PWDVA LAW (COMMENTS / VIEWS ON SECTIONS OF THE ACT) AS INTERPRETED BY SELF PART - I:-
Statement of Objects and reasons:-
(A) The Statements of Objects and Reasons envisages
that domestic violence is a human rights issue which
means the issue is common to both men and women.
In view of clause 4(i) of the statement of objects and
reasons, the husband's family members, even the
mother and sister or any other woman relative of the
husband are totally deprived of their rights to be an
applicant, thus paving way for discrimination amongst
women themselves. This is not an intelligible
differentia which Art 14 of the Constitution permits.
Hence, the provision is unconstitutional and ultravires.
The phrase "Equality before the law" is negative
concept, which gives the meaning the absence of any
special privilege in favour of any individual. The phrase
"Equal protection of the laws" is a positive concept,
which gives the meaning the equality of treatment in
equal circumstances. "Equality before law" is based on
Dicey's concept of "The Rule of Law". No man is
above the law of the land. There is no distinction
before law. Article 14 is a basic feature of the
Constitution which cannot be destroyed even by the
amendment under Article 368. Hence, denial of
opportunity in making a complaint by the husband
and his relatives go in contrary to Article 14. Apart
from this, the said clause 4(i) of the Statement of
Objects and reasons run contrary to that of the clause
3 of the statement of objects and reasons which
observes that enactment of a law is proposed keeping
in view the rights guaranteed under Articles 14, 15,
21 of the Constitution of India.
Mr. Justice Bhagwati of the Supreme Court in
Maneka Gandhi vs
case) held :
" … Equality is a dynamic concept with many
aspects and dimensions and it cannot be
imprisoned within traditional and doctrinaire
limits. Article 14 strikes at arbitrariness in
State action and ensures fairness and equality
of treatment. The principle of reasonableness,
which legally as well as philosophically, is an
essential element of equality or non-
arbitrariness, pervades Article 14 like a brooding
omnipresence."
In T. Devadasan vs Union of India [AIR 1964 SC
179], the Supreme Court observed that while the
aim of Article 14 is to ensure that invidious
distinction or arbitrary discrimination shall not be
made by the State between a citizen and a citizen
who answer the same descripttion and the differences
which may obtain between them are of no relevance
for the purposes of applying a particular law
reasonable classification is permissible. It does not
mean anything more.".
Even in medical parlance, a male child begets the Y chromosome from the father and the X chromosome from the mother. A girl child begets the X chromosome from the father and another X chromosome from the mother. Hence it is the philosophy of life that both male and female characteristics are inherited from both father and the mother equally. It is the ARDHANAREESWARA concept, which is not a fiction but a scientific fact proved beyond doubt. Hence from medical point of view also, man and women are at par. The plight of ostracizing the father or the mother from custodial rights is unethical, immoral against dharma and also UNCONSTITUTIONAL. Men and women should enjoy equal status before the law as there can be no distinction between two citizens.
The mythological story of Bhasmasura, if happens to the framers of the DV Act, then the legislature will definitely bring necessary amendments. That is the provisions of the Act should be invoked by the daughter-in-law of the framers of DV Act, then they will necessarily bring amendments. This enactment is nothing but the CHAKRAVYUHAM in Mahabaharatha. Any man going in to the marriage, entangles under the Act, only the Courts could find a way out for coming out of the VYUHAM similar to Lord Krishna who was the only person who knew the way to come out of the CHAKRAVYUHAM.
It is a settled law that the accused is presumed innocent unless and until proven guilty. But in the said Act,2005 the benefit of doubt goes to the blamer instead of the accused as seen in the decision in Shobha Rani v. Madhukar Reddy – 1988 (1) SCC. 105. But, in the same case, the Supreme Court has observed that
"In matrimonial duties and responsibilities
in particular, we find a sea change. They
are of varying degrees from house to
house or person to person. Therefore when
a spouse makes complaint about the
treatment of cruelty by the partner in life or
relations, the Court should not search for
standard in life. A set of facts stigmatized as
cruelty in one case may not be so in another
case. The cruelty alleged may largely depend
upon the type of the parties are accustomed to
or their economic and social conditions. It may
also depend upon their culture and human
values to which they attach importance. We,
the judges and lawyers, therefore, should not
import our own notions of life."
