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.
