Domestic Violence Law – A Recipe For Disaster?
By R.K. Gauba*
"………….. Men have to start treating women as equals, I would be very happy if a man has to think twice before opening his mouth. No woman is public property,"
Renuka Chowdhary**
Prologue
Every civil society strives to create peace & harmony within it. But then, this is dependent on a number of factors that involve inter-relationship between individual members and the units that collectively constitute the society. One of the basic units of a society of human beings is called 'family' by sociologists and works in the matters of internal discipline & interplay between different members on certain unwritten rules, which are accepted and followed, in the larger interest and welfare of the group which has decided to live together under one roof. What generally binds these individual members together is consanguinity or marital relationship.
A thinker once beautifully defined "Home" as the place where "one goes to and everything is forgiven, everything is accepted". George Moore underlined the importance of home by referring to the predicament of the man who "travels the world to search for what he needs – and returns home to find it".
The institution of marriage (that holds together the roots of the family system) and the home (on which the civilized human society so much depends) are now coming increasingly under undue strain and stress. The (by and large) prevalent tradition of patriarchal systems is giving way to more egalitarian societal trends where men and women are equal partners. Washington Irving to an extent betrayed male chauvinism by saying that "men are always doomed to be duped — they are always wooing Goddesses and marrying mere mortals". But perhaps Michael de Montaigue showed the mirror to both genders by referring to a "happy marriage" as the one that exists "betwixt a blind wife and a deaf husband".
It is the morality or the ethics behind the concept of family & marriage which sets the human race apart from animal kingdom. Hindus view matrimony as a sacrament while Muslim or even Christian personal laws treat marriage vows as contractual relationship. Be that as it may, there exist certain universal principles that transcend the barriers of different religions or faiths. When two persons decide to marry each other and live together to lead life as, and raise, a family, each of them takes upon oneself the sacred obligation to be faithful to the other in good times or bad times and work together in love, peace & harmony for their mutual welfare and progress ("till death do us part"). It is a sacred endeavour, the success of which depends totally on the sincerity & commitment with which they conduct themselves together towards the world at large or towards each other. Some may believe that marriages are made in heaven. But the reality is that the possibility of a particular alliance bringing diametrically opposite personalities together is as strong as the probability that the partners in a particular marital relationship may be fully & truly compatible to each other.
Keeping this in mind and the general interest of the community in view, every personal law, or for that matter municipal laws of every modern State, treat marriage as an institution connected not merely by an entry point but also an exit door. In present day world, divorce is no longer a matter of stigma. The status of being a divorcee only reflects that the experiment of marriage indulged in by the individual had failed, not necessarily on account of reasons or faults attributable to him or her.
Indian society is not untouched by the developments in the rest of the humanity. The modern State creates and enforces laws to discipline the conduct of its members. India using this tool, after independence, chose to introduce a number of reforms essentially as measures to protect the life, limb & property of women vis-à-vis men. The original most effort on this front came in the form of Hindu Code in 1956 when a set of laws including Hindu Marriage Act, Hindu Succession Act, and Hindu Guardianship & Wards Act were enacted and enforced, albeit in the face of stiff opposition from quarters that had vested interest in perpetuating a society controlled by men. The marriage laws have undergone tremendous transformation over the years keeping in view, to a large extent, the vulnerable status of women as the weaker sex. Notwithstanding legal reforms introduced from time to time, the peace & harmony in domestic life in our society continue even in the present to be plagued and disturbed by certain social evils like child marriage, dowry demand, physical or emotional abuse of women and economic exploitation. Rather than being curbed with spread of literacy & general improvement of economic conditions, there has been a disturbing trend of spiraling increase in the rate of such incidents.
During the span of five decades between these two stages in the legal history of India, introduction of statutes like Child Marriage Restraint Act, Dowry Prohibition Act, and new offences including "Dowry death" (Section 304 B Indian Penal Code or "IPC") or "Cruelty" (Section 498-A IPC) can be counted as some efforts at social reform in the realm of criminal jurisprudence. The latest legislative effort, seemingly in the same direction, has come in the form of the "Protection of Women from Domestic Violence Act, 2005" (hereinafter referred to as "the Domestic Violence Act"), brought in force with effect from 26-10-2006. Unlike the Hindu Code, the domestic violence law, though also described as reform concerning civil rights & obligations, is part of the criminal justice regime that enjoys secular credentials in the sense it applies to every Indian alike, irrespective of the religion or faith to which he or she may belong. This law, as declared by the Preamble, is an Act meant to provide "more effective protection of the rights of women guaranteed under the Constitution who are victims of violence of any kind occuring within the family".
The very nomenclature indicates that the Domestic Violence Act is not restricted to violence perpetrated against a woman by her husband or in-laws. It includes under its protective umbrella every woman living in a domestic relationship as member of a family with the person indulging in violence who in this case must invariably be of the male gender. For the sake of convenience, the last-mentioned person would be referred to hereinafter as the "respondent". The law protects women who are victims of violence occuring within the family and who are classified & defined as the "aggrieved person" in Section 2(a), hereinafter referred to for sake of clarity as the "aggrieved woman". The expression "domestic relationship", sine qua-non for a woman to qualify as the aggrieved person, has been defined by Section 2(f) in very wide terms so as to include not only those living together under the same roof on account of the marital relation (e.g. a wife living with husband and his relatives) but also persons related by consanguinity (that is to say a sister living with her brothers, a woman living in a family with other male relations of her husband including his father, brother etc.), as indeed, and what has been perceived as radical in certain quarters, a relationship between two persons who are living together as a family in a shared household even though they are not connected to each other by blood or marital relation. To put it simply and adopting the modern day lingo, women involved in "live-in relationship" or bigamy or adulterous connection are also covered as beneficiaries.
It must be made clear here that one is not focusing on the criticism of the Domestic Violence Act on the ground that it provides statutory recognition and thereby encouragement to extra-marital relationships or relations between persons of opposite sex outside of, or without, marriage. The purpose of this paper, on the other hand, is to examine if this law has strengthened the cause of women's right to be treated as equals to men, in particular, in the matters of right to protection against violence. The appraisal of the new law has been found necessary particularly in the face of oft-heard criticism of the Indian State that it has been "too willing to pass new criminal laws to address these multiple forms of violence against women" questioning the wisdom behind such tendency . A view finds abhorrent the concentration of criminal law power in the State in the name of protecting women since some of the skepticism on this account is heightened by the fact that some of the laws "which purport to protect women from violence actually penalize the woman" .
In the views of the author of this paper, the Domestic Violence Act promulgated by the State in India with much fanfare and the avowed purpose of protecting the women is largely ill-advised as it is structured to add to their miseries rather than providing succour.
