Domestic violence is sadly a reality in Indian society, a truism.

In the Indian patriarchal setup, it became an acceptable practice to abuse women. There may be many reasons for the occurrence of domestic violence. From a feminist standpoint, it could be said that the occurrence of domestic violence against women arises out of the patriarchal setup, the stereotyping of gender roles and the distribution of power, real or perceived, in society. Following such ideology, men are believed to be stronger than women and more powerful. They control women and their lives and as a result of this power play, they may hurt women with impunity. The role of the woman is to accept her ‘fate’ and the violence employed against her meekly. For long, the fairer sex has suffered at the hands of men, the exploitation ranges from physical to intangible abuse like mental and psychological torture. Women have been treated as child bearing machines, and if I may, then preferably male child bearing machines, push-over, to nothing but animals at the hands of men. Domestic violence is one of the gravest and the most pervasive human rights violation. For too long now, women have accepted it as their destiny or have just acquiescence their right to raise their voice, perhaps, because of the justice system or the lack of it or because they are vulnerable, scared of being ostracized by their own because domestic violence still remains a taboo for most women who suffer from it or for other reasons best known to them. But not any more! Women gear uptake control because of the domestic violence act, 2005.

The Protection of Women from Domestic Violence Act (or the Domestic Violence Act) is a laudable piece of legislation that was enacted in 2005 to tackle this problem. The Act in theory goes a long way towards protection of women in the domestic setup. It is the first substantial step in the direction of vanquishing the questionable public/private distinction traditionally maintained in the law, which has been challenged by feminists time and again. Admittedly, women could earlier approach the Courts under the Indian Penal Code (IPC) in cases of domestic violence. However, the kinds of domestic violence contemplated by this Act, and the victims recognised by it, make it more expansive in scope than the IPC. The IPC never used the term domestic violence to refer to this objectionable practice. In fact, the only similar class of offences addressed by the IPC

dealt with cruelty to married women. All other instances of domestic violence within the household had to be dealt with under the offences that the respective acts of violence constituted under the IPC without any regard to the gender of the victim. This posed a problem especially where the victims were children or women who were dependant on the assailant. In fact, even where the victim was the wife of the assailant and could approach the Courts under S.498A of the IPC, she would presumably have to move out of her matrimonial home to ensure her safety or face further violence as retaliation. There was no measure in place to allow her to

Important Provisions The Act. A woman who is the victim of domestic violence will have the right to the services of the police. including sisters and mothers thus the Act includes relations of consanguinity. or joint family thus. cannot be harassed for doing so. whether physical. shelter homes and medical establishments.3 of the Act. Thus. sexual. in a bold break from prior legislations. harassment for dowry. a husband cannot take away her jewellery or money. or through relationships in the nature of marriage. verbal. In fact the Act has given a new dimension to the word abuse because unlike the primitive notion abuse includes actual abuse or threat of abuse. a term hitherto not even used in legal parlance. he cannot during the pending disposal of the case prohibit/restrict the wife's continued access to resources/ facilities to which she is entitled by virtue of the domestic relationship. mental. This piece of legislation. verbal. She also has the right to simultaneously file her own complaint under Section 498A of the Indian Penal Code. under the new law. emotional. Domestic violence is defined in a comprehensive way in S. acts of threatening to abuse the victim or any other person related to her. gives a very expansive definition to the term “domestic violence”. sexual and economic abuse. The Act is an extremely progressive one not only because it recognizes women who are in a live in relationship but also extends protection to other women in the household. together with many other problems faced by women in the household. economic and harassment by way of dowry demands and thus. prompted this enactment.continue staying in her matrimonial home and yet raise her voice against the violence perpetrated against her. including access to the shared household. if a husband is accused of any of the above forms of violence. The law will cover those women who are or have been in a relationship where both parties have lived together in a shared household. who takes recourse to the law. In short. This. It is a comprehensive law and addresses all issues related to women. marriage. and are related by marriage or . It is for the first time that an act has been made to address women's issues in such detail. This commentary focuses on the constitutional perspectives of this progressive legislation. or throw her out of the house while they are having a dispute. in my view has been long over due. comprising physical. 'domestic relationships' are not restricted to the marital context alone. adoption. An important addition to the law ensures that an aggrieved wife.