It was also observed in the said case that
"The wife must extend all help to husband and
so too the husband to wife. They are partners
in life. They must equally share happiness and
sorrow. They must help each other. One cannot
take pleasure at the cost of the other."
It was also held that the cruelty alleged may largely
depend upon the type of life of the parties are
accustomed to or their economic and social
conditions and their culture and human values to
which they attach importance. Therefore Courts
should not import its own notions of life, nor should
it depend much upon the precedents. Each case may
be different from the other.
Benefit of doubt is a salutary principle of criminal law
so that no innocent person is punished. But that
doubt must be reasonable and one calculates to
further justice and not to frustrate it. Doubts which
are real, genuine, well founded which a normal man
with a normal intelligence in a given circumstance
would naturally harbour are doubts that come within
the fold of "reasonable doubt" entitling one to the
benefit thereof. State of Orissa vs Lal Chatrapati
1976 Cri LJ 1342(Orissa_DB): 42 cut LT 419
:1976 cut LR(Cr) 100 [Taken from CRIMINAL
TRIAL by Y.R.Rao and Y.C.Rao 4th edition
@p26].
If two parallel versions are put forth by the two parties and both of them are equally probable, in such a case, the accused is to be given benefit of doubt.
Prahlad vs State of
Hence, the Courts must try to understand the value systems of the wife and husband then search for the nugget of truth in the entire evidence. The discriminatory treatment given to the husband and his relatives, and legal privileges which are doled out to the wife and her relatives is based on the grounds of s*x. This type of unwanted discrimination is prohibited by Art. 15 (1) of the Constitution of
(B) Section 1:-
Section 1 of the Domestic Violence Act, 2005, states that this Act may be called the Protection of Women from Domestic Violence Act, 2005. Where the Act was framed in accordance with the Convention on Elimination on Discrimination Against Women, 1979 where the term `discrimination against women' has been defined. It shall mean any distinction, exclusion or restriction made on the basis of s*x (Art. 1). Where freedom of speech includes even freedom of silence according to the judgement of the Supreme Court in the famous National Anthem case [1986 (3) SCC 615]. Hence, the discrimination against women also includes discrimination against men. The contention strives to arrive only at equality of both s*xes in all matters, and not on the idea of the inferiority or the superiority of either of the s*xes.
Hence, domestic violence is common to both s*xes. It is not only the woman who is affected by violence. Men, too in many cases are victims. There is no provision in the present Act to protect men. Protection of women does not mean not to protect men. Protection of women should not be at the sacrifice of protection of men.
(C) Section 2:-
In the Section 2 (a) `aggrieved person' is defined. The aggrieved person, here has to be only a woman. This by itself is explicit that the provisions of the Act are biased and in favour of a particular gender which is unconstitutional and ultra vires. All men need not be painted with the same brush. According to Indian law, thousand criminals can go scot-free, but one innocent should not be punished. But here, the real object of the Act and the intent of the Legislature run parallel to the provisions of the Act.
Sec. 2 (f) - Domestic relationship – This Section can be interpreted that a male who has parted his wife with compensation is also covered under the Act. This implies that even after paying huge amount of maintenance / alimony still this provision of the Act can be used as a tool to extort money from him.
Much to revision petitioner dismay the recent case of Aruna Pramod Shah vs Union of India, reported in Law Reports on Crimes Vol II 2008, the Delhi High Court has observed that
" Equal treatment to both wife and mistress
does not, in any manner, derogate from the
sanctity of marriage, since an assumption
can fairly be drawn that a live-in
relationship is invariably initiated and
perpetuated by the male.".
The law not only protects a man's wife, but also his `mistress' or a live-in-partner. On the other hand, when a law is so powerful in protecting the mistress, giving the status of a wife, it is unfair on the part of the legislators to neglect the protection for a man's mother, sister, and other female members.