It must be immediately added here that one be not misunderstood to mean that "domestic violence" of the kind envisaged does not exist or that there is no need for protection of women against barbarism. What needs to be remembered is that mere creation of rights can never be the anathema for all social evils. Legal reforms are meaningless unless they are preceded by social reforms. The gross abuse of Section 498-A IPC (turning every next case of marital feud into one of cruelty for dowry) by unscrupulous lot has been too well known to be ignored. Perhaps due to the consequent skepticism, the cry of real victims gets ignored. No wonder, the conviction rate in such cases is too abysmal to be quoted in support of claims about impact of said legislation. Lessons learnt from that experiment needed to be borne in mind by lawmakers before they introduced yet another legislation without built-in checks against misuse.
If our society has women like Indra Nooyi & Kiran Majumdar Shaw who have scaled peaks in their career, we also have women in our hinterlands that are treated as chattel. The difference lies in upbringing, in education, in awareness, in mindset, in social conditions. Battle against the malaise of domestic violence has to be waged first by the social scientists than by lawyers since it requires use more of classrooms than courtrooms. Plato was being too simplistic when he said, "Good people do not need laws to tell them to act responsibly, while bad people will find a way around laws". Relevance of laws will always exist till we achieve utopia (which might never come!). The objective of emancipation of women requires, more than laws, breaking free from shackles of social taboos, education and above all economic independence.
The idea of "Domestic Violence Act" (as enacted) seems to have stemmed from the feminist legal theory that regards men as the source of women's problems. Without sounding to be dismissive or trivializing many problems that women face, what one is introducing here for debate by the civil society is the plea for scrutiny of this new legislation from the perspective of advantages and limitations of law as an instrument of social change.
As Steven Vago (of Saint Louis University, US) would put it, it is always "tempting and convenient" to single out "one prime mover" to trigger social change and use it for a number of situations. Blind application of this tendency to legal changes can be counter-productive if not outright dangerous since undue weight "in isolation" cannot be assigned to any one of the multitude of causes underlying the problem and which might be inter-related and so deserving a cure in a different order.
Law is determined by the sense of justice and the moral sentiments of the populace governed by it and, therefore, (as Vilhelm Aubert would put it) "legislation can only achieve results by staying relatively close to prevailing social norms". Since it needs the support of society, such law cannot force upon the society a radical change of morality and values unless the social institutions first change behavior patterns. But then, it is equally true and now beyond debate that legislation "is a vehicle through which a programmed social evolution can be brought about". The conflict persists, however, on the issue as to when and under what conditions the law cannot "only codify existing customs, morals, or mores, but also ….. modify the behaviour and values presently existing in a particular society" . What must be borne in mind is that the efficacy of law as an instrument of social change depends on a variety of factors that include not only the pre-requisite that it be free from vagueness or ambiguity ("Vague rules permit multiple perceptions and interpretations" and consequently "loopholes" ) but also, and most important, the assurance (to win respect, acceptability and compliance) that it is "reasonable, not only in sanctions used but also in the protection of the rights of those who stand to lose by violation of the law" .
Domestic Violence Act fails, on various fronts, the muster of an effective piece of legislation aiming social engineering. For the starter one may say, it is founded on the premise (not supported by any reliable evidence or data) that domestic violence at the hand of menfolk is the general rule in every next household; it creates new legal concepts that are dangerously imprecise; it promotes social norms that are in stark conflict with existing traditions, values, beliefs and sense of morality; and it provides a process that is lopsided as it lacks in attributes of fairness or reasonableness.
One would rather deal with the subject against the backdrop of, and with reference to, the concepts newly introduced, in light of the meaning assigned to each of them in the overall scheme of the substantive provisions and the procedure thereby created.
The expression "Domestic Violence"
Domestic Violence Act has been designed to create certain civil rights, some declaratory (for example, the right to protection against domestic violence) and some substantive (for example, the right to maintenance, right to compensation on account of the domestic violence, right to reside in a shared household, right to custody of children, right to medical expenses etc.). But the law essentially falls under the criminal jurisprudence not merely because it is enforced by magistracy under the Criminal Procedure Code, 1973 (CrPC) but also and mainly because the consequences of breach of certain orders passed by the criminal court for affording to the aggrieved woman the due protection of law has been made a new penal offence (Section 31).
It is imperative for a study of this kind to find out as to what was the legal position in domestic violence cases prior to introduction of this new law, so that it can be examined as to what is new about this additional measure. The main penal law in India is provided in Indian Penal Code, 1860 (IPC), initially introduced by the British rulers but adopted for continuation upon independence.
Chapter XVI of IPC relates to offences affecting the human body which include not merely culpable homicide (including one amounting to murder) but also hurt (simple or grievous) and involves within its sweep cases of wrongful restraint, wrongful confinement, use of criminal force, assault simpliciter, kidnapping or abduction or trafficking in human beings and sexual offences including rape and unnatural offence. The offence of dowry death (Section 304 B) was added in 1986, along with the offence of cruelty by husband or relatives of husband (Section 498-A) in the wake of outrage felt by the civil society due to increased incidents of cases where women had been subjected to harassment soon after marriage mainly with a view to coerce them or their relatives to meet unlawful demands for dowry or on account of the failure to do so.
Before proceeding to appreciate the impact of the new legislation, it is necessary to bear in mind certain facets of existing law governing human body. They include the following:
It is plain that the expression 'hurt', as defined in Section 319 IPC includes causing of 'bodily pain, disease or infirmity' to any person.
The meaning of the expression 'cruelty' used in Section 498-A IPC has been defined to include willful conduct as is likely to endanger the life, limb or 'mental or physical' health of the woman. In this context, it must be mentioned that a cruelty of such nature would constitute the offence under Section 498-A IPC even if it is not connected with an intent to coerce the woman or her relatives to meet any unlawful demand for dowry etc. in as much as the two clauses of the explanation appended to Section 498-A IPC are exclusive and independent of each other.
The general penal law prohibits non-consensual sexual intercourse between persons not related to each other by marriage. Undoubtedly the law has generally disfavoured the married women in matters connected with forced sex or sex without their consent or not involving their will vis-à-vis the husband in that the exception to Section 375 IPC makes it clear that sexual intercourse by a man with his own wife, the wife not being under 15 years of age is not rape, notwithstanding the fact that such intercourse may be against her will or without her consent.
Section 377 IPC renders taboo even a consensual non-vaginal coitus and carves out no defence for husbands vis-à-vis the wives.
The offence commonly known as outraging modesty of a woman (Section 354 IPC) is one of the aggravated forms of assault or use of criminal force particularly made to protect women against such indecent advances as violate their dignity. It is well settled that this law protects not merely an adult woman but even a female infant.