Sexual Violence will include: Forced sexual encounter. the Act also covers sexual violence like forced intercourse. One of the most important features of the Act is that it also provides a woman a right to reside in the matrimonial and shared household. Forcing a woman to look at pornography or any obscene pictures. Insults for not bringing dowry.adoption. Thus. medicines. Economic Violence is: Not providing money. hitting. In addition to physical violence of beating. though excluded under the IPC. This certainly proves that the new Act has been formed keeping the current relationship culture in India and the irregularities in the previous Domestic Violence Laws in mind. limb. can now be legally recognized as a form of abuse under the definition of sexual abuse in this Act. Preventing one's wife from taking up a job or forcing her to leave job are also under the purview of the Act. harm. forcing a woman to vacate her house. A threat of bodily harm. Any form of threat or insults for not producing a male child. The Act thus deals with forms of abuse that were either not addressed earlier. or danger to life. slapping and hitting.000 and all crimes in the Domestic Violence Act are non-bailable. kicking and pushing. Husbands or live-in partners who would be guilty of domestic violence can be put behind bars for a year and fined Rs 20. The definition also encompasses claims for compensation . Under the law. slapping. The Act has also defined Physical Violence very comprehensively. Not paying rent. forcing his wife or mate to look at pornography or any other obscene pictures or material and child sexual abuse. But violence against women is not always physical. physical violence is defined as any act or conduct which is of such a nature as to cause bodily pain. food. The Act defines Verbal Violence as: Name calling. The new law is also tough on men who subject women to name calling or verbal abuse. Any act of sexual nature to abuse. Beating. Preventing a woman from marrying a person of her choice. or an act that impairs the health or development of the person aggrieved. Any kind of accusation on a woman's character or conduct. criminal intimidation and criminal force. whether or not she has any title in the household. causing hindrance to employment opportunities. clothes. the law has expanded the definition to include sexual. or that includes assault. The new law also addresses sexual abuse of children and forcing girls to marry against their wishes. Under the Act. or health. or that were addressed in ways not as broad as done here. humiliate or degrade a woman's' integrity. verbal and economic violence. it includes in its ambit sexual abuse like marital rape which. For the first time. For instance. observers say it can damage a woman's self-esteem. as: Any kind of bodily harm or injury. While Verbal Violence is often trivialized as unimportant. Another significant step has been to recognize Economic Violence.

harm. The right to life has been held to include the following rights (which are reflected in the Act). any act which damages or injures or interferes with the use of any limb or faculty of a person.125 of the Code of Criminal Procedure (CrPC). or impair the health or development of the aggrieved person . The right to be free of violence: In Francis Coralie Mullin v.arising out of domestic violence and includes maintenance similar to that provided for under S. limb or health. Article 21 confers the right to life and liberty in negative terms. 1992. the Act also includes similar acts of physical violence and certain acts of physical violence as envisaged in the Indian Penal Code within the definition of domestic violence. Physical abuse is said to consist of acts or conduct of such nature that they cause bodily pain.This right is incorporated in the Act through the definition of physical abuse. stating that it may not be taken away except by procedure established by law. the Act identifies emotional abuse as a form of domestic violence. The Act encompasses all the provisions of the Specific Recommendations which form a part of General Recommendation no. It is noteworthy that the maintenance available under this section must be in correspondence with the lifestyle of the aggrieved party. Constitutional Perspective The enactment in question was passed by the Parliament with recourse to Article 253 of the Constitution. which constitutes domestic violence (and is hence punishable under the Act). to be fair. 15 and 21. . The Domestic Violence Act was passed in furtherance of the recommendations of the United Nations Committee on the CEDAW. just and reasonable. Nevertheless. would be within the inhibition of Article 21. conventions. Apart from this.19. etc. including insults on account of the victim’s not having any children or male children. Administrator. among others: 1. Lastly. and the Supreme Court stated. as a result of judicial decisions. This provision confers on the Parliament the power to make laws in pursuance of international treaties. Union Territory Delhi. either permanently or even temporarily. which is required. the claim for compensation is not limited to maintenance as allowed by that provision. the Act protects the right of women against violence. Protection of Women and Fundamental Rights The Statement of Objects and Reasons declares that the Act was being passed keeping in view the fundamental rights guaranteed under Articles 14. or danger to life. By adoption of such an expansive definition.

