Sexual abuse and emotional abuse are two aspects of the right to life that are mentioned in the definitions of sexual abuse and emotional abuse, respectively. The fact that emotional abuse is considered a type of domestic violence is a commendable component of the legislation. Recognition of sexual abuse of the wife by the husband as a type of violation to the person is commendable, especially in light of the fact that such sexual abuse is not recognised as a criminal offence in accordance with the Indian Penal Code. These acts would come under the scope of domestic violence as defined by the Act, albeit the definition would not be confined to this type of abuse.

Lastly, the right to shelter was upheld in Chameli Singh v. State of U.P., which distinguished the case at hand from Gauri Shankar v. Union of India, in which the question had been whether a tenant could be evicted under state statute. Sections 6 and 17 of the Domestic Violence Act provide further protection for this right. According to Section 6, the Protection Officer has a responsibility to provide the aggrieved party with accommodation if the party does not have a place to stay on its own, whether at the request of the aggrieved party or otherwise. In accordance with S.17, a party's right to continue to reside in the shared household is safeguarded. Women will be able to take advantage of the many safeguards available to them as a result of these laws without having to worry about being evicted.

The Equal Protection Clause is found in Article 14 of the Constitution. It affirms that all people are equal before the law and that all laws are equally protective of all people. Article 14 forbids class legislation, however it does allow for classification for the purposes of legislative action. A legislation does not become unconstitutional just because it applies to one group of people and not another does not automatically make it so. The validity of a law that creates a classification and is challenged on the grounds that it violates this Article is determined by whether the law meets the following two conditions:

1. The classification system must be based on discernible distinctions.

2. There must be a logical connection between this differentia and the goal that the law is attempting to achieve through its application. The judgement in Royappa v. State of Tamil Nadu has established that any law that is arbitrary constitutes a violation of Article 14 as well as other provisions of the Constitution. Putting an end to arbitrariness in the exercise of state power, as well as ensuring that no citizen is subjected to any form of discrimination, is a tremendous achievement. As well, it protects a specific type of persons from legislation by the state.

Religion, caste, sexual orientation, race, and other factors are prohibited under Article 15, but the state may make special arrangements for specific groups of people, such as women and children, under certain conditions.

In the case of Anil Kumar Mhasi v. Union of India (1994 5 SCC 704). It was argued in this case that the additional grounds for divorce granted to a woman under the Indian Divorce Act were discriminatory towards men and hence should be struck down. The challenge was rejected, with the court ruling that women did in fact need special protection. One of the most notable aspects of this decision is that the Supreme Court did examine the constitutionality of several portions of the Indian Divorce Act (a personal legislation for Christians) in light of fundamental rights, but found the case untenable on the merits. The Supreme Court's approach is manifestly incorrect, and it runs directly against to the provisions of the Constitution. Contrary to this viewpoint, the Supreme Court of the United States has examined portions of personal laws in the following decisions, applying the standard of fundamental rights as a yardstick.

Madhu Kishwar vs. the State of Bihar is a civil lawsuit (1996 5 SCC 125). Certain aspects of the Chotanagpur Tenancy Act, 1908, have been challenged on the grounds that they are discriminatory against women. As a result, while the Court in this case declined in this case to declare tribal customs to be in violation of fundamental rights on a mass scale, it left the door open for such a challenge by holding that "...under the circumstances it is not desirable to declare tribal customs to be in violation of Articles 14, 15 and 21 of the Constitution and each case must be examined when the entire record is brought before the court." Accordingly, the Court examined the law's constitutionality and read down its provisions in order to ensure that they were consistent with the right of women to earn a living, which is protected under Article 21 of the Constitution.

Failure of the Act: The Act has the potential to play a pivotal role in the protection of women's rights in the home and the prevention of domestic violence against them. As a starting point, recognising domestic abuse as a socially unacceptable practise in situations where it has become yet another social practise is vital and, in fact, laudable in a patriarchal culture. Following the recognition of women's rights and the violation of these rights, the next step is to provide innovative and effective remedies to ensure that these rights are enforced in the future. The way the Act has been conceptualised thus far is commendable.

One aspect of the Act, however, that the authors believe is flawed is the fact that it ignores male youngsters in its provisions. The writers believe that the Act does not provide protection to male youngsters, despite the fact that there have been some interpretations to the contrary. In the first instance, an aggrieved person, as defined by the Act, is a woman who is currently or has previously been involved in a domestic relationship with the defendant. The definition of domestic violence, which includes anyone under the age of eighteen, refers at all stages to an aggrieved person, not a child; the only relevant section in which a child is mentioned is S.18(c), which states that a Magistrate may issue a protection order prohibiting the respondent from entering the school of the aggrieved person if that person is a child. As a result of the writers' analysis, they believe that the Act does not apply to male children in its current form.

In certain ways, it could be argued that the Act was passed in order to meet the demands of women rather than boys. For one thing, even the name of the Act implies that it has been enacted in order to defend the rights of females. But it should be remembered that domestic violence, albeit primarily experienced by women, whether they are wives, mothers, sisters or daughters at times can also be directed against male children, as well as women. The argument that male children should not be provided with easily accessible relief from domestic violence because of their gender appears to be a weak one to support this position. Even if other forms of violence could be adequately addressed by the IPC (which does not appear to be the case), it is a truth that the sexual abuse of male children cannot be satisfactorily addressed by it in any appropriate manner. The Sakshi case and the accompanying 172nd Law Commission report, where it was urged, among other things, that the offence of rape as addressed in the Indian Penal Code (IPC) be defined in gender-neutral terms, so that the protection may be extended to male minors, should be cited. This was necessary in light of the increasing number of cases of sexual abuse of youngsters, both male and female, that have been reported. Once it is acknowledged that male children are harmed just as much as female children by sexual abuse, it must be acknowledged that they must be safeguarded from such abuse in the private world as well as the public sphere. On the surface, it appears that there is no compelling reason why male children should be denied protection from domestic abuse in their homes.