Unlike the offence of rape where, as seen above, under our law the married woman has been at some disadvantageous position, Section 354 creates no defence in favour of a husband in relation to the wife, though it must be added, that this penal clause has been rarely used by women against the husbands in matters of sexual abuse.
Chapter XX of IPC provides for offences relating to marriage that include not merely bigamy or adultery but also cohabitation caused by a man deceitfully inducing a belief in the woman of lawful marriage. The offence of criminal intimidation punishable under Section 506 IPC or intentional insult under Section 504 IPC covered by chapter XXII of IPC are penal clauses that can also be invoked, should the need arise, by a wife against the husband or vice versa. Offering insult to the modesty, or intrusion upon the privacy, of a woman by words, gestures etc. are an offence under Section 509 IPC, which provision makes no exception in favour of a husband.
Chapter XVII of IPC provides for offences against property that include not only theft, extortion and their aggravated forms in the nature of robbery and dacoity but also criminal misappropriation or criminal breach of trust. All these offences generally do not provide for an exception in favour of a husband or male relative, so long as the victim woman is able to pin down the offender with dishonest or fraudulent intention. Ever since the concept of entrustment of dowry in favour of husband or his near relatives at the time of marriage came to be accepted by the courts in India, the offence under Section 406 IPC has been regularly and flagrantly used by woman victims for demanding penal consequences for conduct leading to marital discord.
Section 3 of the Domestic Violence Act defines "domestic violence" to include "any act, omission or commission or conduct" of the man in question in relation to the aggrieved woman in case it attracts any of the following four clauses:
(a) harms or injures or endangers the health, safety, life, limb or well-being, whether mental or physical, of the aggrieved person or tends to do so and includes causing physical abuse, sexual abuse, verbal and emotional abuse and economic abuse; or
(b) harasses, harms, injures or endangers the aggrieved person with a view to coerce her or any other person related to her to meet any unlawful demand for any dowry or other property or valuable security; or
(c) has the effect of threatening the aggrieved person or any person related to her by any conduct mentioned in clause (a) or clause (b); or
(d) otherwise injures or causes harm, whether physical or mental, to the aggrieved person.
Clause (b), as extracted above, is clearly meant to extend the offence under Section 498 A IPC, for the benefit of women related to the male offender otherwise than on account of matrimonial connection. Clause (a), inter alia, renders various forms of abuse to be included in the concept of "domestic violence", the abuses being mainly of four categories namely physical abuse, sexual abuse, verbal and emotional abuse and economic abuse.
The expression "physical abuse" is defined in Explanation-I (i) of Section 3. The inclusive definition, even if read in conjunction with the words that precede in clause (a) ("harms or injures or endangers the health, safety, life, limb or well-being whether mental or physical of the aggrieved person"), each facet of the physical abuse defined in the above provision has been made punishable under the cover of some or other penal clause even under the existing law.
The expression "sexual abuse", employed as one of the facets of domestic violence in this law, is an area that is likely to be most prone to abuse in the course of its enforcement. This needs elaboration.
The phenomenon called "sexual abuse" is defined very widely by Explanation-I (ii) of Section 3. The limited nature of protection under Section 375 IPC in the matters involving forced sexual intercourse with wife notwithstanding, in the teeth of the fact that wife has all along been entitled under the general law to protection against sexual abuse under the cover of Section 354, 377 and 509 IPC, there can be no denial of, or doubt about, the fact that every woman is entitled to the protection of the said criminal law provisions. Need one refer here, for driving the point home with full force and vigour, that judicial view in this country has been that even a prostitute is entitled to protection against forced sexual intercourse. In this view, one finds that the new law breaks no fresh ground in matters of sexual abuse of women except by explicitly stating what has always been implicitly the legal position.
The expression "verbal and emotional abuse" as used in Section 3(a) is defined in Explanation-I (iii) . Offering insult or ridicule to, or humiliation of, a woman including with intent to hold her responsible for, or accusing her of, not being able to bear a child or a male child, are nothing but acts of commission or omission designed to adversely affect the mental health of the woman within the meaning of expression "cruelty", already punishable under Section 498-A IPC. Similarly, threats to cause physical pain are covered by the offence of criminal intimidation punishable under Section 506 IPC. Thus, the so-called "verbal and emotional abuse" referred to in Section 3 of Domestic Violence Act is only re-stating, for the purposes of this new law, certain category of criminal conduct, the only difference being that it now stands collectively described as "verbal and emotional abuse".
More or less similar situation ordains in relation to "economic abuse" described by Explanation-I (iv) . Depriving a woman of any of her economic or financial resources to which she is entitled has been a penal conduct even under the existing law. If the woman has been deprived of her property dishonestly, it amounts to theft, if this deprivation occurs by putting her in fear of any injury etc. so as to induce to deliver the property it amounts to extortion. If under some deception, she is fraudulently or dishonestly induced to part with her property it amounts to cheating. If it results in destruction or damage to her property it would be mischief. If the deprivation is in respect of the immovable property (even if temporary, though) without her consent, which she possesses, it would be criminal trespass.
Most importantly, if the deprivation amounts to conversion to own use of a property of the woman held in trust by the man, it constitutes criminal breach of trust. As indicated earlier, the last-mentioned penal provision has been oft-used in matrimonial disputes with regard to articles of dowry or stridhan and, in our jurisprudence, there is no defence available to a husband that he could freely lay hand on the property of his wife only on account of the marital relationship.
In above view, the deprivation of economic or financial resources, stridhan or property etc. to which the aggrieved woman is entitled under the law, as is mentioned in sub-clause (a) of clause (iv) of Explanation-I is nothing but reiteration of the existing law on the subject. Same would apply to disposal of any property of the aggrieved woman in sub-clause (b) of the same provision.
The expression "economic or financial resources to which the aggrieved person is entitled under any law or custom whether payable under an order of court or otherwise" is clearly indicative of inclusion of the amount of maintenance to which a married woman or dependant female relative is entitled under the existing civil or criminal law of the land. The amount of maintenance granted by the civil courts is recoverable ordinarily in the same manner as any money decree would be executed. The criminal law, for which reference may be made to the procedure for Section 125 CrPC, does permit immediate use of duress in the form of imprisonment for each month's default and thus had been sufficiently taken care of even before the new law caused to brand it as "economic abuse".
But then, the concept of "economic abuse" used in Section 3 of Domestic Violence Act does go beyond what has been the law thus far. The additional arena created includes:
Deprivation of such economic or financial resources as the aggrieved person 'requires out of necessity', rendered of widest amplitude by further clarification that this shall be 'not limited to household necessities' for the aggrieved person and her children.