The right to shelter: In Chameli Singh v. respectively. Ss. The right to dignity: In Ahmedabad Municipal Corporation v. State of Tamil Nadu . Article 14 prohibits class legislation . At the same time. on request by such party or otherwise. Under S. Where a law effects a classification and is challenged as being violative of this Article. A law does not become unconstitutional simply because it applies to one set of persons and not another.6. It affirms equality before the law and the equal protection of the laws. As a result of the ruling in cases such as Royappa v. 3. it preserves the State’s power to legislate for a specific category of people. any law that is arbitrary is considered violative of Article 14 as well. though the definition would not be limited to it. The recognition of sexual abuse of the wife by the husband as a form of violation to the person is creditable. it is a duty of the Protection Officer to provide the aggrieved party accommodation where the party has no place of accommodation. These acts would fall within the confines of domestic violence as envisaged by the Act. There must be a rational nexus between this differentia and the object sought to be achieved by the law. basing its opinion on a host of cases that had been decided in favour of this proposition. The right to dignity would include the right against being subjected to humiliating sexual acts. Under S. . This provision is significant in putting a stop to arbitrariness in the exercise of State power and also in ensuring that no citizen is subjected to any discrimination.17.2. distinguishing the matter at hand from Gauri Shankar v. These provisions thereby enable women to use the various protections given to them without any fear of being left homeless. the party’s right to continue staying in the shared household is protected. The classification must be based on some intelligible differentia.2. but permits classification for legislative purposes. . Union of India where the question had related to eviction of a tenant under a statute. A praiseworthy aspect of the legislation is the very conception of emotional abuse as a form of domestic violence. Article 14 contains the equal protection clause. 6 and 17 of the Domestic Violence Act reinforce this right. the law may be declared valid if it satisfies the following two conditions: 1. the Supreme Court emphasised the fact that the right to life included in its ambit the right to live with human dignity. Nawab Khan Gulab Khan . It would also include the right against being insulted. State of U.P. especially as such sexual abuse is not recognised by the IPC as an offence. These two facets of the right to life find mention under the definitions of sexual abuse and emotional abuse. it was held that the right to life would include the right to shelter.

protecting only women from domestic violence. Frowning upon this observation the Supreme Court stated. it would help to recollect that this provision creates an exception in favour of women and children. Further. it is also essential to keep in mind Article 15(3) which empowers the State to make legislations like this for the benefit of women. the Act is far from arbitrary. namely. In applying the personal laws of the .. race. The Domestic Violence Act promotes the rights of women guaranteed under Articles 14 and 15. Indeed. and not men. While saying that the Act is protected by Article 15(3) from being considered discriminatory. Whether or not the act will be mis-used or not only time will tell for there cannot be any perceptible change in women's status overnight. etc. It indeed effects a classification between women and men. the learned judge failed to appreciate that part III of the Constitution does not touch upon the personal laws of the parties. it would seem logical to do so. “In our opinion. caste. At this stage. It needs to be seen whether the practicality of the Act has been ensured by the legislature and also the responsibility of implementation lies in the hands of the executive which will be the actual scale for measuring the effectiveness of this Act. sex. and thus could be made use of to justify the extension of the Act to male children as well. or a shoe that you can wear anytime and throw anytime but at least some women would benefit which would set a precedent for others. It is to be remembered that it is generally women who are the victims of domestic violence. gender. including women and children. and also has a rational nexus with the object of the Act. but this classification is founded on an intelligible differential. opined that it is too early to predict the usefulness of this legislations to its target beneficiaries and the society as a whole. It will take at least a decade before things change This bill will provide them a safeguard and a sort of sword in their hand so that they will not be seen as an animal. in that it is a well-thought and necessary attempt to curtail domestic violence and eventually vanquish it. It is. Domestic violence is one among several factors that hinder women in their progress. however. thus creating an exception in their favour against the operation of Article 15(1). and this Act seeks to protect them from this evil. It would be violative of the equality clause as also it would be discrimination on the basis of caste.Article 15 disallows discrimination on the grounds of religion. but permits the State to make special provisions for certain classes of persons.

