ABOUT THE AUTHOR
The author is a Bhopal national Law University graduate. Having graduated from the university the author joined the prestigious Haryana judicial services. After having served for a period of five years the author opted for practicing before the honourable Punjab and Haryana High Court at Chandigarh as an independent council. The author has been practicing at the Chandigarh High Court since 2013 and is handling matters pertaining to the Criminal law, civil law, arbitration and other fields of law,
Domestic Violence Act: An Overview
An act of Domestic Violence against a woman is a basic impediment for the development of any society or nation. The need to address this issue and to curb this menace should be of the prime importance for a nation.
This need is not one which is to be construed as one that has recently arisen. The United Nations Committee On The Convention On Elimination Of All Forms Of Discrimination Against The Women (CEDAW) of which India is also a member, in its General Recommendation No. XII (1989) had recommended that the state parties should act to protect women against violence of any kind, especially that occurring within the family.
It is in the light of these recommendations that the Government of India, in order to check and curb the evil of domestic violence against a woman with in the family or shared household, presented a bill in both the houses of the Parliament for the Protection Of The Women From Domestic Violence, and the same got the assent of His Excellency the President of India on 13.09.2005 and the same was published in the Gazette and came into force as a legislation on 26.10.2006 as Protection of Women from Domestic Violence Act, 2005.(herein after referred to as Act)
Legislative Intent
The legislature while undertaking cogitation for carving the law was conspicuous of the fact that there was already a General Law in existence, which does take care of any act of cruelty against the wife by the husband or the in-laws, in the shape of the provisions enshrined in Section 498-A of the Indian Penal Code, 1860 (In Short IPC). The IPC infact contains a whole chapter XX-A dealing with the aspect Of Cruelty by Husband or Relatives of Husband, having been inserted in the year 1983. Still the legislature in its wisdom felt the need for legislating a special law for the purpose of ensuring protection of the women from domestic violence, keeping in the backdrop the factual aspect that the women in the Country were most vulnerable to the acts of violence in the safe havens of their own matrimonial home or shared household.
For understanding the intent of the legislature, one has to go through the statement of objectives and reasons of the Act, which inarguably are the heart and a soul of any enactment.
From the statement of Objectives and reasons, it becomes clear that the legislature while enacting the present Act, did not limit itself to the term “wife”, rather had widened the purview and scope of the legislation which has been specially legislated for the protection to the women at large, by bringing within its ambit not only the married women, but also the women who are in live in relationship and also those women who are sisters, widows, mothers. The legislature in its endeavour has tried to exhaustively plug the lacunae which were left by the various earlier enactments to check the domestic violence against the women and has endeavoured to present a comprehensive legislation which can also be called a complete code in itself.
Reliefs Provided
The Act, though is a comprehensive enactment redressing the Domestic Violence upon the woman, not only by the male members but also the female[1] members of the shared household, still the Act only provides for the civil reliefs to which the woman is entitled to, if she proves before the Court that she is an aggrieved woman[2] in a domestic relationship[3] and has been subjected to domestic violence[4].
The legislature while enacting such a comprehensive enactment for protecting the rights of the women guaranteed under the Constitution, who are victims of violence of any kind within the shared household, does not penalise by way of punishment, any act or omission of an abuser considered to be domestic violence under the act. Rather the act, carefully and exhaustively lays down, the reliefs available to the aggrieved women. All the reliefs provided in the act are civil reliefs, being in nature right from granting the protection order or prohibitive order[5] to the aggrieved person or to grant a safe residence[6] to the aggrieved person, and in addition to said reliefs, the aggrieved person is also entitled to monetary reliefs[7] from the abuser.
The act though does not provide for any penal provisions against the act of domestic violence; thus, it is safe to suggest that the act of domestic violence is not considered as an offence by the act and could be safely said to mean a civil wrong the commission of which invites the civil reliefs. Though the legislature has considered the defiance of any order passed by the Magistrate in the Act to be an offence and provides for a punishment of sentence for a term of imprisonment for one year[8].
Procedure prescribed why of Criminal Procedure Code, 1973.
The aggrieved women in order to get redressed her grievance or for availing any of the reliefs as envisaged under the act has to file an application[9] before the Court of Magistrate. Though by now it is amply clear that the Act only provides remedy to the aggrieved women only under the Civil Law.[10] Also the Act in its objectives and reasons also unequivocally states that the law is proposed to be enacted to provide the remedy under the civil law intended to protect women from domestic violence within family[11]. Still the legislature in its wisdom provided that the procedure to be adopted by the Actwas to be governed by the one prescribed by The Code Of Criminal Procedure, 1973. Although the provisions enshrined in the Act also gives discretion to the Court of the Magistrate to adopt its own procedure[12].