The alienation of such movable or immovable asset as to which the aggrieved person 'is entitled to use by virtue of the domestic relationship or which may be reasonably required by the aggrieved person or her children' is also now treated as 'economic abuse'.
A restriction against access to 'resources or facilities' which the aggrieved woman is entitled to 'use or enjoy by virtue of the domestic relationship' including access to the shared household amounts to economic abuse, especially enlarged to the extent of including within its effect even such household where the aggrieved person at any stage has lived 'in a domestic relationship' even singly, even if the premises in question is owned or tenanted by respondent male in question and even including a property that is the joint property of the family of which the respondent male is a member, even though the aggrieved woman may not have 'any right, title or interest' in such property, this courtesy the meaning 'shared household' is assigned in Section 2 (s) of the Domestic Violence Act.
Clause (d) of Section 3 throws the field wide open for all kinds of injuries or harm (physical or mental) caused to the aggrieved woman under the umbrella of "Domestic Violence" by failing to qualify the expression "injuries or causes harm" with a particular mental state and by using the expression "otherwise" apparently to take the misdemeanour beyond what is perceived in the preceding three clauses.
The scope & width of the new offence relating to domestic violence
Contrary to popular public perception generated after coming in force of the Domestic Violence Act, it does not create "domestic violence" per se to be an offence. What has been made penal by Section 31 is the conduct on the part of the male offender qua the female victim in the domestic environment amounting to breach of a "protection order" (which includes an interim or even an ex parte protection order) obtained by the latter from a Magistrate under Section 18 (or Section 23). The offence under Section 31(i) is declared by Section 32 to be "cognizable and non-bailable".
In order to understand as to how the aforesaid penal provision would work, it is necessary to comprehend as to how and what kinds of protection order can be obtained from the Magistrate by the aggrieved woman. Section 18 , dealing with the subject at length, provides that a Magistrate is expected to issue protection order upon prima facie satisfaction that "domestic violence has taken place or is likely to take place". In other words, a woman can approach the Magistrate for such an order not only upon being subjected to domestic violence but even at a stage when she expects to be subjected to domestic violence. The protection order, a bare reading of the provision clearly shows, is essentially an order of injunction. It is a prohibitory relief calling upon the respondent to refrain from doing certain acts qua the complainant woman.
The jurisdiction vested in the Magistrate to pass such prohibitory orders interdicting the respondent from committing any act of domestic violence (or aiding or abetting in such conduct) is a concept that goes against the legal principles that have generally been applied in matters relating to the law of injunction. I may illustrate this by referring to Section 41(h) Specific Relief Act which lays down the general rule that an injunction cannot be granted when equally efficacious relief can certainly be obtained by any other usual mode of proceeding.
Penal law of a State generally works on two assumptions. Firstly, that every one is supposed to know the law, and secondly, that every one shall obey the law without being specifically directed to do so. To put it slightly differently, a citizen accused of the offence of murder cannot turn around and complain that no one told him that he was not supposed to commit the offence of murder. Except for the areas where the concept of domestic violence breaks new ground, all the acts which have been treated as foul under the new legislation have been part of the criminal law of the country and, therefore, every person is expected, even without a prohibitory dictum in the nature of protection order, to refrain from causing any harm or injury to the mental or physical health of the woman relative. The frivolity of the concept of protection order introduced by this law comes to the fore when an anxiety is raised as to whether a husband against whom no protection order has been passed is free to cause any harm to his wife. Since the answer obviously would be in negative, it is beyond comprehension as to how the issuance of a protection order would add to her protection against repetition of violence in future.
It is noticeable that the order that a Magistrate may pass to protect the aggrieved woman from possible domestic violence includes an injunction against the possible perpetration of domestic violence asking him to refrain from being in vicinity of any place that may be "frequented by the aggrieved person" or from operating a bank account "enjoyed by both the parties", even if it were held "singly by the respondent". The law makers in their anxiety to provide legal protection to the woman seem to have gone overboard. The place "frequented by the aggrieved person" would undoubtedly include the house where both parties may have been living together before their relations turned sour. The house in question may in fact be owned or taken on rent by the male respondent. The aggrieved woman may have no right, title or interest in respect of such premises. This is clear also from the provisions relating to the "right to reside" to which one shall revert later for elaborating certain other grey areas. By asking the male respondent (through the protection order under Section 18) to refrain from entering into such a place only because it is "frequented by the aggrieved person", the Magistrate would in fact be throwing out the male respondent from his own house on to the road. Similarly, by asking the male respondent to refrain from operating bank account held singly by him only because he had shared its credit assets with the aggrieved woman at some stage, the Magistrate would in fact be depriving the former from his daily subsistence, in the name of affording protection to the woman.
In the above context, it is essential to take note of four other provisions of Domestic Violence Act. Section 23 empowers the Magistrate to pass an interim order in the course of any proceedings before him that would include under Section 18. Under the same provision, upon prima facie satisfaction "on the basis of affidavit", inter alia, that the application discloses that "there is a likelihood" of domestic violence being committed, he may grant an ex parte protection order under Section 18. There is nothing in the entire statute to indicate as to how long such an ex parte order would obtain. In this view, the dicta of Section 25 that a protection order under Section 18 shall be in force "till the aggrieved person applies for discharge" would operate with equal force even qua an interim order. The general rule of the Code of Civil Procedure (CPC), in Order 39 Rule 3 A, that in case ex parte injunction has been granted, the application for injunction has to be finally decided within thirty days cannot apply to these proceedings under Domestic Violence Act since Section 28 renders it subservient to CrPC. In the face of the provision contained in Section 28, this shall be the position even if relief under Section 18 is claimed, by virtue of Section 26, before a civil court.
Bearing in mind the above referred provision of this law, possibility cannot be ruled out that a woman should introduce some doubts about the conduct of the male respondent (say the husband) with whom she has lived for some time in a shared household and, in her anxiety to bind him, approach a Magistrate with an application under Section 18 read with Section 23 asserting, on affidavit, that the latter is likely to subject her to some emotional abuse and seek an ex parte interim protection order prohibiting him from entering his own house or operating his own bank account, thereby rendering him totally at her mercy. The incongruity of the impact hits in the face when one reads these provisions in conjunction with the penal clause under Section 31 that renders breach even of interim order a cognizable offence attracting substantive sentence. In this scenario, the concerned male respondent is likely to be deprived of all possibility of presenting his side of the story since there is nothing stopping an unscrupulous woman from following the grant of an ex parte interim order immediately with an application that the order has been breached.
