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Monday, May 10, 2010

A Critical Appraisal of “The Protection of Women from Domestic Violence Act, 2005.” Part I

The Protection of Women from Domestic Violence Act, 2005 which gives protection to women from domestic violence is a step in right direction as a unique and different piece of legislation from other existing laws. By including the unmarried sisters, mothers, widows, etc. in the list of women facing domestic violence, the Act has ensured full proof protection to the harassed women and as such the Act is very significant because it is for the first time that the term ‘domestic violence’ has been widened in meaning and scope from the culture specific restriction of ‘dowry deaths’ and penal provisions to positive civil rights of protection and injunction.
The Act gives a very expansive definition to the term “domestic violence”, a term hitherto not even used in legal parlance in a bold break from prior legislations. The term ‘domestic violence’ is defined in a comprehensive way in S.3 of the Act, thereby comprising the following:
1. physical, mental, verbal, emotional, sexual and economic abuse,
2. harassment for dowry,
3. acts of threatening to abuse the victim or any other person related to her.
The Act thus deals with forms of abuse that were either not addressed earlier, or that were addressed in ways not as broad as done here. For instance, it includes in its ambit sexual abuse like marital rape which, though excluded under the IPC, can now be legally recognized as a form of abuse under the definition of sexual abuse in this Act. The definition also encompasses claims for compensation arising out of domestic violence and includes maintenance similar to that provided for under S.125 of the Code of Criminal Procedure (CrPC). Nevertheless, the claim for compensation is not limited to maintenance as allowed by that provision. It is noteworthy that the maintenance available under this section must be in correspondence with the lifestyle of the aggrieved party. Lastly, the Act identifies emotional abuse as a form of domestic violence, including insults on account of the victim’s not having any children or male children.
The enactment in question was passed by the Parliament with recourse to Article 253 of the Constitution. This provision confers on the Parliament the power to make laws in pursuance of international treaties, conventions, etc. The Domestic Violence Act was passed in furtherance of the recommendations of the United Nations Committee on the CEDAW to which India is a party, requires national law and policy to be directed towards removing discrimination against women in all matters relating to marriage and family relationships and hence fulfils the Constitution’s pledge to prohibit discrimination through the enactment of special provisions that protect women. In addition, it makes good India’s commitments under the international human rights regime and the Vienna Declaration and Programme of Action, 1993, to which India has time and again rededicated its commitment, calls upon states to specifically eliminate gender based violence and all forms of sexual exploitation and harassment, including those resulting from cultural prejudice. The Act encompasses all the provisions of the Specific Recommendations which form a part of General Recommendation no.19, 1992.
The Statement of Objects and Reasons declares that the Act was being passed keeping in view the fundamental rights guaranteed under Articles 14, 15 and 21. Article 21 confers the right to life and liberty in negative terms, stating that it may not be taken away except by procedure established by law, which is required, as a result of judicial decisions, to be fair, just and reasonable. The right to life has been held to include the following rights (which are reflected in the Act), among others:
1. The right to be free of violence: In Francis Coralie Mullin v. Union Territory Delhi, Administrator,
The Supreme Court stated, any act which damages or injures or interferes with the use of any limb or faculty of a person, either permanently or even temporarily, would be within the inhibition of Article 21. This right is incorporated in the Act through the definition of physical abuse, which constitutes domestic violence (and is hence punishable under the Act). Physical abuse is said to consist of acts or conduct of such nature that they cause bodily pain, harm, or danger to life, limb or health, or impair the health or development of the aggrieved person. Apart from this, the Act also includes similar acts of physical violence and certain acts of physical violence as envisaged in the Indian Penal Code within the definition of domestic violence. By adoption of such an expansive definition, the Act protects the right of women against violence.
2. The right to dignity: In Ahmedabad Municipal Corporation v. Nawab Khan Gulab Khan,
The Supreme Court emphasized the fact that the right to life included in its ambit the right to live with human dignity, basing its opinion on a host of cases that had been decided in favour of this proposition. The right to dignity would include the right against being subjected to humiliating sexual acts. It would also include the right against being insulted. These two facets of the right to life find mention under the definitions of sexual abuse and emotional abuse, respectively. A praiseworthy aspect of the legislation is the very conception of emotional abuse as a form of domestic violence. The recognition of sexual abuse of the wife by the husband as a form of violation to the person is creditable, especially as such sexual abuse is not recognized by the IPC as an offence. These acts would fall within the confines of domestic violence as envisaged by the Act, though the definition would not be limited to it.
3. The right to shelter: In Chameli Singh v. State of U.P,
It was held that the right to life would include the right to shelter, distinguishing the matter at hand from Gauri Shankar v. Union of India where the question had related to eviction of a tenant under a statute. Ss. 6 and 17 of the Domestic Violence Act reinforce this right. Under S.6, it is a duty of the Protection Officer to provide the aggrieved party accommodation where the party has no place of accommodation, on request by such party or otherwise. Under S.17, the party’s right to continue staying in the shared household is protected. These provisions thereby enable women to use the various protections given to them without any fear of being left homeless.
Analysis with regard Article 14 and 15 of the Constitution of India
Article 14 contains the equal protection clause. It affirms equality before the law and the equal protection of the laws. Article 14 prohibits class legislation, but permits classification for legislative purposes. A law does not become unconstitutional simply because it applies to one set of persons and not another. Where a law effects a classification and is challenged as being violative of this Article, the law may be declared valid if it satisfies the following two conditions:
1. The classification must be based on some intelligible differentia,
2. There must be a rational nexus between this differentia and the object sought to be achieved by the law.
As a result of the ruling in cases such as Royappa v. State of Tamil Nadu, any law that is arbitrary is considered violative of Article 14 as well. This provision is significant in putting a stop to arbitrariness in the exercise of State power and also in ensuring that no citizen is subjected to any discrimination. At the same time, it preserves the State’s power to legislate for a specific category of people.
Article 15 disallows discrimination on the grounds of religion, caste, sex, race, etc., but permits the State to make special provisions for certain classes of persons, including women and children.
The Domestic Violence Act promotes the rights of women guaranteed under Articles 14 and 15. Domestic violence is one among several factors that hinder women in their progress, and this Act seeks to protect them from this evil. It indeed effects a classification between women and men, protecting only women from domestic violence, but this classification is founded on an intelligible differential, namely, gender, and also has a rational nexus with the object of the Act. Further, the Act is far from arbitrary, in that it is a well-thought and necessary attempt to curtail domestic violence and eventually vanquish it. It is to be remembered that it is generally women who are the victims of domestic violence, and not men. At this stage, it is also essential to keep in mind Article 15(3) which empowers the State to make legislation's like this for the benefit of women, thus creating an exception in their favour against the operation of Article 15(1).
The passing of the Domestic Violence Act (DVA) is an important marker in the history of the womens' movement in India, which has confronted the problem of domestic violence for well over two decades. This enactment sets free the movement from the malaise that has long plagued it, of attributing all categories of violence suffered by women within their families to ‘dowry’ and widening the scope of the term ‘domestic violence’. It acknowledges that domestic violence is a widely prevalent and universal problem of power relationships, more than the culture specific phenomenon called ‘dowry death’. More importantly, it marks a departure from the penal provisions, which hinged on stringent punishments, to positive civil rights of protection and injunction.

[Inputs: Premjit Elangbam,DHR, LLM [Advocate]