Certain provisions of Chotanagpur Tenancy Act.. 1908 were challenged as being discriminatory towards women. except where such law is altered by any usage or custom or abrogated by statute. The challenge was rebuffed by holding that women did require special protection. i. It was in this context that the Supreme Court observed that in a pluralistic society like ours making uniform laws cutting across religions could only be achieved in a phased manner and it was inappropriate to think "all laws have to be made uniformly applicable to all people in one go." Reynold Rajamani v. Charitable Hindu Religious and Endowments Act.P. on the other hand. in the following decisions the Supreme Court has tested aspects of personal laws on the touchstone of fundamental rights. It was also argued in that Petition that divorce by mutual consent should be available even under the Indian Divorce Act. as interpreted in the judgments of various High Courts. the Court went into the Constitutionality of the law and read down the provisions so as . It was in this context that the Supreme Court observed that adding provisions to a Statute was a legislative act. What is significant about this judgment is that the Supreme Court did test the validity of some sections of the Indian Divorce Act (a personal law for Christians) on the touch stone of fundamental rights but on merits found the challenge to be unsustainable. Smritis and commentaries referred to. ". Union of India (1994 5 SCC 704).P.under the circumstances it is not desirable to declare the customs of tribal inhabitants as offending Articles 14." Anil Kumar Mhasi v. he (the High Court judge) could not introduce his own concepts of modern times but should have enforced the law as derived from recognized and authoritative sources of Hindu laws. State of Bihar (1996 5 SCC 125)."In this case. additional grounds given to a woman for claiming divorce under the Indian Divorce Act were challenged as being discriminatory towards men. Madhu Kishwar V. 1987 and the argument was that laws should be made which are uniformly applicable to all religious or charitable endowments run by persons professing all religions. In this case.parties. The Contrary View. This case dealt with validity of provisions of A.e.The excerpts of this judgment on which reliance was placed upon by the Supreme Court in the AWAG case pertain to prayers by the parties to increase the grounds available for divorce under the Indian Divorce Act. The case did not deal with challenge to personal laws as being discriminatory to women. Pannalal Pitti v. (1996 2 SCC 498). Union of India (1982 2 SCC 474). 15 and 21 of the Constitution and each case must be examined when full facts are placed before the court. State of A. While Court in this case refused to declare tribal customs en masse offending fundamental rights it kept the doors of such challenge open by holding. The approach of the Supreme Court is clearly wrong and flies in the face of the Constitution.

18(c). Failure of the Act : The Act could play a stellar role in protection of women’s rights in the household and in guarding them from domestic violence. Is that the correct way of understanding the section and does the word 'after' in the section only mean 'after the lifetime'? If this question is answered in the affirmative. The Court observed in Para 9. one of the basic principles of our Constitution. Though there are interpretations to the contrary. the decision is not very satisfactory as the Constitutional mandate required the Supreme Court to hold that irrespective of whether the father was unfit or not the mother should also be given equal rights as a natural guardian. the definition of domestic violence itself refers at all stages only to an aggrieved person and not to a child. Instead it read down S. bring them in line with womens' right to livelihood under Article 21 of the Constitution. Githa Hariharan v. "Similarly S.6 so as to bring it in consonance with Articles 14 and 15. However. is necessary and indeed. as the father is the natural guardian of a minor and not the mother. a recognition of domestic violence as something unacceptable." Of course.e. It is the opinion of the . one thing that the writers feel is amiss in the Act is the fact that it brushes aside male children. Firstly. the section has to be struck down as unconstitutional as it undoubtedly violates gender equality. the next step taken is providing innovative and efficacious remedies to enforce the same. While the Act does define a child as any person below the age of eighteen years. The Court did not reject the Petition on the ground that it could not go into Constitutional validity of personal law. where it has become yet another social practice. Having recognised the rights of women and the violation of these rights. 19(b) of the Guardians and Wards Act would also have to be construed in the same manner in which we have construed Section 6(a) The Hindu Maintenance and Guardianship Act . 6 of the Hindu Minority and Guardianship Act. six years after the Constitution. the only relevant place in which a child is mentioned is S. commendable in a patriarchal society. Reserve Bank of India (1999 2 SCC 228) a three judge Bench of the Supreme Court was considering the Constitutional validity of S. an aggrieved person as defined by the Act is a woman who is. The Hindu Maintenance and Guardianship Act came into force in 1956. it is the opinion of the writers that the Act does not extend its protection to male children. The challenge was on the basis that the section discriminates against women. or has been in a domestic relationship with the respondent. where it is stated that a Magistrate may pass a protection order restraining the respondent from entering the school of the child where the aggrieved person is a child. In the very first instance. The conceptualization of the Act thus far is admirable.

