“Legal Framework against Domestic Violence: Analysis of Protection of Women from Domestic Violence Act”

“Legal Framework against Domestic Violence: Analysis of Protection of Women from Domestic Violence Act”

By Arsha Rana, Faculty of Law, Jamia Millia Islamia University, New Delhi

Abstract:-

Can you think of a society in which women are domestically abused but society normalises it? Yeah, of course, because women are degraded and abused rather than respected in societies normally. This domestic violence poses a grave problem in society impacting women and children worldwide. In this article, we will be exploring the legal framework regulating this serious threat and various provisions of the Protection of women from Domestic Violence Act, 2005 along with its various nuances and challenges in its implementation. This article will also be addressing definition of domestic violence, various forms of abuses, important section of this legislation along with many judicial pronouncements interpreting various vague concept given under act. This article will also be providing the legal steps available on a violation of women’s rights as well as recourse available.

Keywords:- Domestic violence, aggrieved person, respondent, perpetrator, risk factor, protective factors etc.

Introduction:-

When we think of domestic violence and abuse, what comes to our mind is something related to domestic relations disputes etc. Basically, domestic violence is the violence that happens in domestic settings which may be between spouses or partner or other members, that’s why, sometimes it is also known as domestic abuse or family violence. It can happen to anyone; it doesn’t discriminate. Domestic violence is agonised by all age ranges, ethnic backgrounds and economic levels. Even, men also suffer from it sometimes. But, worldwide victims of domestic violence are overwhelmingly women. The World Health Organization (WHO) estimates that one in three of all women are subject to domestic violence at some point in their life[1]. A common pattern of domestic abuse is used by perpetrators that first they alternate between violent, abusive and apologetic behaviour along with they make promises to change themselves and that’s why many victims continue to live in such relationships.

Factors contributing to the increase in violence:-

Although, domestic violence is prevalent in patriarchy society mostly where women are degraded rather respected. But, there are many factors which may further increase or decrease the extent of domestic abuse and violence. These are as follows:-

1. Risk factors

2. Protective factors

Risk factors are those factors which have very chances of increasing domestic violence while protective factors are those factors which are considered preventive factors for violence sometimes because they may cause decrease in same. Individual risk factors include low income, low education or income, delinquent or aggressive behavior as a youth, heavy alcohol and drug use, depression and suicide attempts due to economic stress etc.[2]

Protective factors are those factors which cause reduction in domestic abuse and includes factors such as strong social support and strong, stable & positive relationships with others. Mostly community protective factors are coordination of resources and services, access to safe and stable housing along with better medical and health services.

Legal Framework against Domestic Violence:- Protection of Women from Domestic Violence Act, 2005(PWDVA,2005)

Although, we have many international legal framework covering many types of violence including domestic abuse but there was a need for more effective and speedy legal provision. Hence, Domestic violence act was enacted to provide the speedy remedy to women suffering from violence and abuse.

Aim and objective of Act:-

This act was enacted to provide for an effective, time efficient, civil law remedy by considering the right of women to reside in her matrimonial home and right to equality (Article 14) and prohibition of discrimination on ground of religion, race, caste, sex, and place of birth (Article 15) and right to life and liberty (Article 21) ensured by the Indian Constitution. It aims to prevent and reduce domestic violence of every form by providing security and welfare to women and children. This act provides protection of rights enshrined under constitution and safety from types of oppressions such as physical, emotional, psychological and sexual abuse etc. this act guarantees the assignment of services required to victims along with access to legal recourse by providing remedies like court order, financial aid etc.

Some Important features of act:-

The protection of women from domestic violence act (PWDVA, 2005) is comprehensive act which provides protection to women along with children having significant impact towards reduction in domestic violence and abuse in our society. There are following definitions given under this act as follows:-

1. Definition of Domestic violence:-

As above mentioned, violence which takes place in familial or domestic environment or in a domestic relationship is known as domestic violence or abuse. As per section 3 of PWDVA, 2005, domestic violence is:-

“Any act, omission, or commission by the respondent constitutes domestic violence if it:

(a) Harms or injures or endangers the health, safety, life, limb, or well-being, whether mental or physical, of the aggrieved person, including causing physical abuse, sexual abuse, verbal and emotional abuse, and economic abuse; or

(b) Harasses, harms, injures, or endangers the aggrieved person to coerce her or any other person related to her to meet any unlawful demand for dowry or other property or valuable security; or

(c) Threatens the aggrieved person or any person related to her by any conduct mentioned in clause (a) or (b); or

(d) Otherwise injures or causes harm, whether physical or mental, to the aggrieved person”[3].