Right to Reside
Undoubtedly, given the tradition-bound social norms that patriarchal Indian families generally follow, the girl child is supposed to have her connection with the parental home severed upon marriage, when she becomes a member of the family of her husband for all intents and purposes. There have been positive changes in the law of succession, in recent times, to give certain rights even to married daughters vis-à-vis the property of their parental family. But, the fact remains that under our system the married woman adopts the household of her husband as her own. It is for this reason that whenever the necessity to fix a maintenance allowance in her favour arises, she has always been held entitled to award of maintenance allowance in such quantum as would ensure that she continues to enjoy the same status and quality of life as she would have enjoyed if she had continued to live in her matrimonial home with her husband. In fact, these standards are reiterated and prescribed even by Domestic Violence Act through Section 20(2) .
Unfortunately, there have been cases galore where upon marital discord married women have been thrown out of the matrimonial homes. In such situations the victims, in particular, from orthodox background find it totally unacceptable to go back to their parental family for shelter or support. The provision of maintenance allowance under Section 125 CrPC was essentially created as a measure of protection to such vulnerable group in as much as their proneness to abuse, when in lurch, is a cause of concern of orderly society. The courts, in recent times, have shown innovation by binding the husband (or the male relative) with responsibility to provide some residential accommodation even in the matrimonial home to save the hapless woman from vagrancy. The statutory right to reside in a shared household in favour of an aggrieved wife (or dependent woman relative) under the Domestic Violence Act is undoubtedly a positive development. But, the framers of the law, in their anxiety to cast the net wide, seem to have again lost touch with reality and gone over-board. The relevant provisions that need to be examined in this context are contained in Section 17 and Section 19(1).
Section 17 talks of "right to reside in a shared household" . It creates a statutory right in favour of "every woman in a domestic relationship", an expression, given the wide meaning assigned to "domestic relationship" by Section 2(f), includes not only the wife or a woman related by blood but also a female friend who has lived, even for a small period under the same roof with the male respondent without entering into a marriage. The right declared by Section 17 is that every such woman shall be entitled to reside in the shared household whether or not she has any right, title or beneficial interest of her own in the premises in question. The right is absolute and subject to denial only in the event of eviction or being excluded "in accordance with the procedure established by law".
Section 17 is merely declaratory of the right of the aggrieved woman to reside in a shared household. The procedure for securing the said right is given in Section 19 that also sets out the various elements which can be introduced in "residence orders" . But then, Domestic Violence Act nowhere makes it clear as to by what procedure an affected respondent would be able to secure an order of eviction or exclusion against such woman. There is no time limit prescribed during which the said right to reside would obtain in favour of the woman. Since this right to reside has been created by this special law in favour of a special class of women, it will not be controlled by the existing legal framework including the Transfer of Property Act, inasmuch as and particularly because the right to reside thus brought in existence is de hors the "right, title or beneficial interest". In absence of any provisions or mechanism to such effect within the special law, the male respondent is without a legal remedy against a woman for whose benefit this right to reside was never intended. This, because neither Section 17 nor Section 19 set out sufficiently the parameters on which the claim to this right is to be tested by the Magistrate. In this view, the availability of the forum of appeal under Section 29 is also of no solace.
Interestingly, Section 17 and Section 19 are structured so as to operate in different fields. Section 17 is a general right declared in favour of every woman in a domestic relationship vesting in her not merely the right to reside in a shared household but also the right not to be evicted or excluded there from by the male respondent. This right is not dependent upon allegations, or history, of domestic violence. Section 19, on the other hand, permits an order to be passed, in the event of domestic violence, to facilitate the enjoyment of the right to reside in the shared household against the backdrop of feud between the parties. The jurisdiction to restrain the respondent from disturbing this right to reside even after the souring of relations between the parties can be understood, at least to the extent of married wives declining to go back to the parental home. But, some of the possible restraint orders indicated in Section 19 seem wholly unjustified and unfair. Amongst the last mentioned categories one may include the following:
direction to the male respondent to remove himself from the shared household [Section 19(1)(b)];
restraining the respondent from alienating or disposing off the shared household [Section 19(1)(d)];
restraining the respondent from renouncing his rights in the shared household except with the leave of the Magistrate [Section 19(1)(e)].
It is plain and obvious that recourse to the Domestic Violence Act would be made mostly in cases of marital discord by the wives against the husbands. These disputes invariably would come up for adjudication, also before the matrimonial courts, which are expected to deal with them with requisite sensitivity. Order XXXII-A CPC contains elaborate dicta to be followed by the courts dealing with matters concerning the family. Rule 3 of Order XXXII-A CPC enjoins upon the court to make endeavour in the first instance to assist the parties in arriving at a settlement. In fact, amicable settlement of disputes is the mantra that is now followed by courts across the board, ever since Section 89 CPC was (re)inserted in 1999, particularly encouraging the utilization of the tools of conciliation and mediation. Experience shows that, given proper encouragement, parties to a marriage that has run into rough weather are generally inclined to make fresh attempt to bury the hatchet, forget the past, forgive each other and try to live together so that the marriage can be saved; this, particularly when the issues embrace not merely the two of them but the innocent children they have together brought into the world. Seen in this light, the direction to the male respondent to remove himself from the shared household is not only unjust and unfair to him, a person in whom the right, title or interest in the property vests but also to the prospect of reconciliation between the parties. In this view, with no guidelines provided, such an order, if permitted to be passed by the Magistrate would work, in the long run, against the interest of the woman herself. The husband having been thrown out by the law, it is not conceivable as to how the system expects the parties to even broach the subject of coming together.
As mentioned earlier in this paper, the expression "shared household", as defined by Section 2(s), may include a property of the joint family of which the male respondent is merely one of the several members. By putting a restraint against alienation, disposal or renunciation of rights in such shared household, the law seeks to virtually shackle the rights of even such persons who may not have any role to play in the dispute from which the controversy has arisen.
Monetary reliefs
Section 20(1) empowers the magistrate to grant "monetary reliefs" in favour of the aggrieved woman. As indicated in the opening clause, the purpose and intent of this provision is ameliorative; viz. to help out the woman to meet the expenses incurred and losses suffered "as a result of the domestic violence". In this context, one can understand the quantum taking into account the loss of earnings, the medical expenses or the loss caused due to damage to the property etc. Inclusion of clause (d) of Section 20(1), however, is misplaced.
The jurisdiction of the magistrate to grant maintenance allowance is governed by Section 125 CrPC. There was absolutely no reason why it should be mentioned amongst the monetary reliefs meant to help the woman meeting the expenses consequent to the domestic violence. This is bound to create not only utter confusion but also multiplicity of proceedings and consequences which would be grossly unfair to both parties.
