Legal

An Overview on Domestic Violence Act

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This Blog is written by Khushi Gupta from Vivekananda Institute of Professional Studies, New Delhi. Edited by Prakriti Dadsena.

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INTRODUCTION

Domestic violence is an evil that rules our society and has severe repercussions on women. It is not hidden from anyone that patriarchy is the root cause of many barbaric acts against women, and this is one of them. A system that preys on the weak and grows on their oppression is prevalent in not just our society but most of the world. Women have time and again fought for fundamental rights and necessities like the right to life, seemingly easy to men. They are worldwide victims of the great majority of domestic violence perpetrated by men. It is not a random act of violence but rather a result and cause of gender inequality, as well as a relation to discrimination and devaluation of women. Gender-biased laws came into existence upon seeing the social inequality and the vast differences between them. Law took cognizance of this and realized the need for gender-specific laws essential for the upliftment and inclusion of women in society. They are included with the backward and oppressed classes, and when the only difference is their sex, it is crucial to consider the necessity of such laws. These laws are there to grow one section of our society and not curb the prospects of the opposite sex. The goal of such legislation is to protect women from systematic abuse, cruelty, and injustice, which they are frequently subjected to, as well as to punish the perpetrator.

The Protection of Women from Domestic Violence Act, 2005 was formulated to protect women against domestic abuse at the hands of men. This act was pioneer legislation that ensured protection, benefits and compensation to the aggrieved person. The DV Act came as a solution for the battered women by securing them with various orders like protection, resistance, custody and monetary order. The striking feature of this act was the exhaustive definition of domestic violence which left no scope of interpretation or vagary at the hands of the judiciary. Abuse according to the act included physical abuse, verbal and emotional abuse, sexual abuse, economic abuse. An integral part of the act is criminalizing the breach of protection order, thus making it a cognizable and non-bailable crime mentioned in Section 31 of the DV Act.

On October 6, in the judgment of Hiral P. Harsora and Ors v. Kusum Narottamdas Harsora and Ors [1], the Supreme Court of India changed the definition of how respondents were to be defined in the DV Act. The act being gender-specific, restricted the respondents to “adult male” under Section 2(q), but the court deleted the words to include women and minors. The court justified by saying that “it is clear that such violence is gender-neutral. It is also clear that physical abuse, verbal abuse, emotional abuse, and economic abuse can all be by women against other women. Even sexual abuse may, in a given fact circumstance, be by one woman on another. Section 3, therefore… seeks to outlaw domestic violence of any kind against a woman and is gender-neutral”

It was believed that due to the neutrality of the crime, limiting the definition of respondents to “adult male” violated the Right to Equality under the Indian Constitution. The court took help from the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, which has no restriction on the respondent being only a male.

SIGNIFICANCE OF THE JUDGEMENT

With the removal of the words “adult male”, the scope of what constitutes respondents has widened and now includes women as well as minors. The court found the words “adult male person” contradictory to women who have suffered from domestic violence of any kind. The act, initially being gender-specific, was converted to pave a path for a seemingly inclusive law with hopes to make it gender-neutral.

IMPACT

The court envisioned the act to be gender neutral to promote inclusivity and equality but did not keep the nature of the crime in mind, which is not gender-biased. Domestic violence has been and is primarily malefactor by men. While drafting the PWDVA, the nature of the abuse was heavily discussed and finally was drafted by restricting respondents to men only. Since then, there has been no progress on the issue. The National Crime Records Bureau 2019 reports that a majority (30.9%) of all 4.05 lakh cases under crimes against women are registered under Section 498A of the IPC, which deals with ‘cruelty by husband or his relatives. It is imperative to take the rise of domestic violence during Covid – 19 in India. National Commission for Women’s (NCW) date showed double the number of complaints against men when the lockdown was imposed. There were approximately 25 calls every day at various states in domestic violence complaints. At the time when the whole nation gripped for their lives in fear, women were crippled under the abuse of men and became an instrument for them to release their pent-up frustrations. It is evident that the nature of domestic violence is not neutral but is mainly against women. The judgment relies on the Sexual Harassment Act but fails to realize that in a household, the authority position to abuse power is only with males, unlike at workplaces where at times women also hold authority and high-status positions.

