Gender Biased and ill framed Domestic Violence Act

Protection of Women from Domestic Violence Act, 2005 came into force on 26 October, 2006 for providing protection to wife or female live-in partner from violence at the hands of the husband or male live-in partner or his relatives.

Under this act, the term "domestic relationship" includes relationship in the nature of marriage, which refers to those relationships where there is no marriage between the parties, in the sense of solemnization of a marriage under any law. The following categories of women are intended to be covered under 'relationship in the nature of marriage:

(a) Women, whose marriages are void or voidable under the law, as apart from the legal invalidity of the marriage, the relationship satisfies all other criterion.

(b) Live-in relationship - Women who are living in a shared household in a conjugal relationship without contracting marriage.

(c) Common law marriages- when a couple has been cohabiting for a number of years and have held themselves out to the world as being husband and wife.

It is beyond comprehension that under this act a woman in a live-in relationship has been provided the right to reside in the same household whether or not she has any right, title or

beneficial interest in the same. How can a woman in a live-in relationship has the same right as a married woman. It is a deliberate attempt to dilute the institution of marriage.

A woman can file a complaint against any adult male perpetrator [Section 2(q)] under this act. In cases where the woman is married, or lives in a relationship that is in the nature of marriage, she can also file a complaint against the male or female relatives of the husband / male partner who have reportedly perpetrated the violence. It is possible to have orders can be passed against the female relatives of the husband. However, relief of dispossession against a female relative cannot be granted according to the Section 19(1) which states that no order under Section 19(1) (b) directing the respondent to remove himself from the shared household can be passed against any person who is a woman. The aggrieved woman may obtain a protection order against the female relatives of the husband or the male partners.

Double standards

A mother-in-law cannot file an application against her daughter-in-law (Section 2 (q)). However in cases where a mother-in-law is facing violence at the hands of her daughter-in-law she can not ask for removal of the daughter-in-law from the shared household. This act is essentially anti-male in nature and can be applied against males only. It cannot be applied against any female. Even Supreme Court has mentioned that the definition of `shared household' in Section 2(s) of the Act is not very happily worded, and appears to be the result of clumsy drafting (D.Velusamy vs D.Patchaiammal, Supreme Court, 21 October, 2010)

This act provides a windfall of reliefs like protection order, residential order, monetary relief etc. to the female petitioner against a male petitioner. The proof will be tested on the balance of probabilities and proof beyond reasonable doubt is not required. Only the statement of the woman and circumstantial evidence is considered to arrive at a conclusion on the facts of he case. Even a man can evicted out of his own residence without having adequate right to defend himself.

Insults, ridicule, humiliation, name calling by a male against a female have been termed as verbal and emotional abuse. Even though females are well capable of doing the same against male, such actions against a male would not be termed as verbal and emotional abuse and there is no provision for relief for the males facing such abuse under this law.

If a male deprives a female from household necessities or payment of rental related to the shared household then it would amount to economic abuse. It does not consider that the man may be having a severe financial crisis. However, it does not consider it to be an economic abuse if a female takes away the money from a male without his permission. It is absolutely one-sided.

Even disposal of household effects in which the aggrieved person has an interest or is entitled to use by virtue of the domestic relationship has been considered as an economic abuse. So if a household item had been purchased by the husband and he was compelled to sell it for adverse financial condition, then it can be considered as a economic abuse. However, if the wife sells any household item even if it was not purchased by her, then the same would not be considered as any kind of abuse.

Under this act a wife can restrain a husband, who creates nuisance, from entering their home, irrespective of who owns the house (Mr.Ishpal Singh Kahai v/s. Mrs.Ramanjeet Kahai, Bombay High Court, 23rd March 2011). This act places a woman’s personal rights over proprietary interest. However if the wife creates nuisance or sleeps with another man then her husband would not be able to restrain her from entering their home. The rights of the wife are only upheld under this act disregarding then interests or well being of the husband.

A bare perusal of Section 3 of the Act clearly reveals that the law recognizes the right of women to the finances of the husband, as well as, economic right of having the Stridhan and the right to be maintained by the husband (Om Prakash Vs. State of Rajasthan & Anr. Rajasthan High Court, Jaipur Bench, 29 April, 2011). However, no such right of husband to the finances of the wife has been recognized by this act.

Unreasonable and unfair clauses

The residential orders that can be passed under this act can restrain the male from renting out or selling his own property. It can also evict the male from his own house. How can a man be derived of his legitimate rights over his own property? How fair is it to evict a man from his own home? If this kind of situation continues then men with property would not marry and go for one-night stands.

Also there is ample scope to misuse the provision for residential order under this act. Any woman can start live-in relationship with a man. Then she can file for a residential order under Domestic Violence Act and evict the man from his own house and secure her right to reside in the property owned by the man. Any man sharing a household with woman is at a risk of being dispossessed of his property under this act.

The monetary relief under this act is meant to be consistent with the standards of living of the female. But if a wife is not living with her husband and not performing any household duties for her husband then why should she be entitled to monetary relief to maintain same standard of living at the cost of hard earned money of her husband? She is only getting privileges with any kind of responsibilities.

Providing custody orders in favour of wife through this act without proper trial would devastate the husband emotionally. The child would also loose access to his father. This is the beginning of the breaking up of traditional Indian families.

The Act does not make any exception in favour of those who are physically challenged. The Act recognizes the right of a women to be maintained even from a physically challenged husband. Moreover, poverty is not a defence against the right of a woman (Om Prakash Vs. State of Rajasthan & Anr. Rajasthan High Court, Jaipur Bench, 29 April, 2011).

Provision for conviction without fair trial

Under Section 32 of this act for an alleged violation of Protection Order the offence is cognizable and non bailable. Under the sole testimony of a female the court may conclude that the offence has taken place and can sentence the man for imprisonment or fine or both. No other proof is required. If the female says that a violation of Protection Order has taken place, then the court would consider that a violation of Protection Order has taken place. This means the man might not get a chance to defend himself in the Court of Law. This is absolutely a draconian provision under this act. What would happen if the female lies in front of the court? There is no provision to cross examine her statement. There must be adequate checks and balances within every act.