2. Definition of an aggrieved:-

Basically, aggrieved person is the person particularly a woman who suffer from the abuse or violence perpetrated by respondent or defendant. As per section 2(a) of act:-

“Aggrieved person” means any woman who is, or has been, in a domestic relationship with the respondent and who alleges to have been subjected to any act of domestic violence by the respondent.[4]

3. Definition of respondent:-

Act says that respondent is a person, particularly a man who does any act of violence against a women in a domestic relationship. As per section 2(q) of act:-

“Any adult male person who is, or has been, in a domestic relationship with the aggrieved person and against whom the aggrieved person has sought any relief under this Act:

Provided that an aggrieved wife or female living in a relationship in the nature of a marriage may also file a complaint against a relative of the husband or the male partner”

4. Types of abuses:-

This act mentions different types of abuses and violence which are perpetrated by respondent to their partners or spouses. There are various types of abuse listed under the Domestic Violence Act (Section 3, Explanation 1):-

(a) Physical Abuse:-

The physical abuse includes any physical violence, assault, battery, criminal intimidation or causing bodily harm etc.

(b) Verbal and emotional abuse:-

This kind of abuse includes humiliation, insult, and verbal intimidation and some other form of verbal misconduct.

(c) Financial manipulation and abuse:-

Economic abuse or financial abuse include the deprivation of all economic resources which are essential for a women and she is entitled under any law or custom. It may include prohibition to continued resources or alienation of assets.

(d) Sexual abuse:- Women are sexually abused . They are forcibly exposed to certain acts like prostitution and sometimes sold out as keep of rich people so as to punish them through patriarchal norms. Women are being victims of sexual assaults like marital rape, or any kind of abuse of sexual nature humiliating and degrading their dignity.

Remedies available under Act :-

This act is a major cornerstone for safety of women in society. It provides various speedy remedies for the protection of women from domestic violence and other types of abuses. These are given in form of orders in the act which are as follows:-

Section 18:- Act grants the authority to the courts to issue orders for the protection of women.

Section 19:- Order by court to provide a shelter or safe place for women suffering from domestic violence.

Section 20:- This section contains the provision for recovery of expenses in form of monetary relief.

Section 21:- Whenever required, court can order for custody of children for their safety and well-being.

Section 22:- It includes the provision for compensation for the damages caused to a women[5].

Court’s significant Judgements:-

While dealing with the important question regarding the constitutional validity of Section 2(q) of the Protection of Women from Domestic Violence Act, 2005, which provides that the word "respondent" shall mean only an adult male. But this definition is not exhaustive as interpreted by Courts.

In case of Ajay Kumar v. Lata @ Sharuti[6] (2019), the Supreme Court held that brother-in-law and aggrieved women are a joint family and can be considered as respondent.

In case of V.D. Bhanot v. Savita Bhanot[7] (2012), the Supreme Court held that this act has retrospective effect of Domestic Violence Act which means that past conduct of the parties may also be relevant for making orders.

In case of S.R. Batra v. Smt. Tarun Batra[8], Court held that shared household means only a house belonging to the husband also held that property in sole possession of mother can’t be called a “joint household” as defined in section 2(s) of PWDVA,2005.

In K. V. Rajendran vs. State (2007) The Delhi High Court stated that domestic violence includes physical, mental, verbal, or economic abuse. The court emphasized that domestic violence can take many forms, including "actual or threatened harm, whether physical, sexual, verbal, emotional, or psychological."

Challenges in implementation of Act :-

This act has been very effective since it has been enacted in resolving the disputes between partners in a familial relationships. But it faces some challenges which may render this act ineffective and mere namesake. It may include challenges such as lack of awareness and systematic lapses. These are the following:-

1. Lack of Awareness:-

Even now, women are not fully aware of their rights and remedies in violation of their rights especially in rural areas which are provided under PWDVA, 2005. Due to lack of awareness, they continue to bear the violence and abuse and they think that its far thing to get access of courts even if they are told or made aware about their rights.

2. Social Stigma and cultural barriers:-

Many women don’t report their problems of domestic violence and abuse due to the fear of society. Sometimes, women might get caught by the cultural norms of society and family which may render women suffer from such violence. Also, it leads to the normalisation of domestic abuse and violence in society.

3. Challenges in defining the domestic violence:-

This act is criticized sometimes for its ambiguity in the definitions given under act. For example, insults are also included in domestic violence but have not been clearly defined that what constitute the insult. Such vagueness and opacity in concept may lead to the misuse by power lobbies.

Conclusion:-

“Domestic abuse will never end until we make it socially unacceptable.”

~ Mark Groves, National Centre for Domestic Violence

Basically, our society needs more stringent and streamlined laws which can regulate the societal problem. As we dived into the depth of PWDV Act, 2005 along with many other important definition of act which gives us insights of Act roughly. But, the main loophole is the vagueness and ambiguity in legal concepts which makes this act prone to misuse. What we need today is the precise concepts which may not be subjected to misuse. This problem can be resolved by judiciary through its clear interpretations and judicial pronouncement. Another problem which is lack of awareness among women regarding their rights but campaigns and workshops can be effective tools of awareness. Another way to resolve the problem is the easy accessibility to courts and legal institutions as people especially rural ones avoid approaching the same.

This Act though being a sword for the protection of women failed to be a shield for women to protect them against any false complaints. We need a robust mechanism which can be proved as an effective means of reduction and removal of domestic violence.