Arguably. though predominantly faced by women. that the offence of rape as addressed in the IPC be defined in gender-neutral terms.writers that this in itself is not sufficient to construe the Act as applicable to male children as well. it is a fact that the sexual abuse of male children cannot be redressed in any apposite manner by it. it could be said that the Act was passed to cater to the needs of women and not boys. blot out the immense benefit the Act could be of to women. on final analysis. Conclusion The Act. mothers. is a valuable piece of legislation. Even if other forms of violence could be adequately addressed by the IPC (though this hardly seems the case). sisters or daughters. where it was argued. and the subsequent 172nd Law Commission report. male and female. is also aimed against male children at times. Once it is acceded that male children are affected as much by sexual abuse by female children. It also does take up for consideration child sexual abuse. On the face of it. Article 6 (1) obligates the State to observance of all human rights and fundamental freedoms for all without any . it must be kept in mind that domestic violence. be they wives. it must be accepted that they need to be protected from such abuse within the “private” sphere too. and recommend such an extension. among other things. as many a time wrongs are perpetrated using the protection afforded by personal laws. "Article 1. It seems a poor excuse to say that male children should not be provided easily accessible relief from domestic violence simply because of their gender. Its shortcomings do not. there seems to be no concrete reason for denying male children protection from domestic violence. though in a limited sense (male children being excluded from its purview). This was necessary keeping in mind the increased and increasing instances of sexual abuse of children. It is thus secular in outlook in protecting women’s rights. social. After all. and enjoy economic. Further consider it desirable to extend the Act and allow its application to male children who are also affected by domestic violence. so that the protection could be extended to male children as well. A good thing about the Act is the fact that it deals with domestic violence regardless of the religion of the parties. the very title of the Act indicates that it has been enacted to protect the rights of women. considering the nature of the practice. by and large. (1) assures right to development an inalienable human right. Yet. Reference may be had to the Sakshi case . cultural and political development in which all human rights and fundamental freedoms can be fully realized. by virtue of which every person and all people are entitled to participate in contribute to. at a time when the practice has become rampant.

language or religion. Article 8 casts duty on the State to undertake.article (2) rejoins that . economic. equal attention and urgent consideration should be Sub-Article (2) enjoins that . political. socially and economically. resulting from failure to observe civil and political rights as well as economic. The full development of personality and fundamental freedoms and equal participation by women in political. promotion and protection of civil. All forms of discrimination on grounds of gender are violative of fundamental freedoms and human rights. social and family stability and growth culturally. therefore.discrimination as to race.. Sub.. inalienable. social. economic and cultural life are concomitants for national development.... inter alia. integral and indivisible part of universal human rights. equality of opportunity for all in their access to basis resources ..“State should take steps to eliminate obstacle to development. .necessary measures for the realization of right to development and ensure. equal attention and urgent consideration should be given to implement. social and economic rights. and distribution of income.. sex.. "The human rights for women. Sub-article (3) thereof enjoins that: . including girl child are. social and political rights.

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