The Supreme Court was of the view that with these words in the act, it was a violation of the Right to Equality. Our Constitution interprets equality as “equality among equals”, but in no sphere of the society are women equal footing with men. Customs that feed misogyny are the essence of some laws, which goes to show how neonate legislation cannot give them a higher status. Gender-biased laws aim to boost the status and give strength to women to fight back the injustice faced by them. They in no way are means to exploit the other sex. Societal view has always held men as superior and women under them. Men are treated with respect and dignity, while a woman has to fight for this and is treated as a reproduction machine. If gender-biased laws are enacted which make sure that there is no interference and hindrance by men in economic, political opportunities and gives an opportunity to women to pay their dues, then the existence and validity of these laws should not be questioned and arraigned as discriminatory.

The Supreme Court vacillated in their judgment by not taking Article 15(3). This article of the Constitution mandates that special provisions can be made for women and children and are not considered discriminatory prima facie. At times the supremacy of Article 15(3) was recognized by the courts over Article 14 and Article 15(1), validating the legislation in cases such as Yousuf Abdul Aziz v. the State of Bombay [2] And Government of Andhra Pradesh v. P.B Vijaykumar [3]. Many special laws for women have helped them live a better life at the same not considered as discriminatory. These laws, namely, Hindu Succession Act 1956, Equal Remuneration Act 1986, Indecent Representation of Women (Prohibition) Act 1986, Pre-Natal Diagnostic Techniques (Regulation and Prevention of Misuse) Act, 1994, all ensure rights to women in property matters, equal pay for equal work, prohibition of female foeticide, and effective implementation of their Fundamental Rights.

The inclusion of women and children in the definition of respondents can be misused by the family members as a defense. Chances of in-laws of a woman abusing the law have increased. Even though it is necessary to recognize violence against the parents of a husband, there are other provisions that ensure their safety. Many domestic violence cases go unreported, and with this change for gender neutrality, it will be even more difficult for actual victims to open up in fear of retaliation by the husband’s family members. Due to this change, the scope for males as plaintiffs filing complain against women for domestic violence has increased. Not to say that violence against men is not real, but given the statistics and the history, bringing up male violence at the time of discussing violence against women is regressive. Domestic violence is, in many ways, abuse of power at the hands of men, and if the act were to change, then it is affirmed that abuse of act will also take place. Solving cases and giving justice to real victims will now prove to be a task as it will be a tussle between the victim and the family.

ANALYSIS

The change from gender-specific laws to gender-neutral laws is detrimental for women. Talking about gender neutrality when it is not in favor of women is more prevalent than at times when it is actually needed. There need to be laws that guarantee and safeguard the dignity, respect, and life of women, which is only possible by making special legislation for them. Recognition of men’s violence and abuse should not take precedent over issues of women that are not even considered and seem unending. The law will face various inevitable challenges. Protection of people suffering at the hands of their daughter-in-law has provisions like Maintenance and Welfare of Parents and Senior Citizen’s Act 2007, the Hindu Adoption and Maintenance Act 1956, and therefore need not be included in the DV Act. As the matter of crimes against men is concerned, it is first important that society recognizes and accepts it, as there is stigma around men being weak and fragile, before turning to the legislation. If all gender-biased laws are coupled with effective executive machinery with detailed punishments for misuse of the act, then fake cases against men can also be controlled.

CONCLUSION

The change from gender-specific to gender-neutral domestic abuse laws is retrograde because it ignores the need for special safeguards that recognize that women are disproportionately affected by violence. We still have a tremendous obligation to educate a vast segment of society that is still unaware of the threat it poses. Gender-biased legislation is important and must be kept until the transition to a more equal society is completed as they serve both a shield and a weapon; it is ethically and socially unacceptable to strike them down. Let us first pass legislation to empower women who are victims of male violence before moving on to the more complex work of tackling intra-gender violence, which will necessitate a more evolved and empowered society as well as a fairer and non-adversarial judicial system.