In the first glance it seems that the legislature has erred somewhere while trying to blow hot and cold at the same time, as on one hand the Act provides for the remedies under the civil law only and does not consider the act or omission of the domestic violence as an offence[13], but on the other hand the Act provides that the procedure to be adopted to be the one as provided in the Code of Criminal Procedure and before the Court of the Magistrate[14].
This duality may seem perplexing, but a more closer look into the Act would reveal that the legislature has deliberately tried to stay within the domain of the civil law, while still adhering to the procedure laid down by the Code of Criminal Procedure, 1973, in the few ways as enumerated.
Application NOT Complaint
The Act provides for a procedure to avail the remedies and it provides that the aggrieved woman would move an application before the magistrate. The legislature deliberately used the term application instead of the term complaint[15] as provided in the Code of the Criminal Procedure,1973. The legislature was conspicuous of the fact that the complaint as provided in the Cr.P.C can only be filed against the alleged commission of an offence. Whereas the Act does not define the act of domestic violence as an offence, but only as a civil wrong, which only entails civil remedy.
The legislature in its wisdom does not consider the act of the domestic violence as an offence, because any offence requires a higher burden of proof, whereas the nature of the acts of domestic violence is that majority of it takes places within the four walls of the homes or the bedrooms, therefore it would frustrate the very purpose of the enactment if the act of domestic violence would have been considered as an offence. Apart from that, had it been done, it would have also ran into overlap the existing penal provisions governing the said subject.
Respondent Not Accused
Further, it can be seen that the legislature does not define the abuser as an accused rather it mentions him/ her as a Respondent.[16] The abuser of the act of commission or omission qua the aggrieved woman cannot be considered as an accused, so the rights which the accused is entitled to in the Cr.P.C are also not available to respondent.
Notice not Summons
Once an application is filed before a Magistrate for invoking the provisions of the Act, a notice is issued to the respondent normally as per routine procedure and the same cannot be equated with the issuance of summons[17] or a process as issued by the Magistrate under the Cr.P.C[18], but are issued to give an opportunity of hearing to the respondent side to put forth their stand before any of the relief is granted to the aggrieved woman, thus the act gives due effect to the cardinal principle of the adversarial procedure i.e., “Audi alterum partum”.
One more instance of the Act being a piece of a benevolent legislation is that it focusses more on the efforts of conciliation and counselling, so that the relations of the parties are maintained and if the things stirred could be settled through counselling, then the Act also provides the alternate dispute resolutions options available to the parties for settling their disputes, if the aggrieved woman so desires. Meaning thereby the process/summons issued under the Act could be withdrawn[19] at any stage, if the Court deems it appropriate owing to the results of the counselling or otherwise.
Concluding Remarks.
From the above discussion it is amply clear that the Act provides for the amalgamation of the civil remedies available to the aggrieved women being victim of the act of the domestic violence, at the same time criminalising any act of wilful disobedience to the order of the Magistrate. Considering such an act of wilful defiance as an offence is not a mere formality, rather it exemplifies and demonstrates that the proceedings at the first instance is of civil nature and the reliefs granted are of civil nature, but any disobedience or breach of the orders of the Court would be dealt with severity.
Thus the legislators while drafting the legislation were conscious of the fact that they were dealing with a very delicate issue, which touches the personal lives of both aggrieved person, as well the respondent and therefore they ensured that the Act provided for every chance of conciliation between the parties, if possible, to protect the social fabric of the society. The Act is a complete code in itself and is the most beneficial legislation to check the menace of the acts of domestic violence against a woman and the Act has the capacity to deal with the menace with the soft, yet stern hands, thus ensuring delivery of complete justice to the aggrieved woman, while protecting the most sacred social institution, The Family.
Footnotes
[1] Hiralal P. Harsora vs Kusum Narottam Dass Harsora 2016(4) RCR(Civil) 750.
[2] Section 2(a) Protection of Women from Domestic violence, Act 2005
[3] Section 2(f) -do-
[4] Section 3 -do-
[5] Section 18 -do-
[6] Section 19 -do-
[7] Section 20 -do-
[8] Section 31 -do-
[9] Section 12 Protection of Women from Domestic violence, Act 2005
[10] Indra Verma vs V.K.V Sarma 2013 (15) SCC 755
[11] Statement of Objectives and Reasons of the Act.
[12] Section 28 Protection of Women from Domestic violence, Act 2005
[13] Section 2(n) Cr.P.C
[14] Section 3(1)(a)(i) Cr.P.C
[15] Section 2(d) Cr.P.C
[16] Section 3 Protection of Women from Domestic violence, Act 2005
[17] Anjana@ Savita & Ors vs Reena Rani 2020(3) R.C.R(Criminal) 858
[18] Section 204 Cr.P.C
[19] Dr.P.Pathmanathan and others vs Tmt.V.Monica and others 2021(1) crimes 281
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