Experience shows that in spite of the secular law of maintenance available under Section 125 CrPC to all sections of the society, now rendered not even subject to any ceiling on the quantum of allowance that can be fixed (after amendment brought about to Act 50 of 2001), resort is made to the said statutory remedy in addition to, and not as alternative to, the right to secure maintenance allowance under the personal laws. Thus, even under the existing arrangement almost every set of parties is locked in litigation over the issue of maintenance simultaneously in the civil as well as in the criminal courts. A need to simplify the procedure and avoid multiplicity of proceedings, particularly, in family disputes has been long felt. Some hope was generated in this regard when the Family Courts Act was enacted. But then, the said law has not been brought in force in all parts of the country. The creation of another statutory provision permitting maintenance allowance to be claimed would undoubtedly be construed by ill-advised parties as yet another forum where opposite party could be dragged for similar relief to be agitated. This is bound to add to the multiple proceedings in which the parties may already be spending out their time, energy and resources.
It appears that the reference to the grant of maintenance allowance in Section 20(1)(d) has been included with intent to extend the provisions of Section 125 CrPC, in favour of such woman who cannot claim to be lawfully wedded wife or daughter of the male respondent. If that were the objective, it should have been clearly spelt out and subjected to some guidelines as to the period for which they would be entitled to maintenance allowance from the male respondent and under what circumstances an order granting such allowances can be rescinded, altered or withdrawn. After all, mere reference to provision would not graft the remedies to such effect as contained in Section 125 CrPC, which is meant essentially for wives, parents and children only.
The possibility of abuse of Section 20(1)(d) is writ large when seen against the prospect of a female friend having lived with the male respondent under the same roof in what is now popularly called as live-in relationship (i.e. without marriage) even for a month or so claiming maintenance allowance under the said provision, with no restrictions attached and so possibly for the rest of her life.
Counselling
Section 14 of the Domestic Violence Act takes its cue from the present approach of the law to seek amicable settlement of disputes and, therefore, permits the Magistrate to direct the parties to undergo "counselling" in the hands of experts in the field. Undoubtedly, the idea behind this provision is salutary; that is to say, to help the parties come to terms with the past history so that, if possible, they could forgive & forget and get on with their lives, may be in continued relationship, such that peace & harmony would prevail and, at the same time, the woman could feel insulated from further violence.
An expert counsellor would not broach the issue with the parties in a manner that could smack of pre-conceived notions of guilt. The issues of this nature involve human beings and their emotions. A good counsellor would first win the confidence of parties by showing understanding and then suggest measures such that the parties are able to overcome their respective weaknesses or faults and adjust with each other. Any effort of such nature approached by a counsellor who is judgmental (as to the guilt of one or the other side), even at the outset, is destined to fail and thus would be a waste of time & energy.
Fortunately, the Parliament while enacting Domestic Violence Act did not put any pre-conditions to the process of counselling in Section 14. But, the Central Government in exercise of its powers under Section 31(1) read with Section 37(2)(k) while framing rules, called the "Protection of Women from Domestic Violence Rules, 2006" (hereinafter called the "Rules"), seems to have not only exceeded its jurisdiction in the matter of subordinate legislation but totally misconstrued the object of the mechanism of counseling.
Section 14(1) had left out only the clarifications and experience of the counsellor to be prescribed by the rules. This is what was desired by Section 37(2)(k). One has serious reservations about certain clauses of Rule 14 which pertain to the process of counselling.
Rule 14(3) and Rule 14(6) render the process of counselling subject to compliance by the male respondent with the requirement to "furnish an undertaking that he would refrain from causing such domestic violence as complained by the complainant" and further, in appropriate cases an undertakings that he "will not try to meet or communicate in any manner" except in the counselling proceedings. Rule 14(4), prescribing the procedure to be followed by the counselor, though enjoining upon the latter to assist the parties to reconciliation makes it incumbent upon the counsellor to, inter alia, get "anassurance that the incident of domestic violence shall not be repeated".
The onus of furnishing an undertaking (that the respondent would refrain from causing domestic violence) or a written statement (that he shall not repeat the domestic violence) puts the cart before the horse. It proceeds on the assumption that there is no reason to doubt the veracity of the allegation that the respondent has committed or is likely to commit domestic violence. Since the proceedings before the counsellor can take place even at the outset (Section 14 prescribes "at any stage of the proceedings"), the male respondent (when he is required by the law to undertake that he shall not repeat the incident of domestic violence) stands condemned without being heard since in the undertaking the admission of guilt (that he had in fact indulged in such domestic violence) is implicit. If there be any doubts left, Rule 14 (5) makes it unmistakably clear that the respondent shall have no occasion to plead the defence of "justification".
With these kinds of fetters put, the expectation of Rule 14 (7) (8) & (9) from the Counsellor to make efforts of "arriving at a settlement" or "understanding" is misconceived. This inasmuch as a person virtually told at the outset that he is presumed to be guilty of domestic violence and will not be allowed to plead any justification, what with the whole purpose of counselling being to secure from him an implied admission along with an undertaking to behave in future, is hardly expected to repose any faith in the process so as to be ready to hear, least of all even remotely consider, suggestion for amicable settlement. Given such handling of the process of conciliation, the assurance in Rule 14 (17) that a request for alteration (that could stem from settlement arrived before counsellor) shall not be acted upon if found to be "vitiated by force, fraud or coercion or any other factor" holds no meaning for the male respondent for whom the law itself worked as a coercion.
Domestic Incident Report
Amongst the functionaries specially conceived and provided for by the Domestic Violence Act, the Protection Officer seems to be the most important; in that, he not only assists the Magistrate in the discharge of his functions under the law but also works as a liaison between the aggrieved woman and the various authorities. It may be mentioned at the outset that the qualifications & experience which a Protection Officer must possess have been left by Section 8(2) to "be prescribed".
The Central Government while framing the rules in exercise of power conferred by Section 37(2)(a) has virtually delegated the power in above regard to the State Governments by giving the liberty, by Rule 3, to appoints an officer of the State Government as the Protection Officer. In addition to this, the State Governments have also been given the liberty to appoint "members of non-governmental organization".
The nomenclature "Service Provider" has been used as an additional machinery to aid and assist the protection officer and, as indicated in Section 10, would be voluntary association or a company working "with the objective of protecting the rights and interests of women by any lawful means".
The Domestic Violence Act lays great emphasis on Domestic Incident Report, for convenience hereinafter referred to as "DIR".
Even a cursory perusal of the provisions and scheme of the statute would indicate that the aggrieved woman is expected to lodge a DIR so as to secure her rights under the law. Section 9 prescribes the duties and functions of the Protection Officer whereas Section 10(2) prescribes the powers of the Service Provider. In terms of Section 10(2), it is the Service Provider who is expected to "record" the DIR and then make it over to the Magistrate and the Protection Officer. Under Section 9(1)(b) the Protection Officer is required to make a DIR to the Magistrate upon receipt of a complaint of domestic violence. Making of a DIR to the Magistrate under Section 9(1)(b) is distinct from recording the DIR under Section 10(2)(a).
Rule 5 framed by the Central Government goes beyond this scheme by permitting lodging of DIR either with the Protection Officer or with the Service Provider. This, strictly speaking, may not be a desirable state of affairs, in as much as lodging of DIR with the Protection Officer would render the service provider purposeless.
Be that as it may, the Rules prescribe the Form (No. I) in which DIR is to be recorded. Since DIR would turn out in such matters to be virtually the first authenticated report (of the incident) by the aggrieved woman to the statutory authorities, it would have great evidentiary value and thus significant impact on the proceedings that would follow. It would be akin to the First Information Report (FIR) registered by police under the Code of Criminal Procedure (Section 154/155).
Since breach of a protection order passed by the Magistrate under Section 18, presumably invariably on the basis, amongst others, of DIR is classified as a cognizable and non-bailable offence, it is absolutely essential that all possibility of abuse of the process of DIR are plugged and precluded. The cases of ante-dating or ante-timing of FIRs are not hard to find. They have been too many and too frequent for comfort. Same could happen to the process of DIRs. One of the methods by which the law obviates the possibility of such fabrication in the context of FIRs is through the requirement that such reports be entered in a bound book with pre-printed consecutively numbered pages. The further requirement that copy of the FIR be transmitted forthwith to the Magistrate works as sufficient safeguard. The prescription as to the form of DIR in the Rules does not contain any such safeguards and thus could be a fertile ground for misuse of the law in unscrupulous hands.
Domestic Violence Act aims to protect the woman from domestic violence. It has already been noticed that almost each facet of the expression "Domestic Violence" covered by its statutory definition in Section 3 is cognate to some existing cognizable or non-bailable offence. Under the prevalent criminal jurisprudence, it is the statutory duty & responsibility of the police to register an FIR upon the complaint being made or information being given about commission of a cognizable offence (Section 154 CrPC) or non-cognizable offence (Section 155 CrPC). Given the area assigned to various functionaries and the method of process prescribed for purposes of this law, police department is bound to have a role to play in every case covered by Domestic Violence Act. In this view, the requirement of registering DIR only adds to the form rather than substance and, therefore, seems wholly unnecessary.
Interestingly, the proviso to Section 5 makes it clear that the role assigned to other functionaries under this law is not to be construed as relieving the police officer from his duty to proceed in accordance with the law in the matter of a cognizable offence. If it were so, the law has added the formality of DIR for no conceivable purpose. In fact, such additional formality would be against the interest of the victim woman who invariably needs immediate assistance of police which is trained & equipped to not only secure the necessary legal or medical assistance but also collect evidence to pin down the wrong-doer.
Duties & Powers of Protection Officer
Protection Officer is appointed under this law mainly to assist the Magistrate in the discharge of his functions and to help out the aggrieved woman in securing various reliefs including in the matter of report to the police, recourse to special remedies with requisite legal aid, as indeed access to counseling, shelter homes, medicare and in securing enforcement of the orders. Section 9(1) of the Domestic Violence Act indicates the charter of his duties, clause (i) leaving scope for additional duties through prescription under the Rules. The Central Government, in exercise of its powers in this behalf as also indicated in Section 37(2)(f), has included in Rule 10 the additional duties of the Protection Officer.
Some of the duties mentioned in Rule 10 to be performed by the Protection officer when directed to do so in writing by the Magistrate need special notice. They include the following:
Restore the possession of the personal effects including gifts and jewellery of the aggrieved person and the shared household to the aggrieved person;
Assist the aggrieved person to regain custody of children and secure rights to visit them under his supervision as directed by the court;
Assist the court in enforcement of orders in the proceedings under the Act in the manner directed by the magistrate, including orders under Section 12, Section 18, Section 19, Section 20, Section 21 or Section 23 in such manner as directed by the court; and
Take the assistance of the police, if required, in confiscating any weapon involved in the alleged domestic violence.
Undoubtedly, the Protection Officer is an agent of the Magistrate. When directed to carry out certain tasks by the court of Magistrate, he does enjoy a certain status and authority. But then, it has to be remembered that the Protection Officer is not a police officer. He does not have the authority or wherewithal to forcibly seize or take over any article or take over possession of a premises. He also does not have the requisite capacity to control the custody, even for a short while, of human beings (children). These are all tasks in which the officers of police department have the requisite training, competence and powers under the law. A Protection Officer does not carry out a probe in the sense of investigation by the police into cognizable offences. In this view, it is neither desirable nor of any purpose to expect him to confiscate weapon(s) involved in domestic violence. That is an area better left to the police. The police do not require any assistance of the Protection Officer for seizure or confiscation of weapons of offences. In absence of any statutory authority to seize any article or take control of any premises, the Protection Officer would never have the competence to "restore" such property to the aggrieved woman.
Interestingly, the statutory provisions of the Domestic Violence Act are totally silent, except in the context of protection orders, as to how the orders in the nature of Residence Orders (Section 19), Custody Orders (Section 21) and Compensation Orders (Section 22) are to be executed or enforced. All that Section 28 says is that the provisions of Code of Criminal Procedure 1973 shall govern these proceedings. For purposes of vesting the requisite authority, a clear provision regarding the execution or enforcement would be necessary. The Rules are also generally silent in that reference to Section 125 CrPC, in the context of application under Section 12, in Rule 6 (5) leads one nowhere on the subject of execution which is controlled not by Section 125 CrPC but by Section 128 CrPC.
Standard of proof
Every action under Domestic Violence Act hinges upon the construction of the expression "domestic violence" against the backdrop of each individual case. Explanation-II to Section 3 renders the issue too subjective by stating that for purpose of determining whether any act or conduct constitutes domestic violence, the "overall facts and circumstances of the case" shall be taken into consideration. The expression "overall facts and circumstances" is not only vague but also relative. It is bound to lead to inconsistency which is never a healthy trend in the context of a penal law. Section 32 (2) making provision regarding "proof" is also of no assistance when it says that the court may draw conclusion upon "the sole testimony of the aggrieved person". This has all along been the law of evidence in our country where courts would insist not on quantity but quality of evidence.
Consequences of breach of orders (other than protection order)
Chapter IV of the Domestic Violence Act deals elaborately with the procedure for obtaining various substantive reliefs that mainly include Protection Orders, Residence Orders, Monetary Reliefs, Custody Orders and Compensation Orders. While the breach of Protection Orders passed under Section 18 entails invocation of a penal procedure under Section 31, there is virtually no effective mechanism provided for enforcement of the other promised reliefs.
Section 19(1) deals with the various facets of a possible residence order. What is striking in this statutory provision is that the law does not envisage the period for which such an order of residence would remain in force. In absence of such clarity, it would appear to be permissible for a Magistrate to pass an order for indefinite period of time. Section 19(3) only permits that the respondent may be required by the Magistrate to execute a bond for preventing the commission of domestic violence. This does not ipso facto mean that the respondent has undertaken before the Magistrate that he shall comply with the residence order.
Section 19(4) states that an order requiring the respondent to execute such bond would be deemed to be an order under Chapter VIII of the CrPC which relates to "security for keeping the peace and for good behaviour". This is also likely to create a highly undesirable situation. If the said provisions of CrPC are to be applied in the context of requirement under Section 19(3) for a bond to be furnished for preventing commission of domestic violence, breach thereof would necessarily entail consequences in the nature of imprisonment in default of security as provided in Section 122 CrPC. Section 122(1)(b) CrPC empowers the Magistrate to order the person to "be arrested and detained in prison until the expiry of the period of the bond" in case of breach of the bond furnished for good behaviour for a specific period. Since Section 19 does not require the period to be specified, a breach of the bond under Section 19(3) could very well be construed as to render it possible for the respondent to be indefinitely detained in prison.
Coming to monetary reliefs, sufficient procedure & powers are available to the Magistrate in so far as execution of an order under Section 125 CrPC is concerned. But there is virtually no mechanism provided to enforce the order of payment to meet the expenses on account of the loss of earnings, medical expenses or loss caused due to destruction/damage of the property. In the name of provision for enforcement, all that Section 20 prescribes is a possible direction under sub-Section (6) to "the employer or a debtor of the respondent" to pay such amount as could satisfy the monetary relief granted by the court. The legislation has not given a thought as to what would happen to the claim of an aggrieved woman if she is unable to trace a person who could be bound with such responsibility as that of employer or a debtor under Section 20(6).
The provisions relating to Custody Orders under Section 21 and Compensation Orders under Section 22 are totally silent as to the procedure of enforcement. As indicated earlier, in absence of clear provisions in such regard, mere reference in Section 28 to the provisions of CrPC cannot be construed as vesting in the Magistrate the requisite powers to enforce his orders in such regard.
Status of Protection Officer vis-à-vis Service Provider
The Protection Officer has been placed, by virtue of Section 9(2), under the "control and supervision" of the Magistrate. He is expected to perform the duties imposed on him by the Magistrate or by the Government. Section 35 clothes the Protection Officer with a protection against suit, prosecution or other legal proceedings in respect of any action taken by him "in good faith". Section 34 further enjoins that he cannot be prosecuted or proceeded against in a court of law except with the "previous sanction of the Government". But, in the event of a Protection Officer failing or refusing to discharge his duties without any sufficient cause, he would face criminal action for the offence provided in Section 33.
The Service Provider, envisaged in Section 10, is part of the machinery specially created for purposes of this law. His duties & responsibilities are akin to, if not more onerous than, those of the Protection Officer, in that the former acts at the cutting-edge level. As per Section 10(3), this functionary also enjoys similar immunity against legal action for anything done "in good faith". Having volunteered to provide the requisite statutory services, the Service Provider must also be subject to similar burden as carried by the Protection Officer. There is no reason why the penalty for failure or refusal to discharge duties under Section 33 should not also cover the Service Provider. At the most, such criminal prosecution can be made subject to "previous sanction of the State Government" by suitable amendment of Section 34 so as to include under its umbrella the office of Service Provider as well.
Additional burden cast on Magistracy
It is common knowledge that the magisterial courts across the length & breadth of this country are burdened with unmanageable number of cases. One of the prime reasons that have been acknowledged for the spiralling rise of pendency in these courts is the fact that there has been no increase in the strength of the magistracy corresponding to, or commensurate with, the additional burden created as a result of new legislation. One ready illustration in this context is the extra burden that was heaped on such courts as a result of the penal offence (of dishonour of cheque) introduced by Section 138 Negotiable Instruments Act.
Same appears to be the possible impact on the existing infrastructure upon coming into force of the Domestic Violence Act. There seems to have been no study made as to the additional litigation that would flow into the courts of Magistrates as a consequence of this law. If the new litigation generated by this legislation ends up further choking the criminal courts (already bursting at seams), instead of helping the cause of women, it would have only added to their woes. By being thrown into a maze of litigative process, they would find it very difficult to seek a way out.
Epilogue @
The above-mentioned facets of the Domestic Violence Act are only some of its features that leave one in a disturbed state of mind. Undoubtedly, in a society that seems to treat issues of the welfare of women too casually, some stringent measures are necessary to keep in check the unscrupulous & unbridled male of the specie. But this needed to be brought about not by adding to the statute book with ill-advised measures but through proper enforcement of the existing legal framework. In the endeavour to strike a balance between the mutual rights & obligations of men and women, the framers of the law seem to have gone overboard to load the dice totally against the former.
The institution of family is founded on mutual trust & confidence. If relations run into rough weather, the social mores & institutions try to bring about a rapprochement, inter alia, by coaxing, cajoling or prodding both sides to work together to restore harmony. The new dispensation throws these time-tested methods to winds and rather relies on bull-dozing the man into a settlement treating him, throughout the process, as a known-scoundrel and a person whose word (whether in defence or explanatory or offered as re-assurance for the future) is not to be trusted. He is dealt with as a man already condemned and who has no role to play in issues that affect his life as well, his right being restricted only to hearing the sentence in the form of "dos and don'ts", handed down as the prescription by the authorities in the name of protection orders. He is treated as a pariah in his own home turf. One wonders how this is expected to create a congenial atmosphere to bring back the love, affection & peace to the domestic life, so important for harmony in the society at large.
Civil societies everywhere promote monogamy. Illicit connexions, promiscuous relationships, bigamy or adulterous intercourse are some common reasons of marital discord. It has been almost a universal & consistent view of all modern societies to take the side of the legally-wedded wife and her legitimate children in the disputes stemming from such conduct. In the name of bringing about a radical reform for helping the cause of women at large, the Domestic Violence Act has created a framework that would treat each vertex of the triangle at par. The consequences are bound to be disastrous for the "wife" as the "other woman" now has equal claims over the "man" in matters of maintenance and shelter, two issues that count the most. The law projected as a welfare measure for women might boomerang destroying the life of women who reposed trust in the sanctity of marriage as an institution.
As one perceives it, the Domestic Violence Act represents a paradigm shift of the tectonic plates supporting the civil society, a shift that is designed to trigger a tsunami of legal wrangles that would tear apart the social fabric which is already disjointed and wearing out. One dreads at the prospect of the day when society, and the polity, would be picking up the pieces of its aftermath, may be within a decade from now!
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