Section 2(g) "domestic violence" has the same meaning as assigned to it in section 3;
Where the domestic violence includes all physical abuses such as assault, criminal intimidation and criminal force which are already included in IPC, it amounts to criminal offence. But the statute is silent as to the nature of offence but has criminal proceedings for the same. For a single offence, it is not justified to proceed under two proceedings. Hence, the definition clause of domestic violence should include it as a "criminal offence" only then it is justified to have criminal proceedings. A "Criminal Offence" is common for both male and female.
Section 159 IPC defines affray. If a husband and wife cause affray, the remedy is under Domestic Violence Act for woman. But for a man there could be no remedy. The legislators wanted to exclude women from the punishments for these offences and hence framed the DV Act by simply victimizing men by specifically stating `partner/wife' as aggrieved person.
Sec. 2 (q) “respondent”
It gives room to an inference that a female could have a male partner living together without a formal marriage which also means an extra marital relationship which is repugnant to our age old Indian culture as it can be interpreted as an act of adultery.
Section 2(s):- "Shared Household"
It was observed by the Supreme Court in S.R.Batra and another vs Taruna Batra(Mrs) [ 2007 (3) SCC 169] that it is not possible to accept the contention that the definition of "shared household" in Section 2(s) includes a household where the person aggrieved lives or at any stage lived in a domestic relationship and that since admittedly the respondent had lived in the property in question in the past, hence the said property is her shared household. If this submission is accepted, then it will mean that wherever the husband and wife lived together in the past, that property becomes a shared household. Such a view would lead to chaos and would be absurd. It is well settled that any interpretation which leads to absurdity should not be accepted.
Though the drafting of the statute conveys a different meaning, the Supreme Court has pointed that a sensible interpretation has to be given to it.
(D) Section 3:- Definition of domestic violence:
The broad and wide definition and interpretation of verbal, emotional, s*xual and economic abuse, needs to be amended to avoid all normal day to day scenarios, as otherwise it allows false cases to be put under the guise of these definition of abuses, and any normal families day to day actions can be analyzed, interpreted and projected as having different shades and variety of abuses.
Verbal – It is pertinent to quote Former Attorney General Sole Sorabjee statements reported on "
"In principle there is no objection to including verbal abuse in the definition of domestic violence. The problem lies in the wide definition of verbal abuse which includes "name calling and insults". Name calling in every case cannot be equated with verbal abuse. Have we not called our friends, male or female, 'shorty' or `fatty' or 'snooty' or 's*xy' and referred to them as such in conversation? An average person of ordinary sensibilities would not consider these nicknames as insults or verbal abuse. We must be guided by the standards of rational human beings. If a female consumed by intense curiosity tirelessly questions her husband or partner about his friends, male or female, and makes disparaging remarks about them, the man in exasperation may say "stop behaving like a jealous cat". On account of the wide definition he would be guilty of domestic violence on different scores. And therein lies the rub. One of the meanings of insult is "to hurt one's feelings". There are hypersensitive persons who perceive hurt and imagine insults when none is meant or intended. For example, in a heated discussion on the subject of religion and some religious practices, it is likely for a man to call his wife or female partner a fanatic and that may well be for good reasons. Is that an insult? Take the case of a debate about the advisability of the abolition of capital punishment. If the wife is fervently for hanging convicted criminals by the neck till they die, the male in exasperation may call her a blood thirsty moron. In the above examples it would be absurd to hold that the man has indulged in verbal abuse and is thus guilty of domestic violence. But that is precisely what would happen in view of the indiscriminate and imprecise definition of verbal abuse. This state of affairs would inevitably have a chilling effect on expression. Healthy and vigorous dialogue would become impossible, conversation would lose its flavour and punch and all that on the slippery subjective criterion of name-calling and feelings being hurt. It would also plant seeds for marital discord. If name-calling is persistent and abusive, that is a different matter altogether and may be dealt with appropriately. Therefore, the need is to define verbal abuse narrowly and with precision and to prevent the Domestic Violence Act from being a paradise for lawyers, a hell for husbands and nightmare for enforcement authorities."
In Towne vs Eisner 245 US 18, 425 :62 LED 372, 376 [from 2001(7) SCC 18] it was observed that
" A word is not a crystal , transparent and
unchanged; It is the skin of living thought and
may vary greatly in colour and content
according to the circumstances and the time
in which it is used.".
Hence Verbal abuses and the words of the so called aggrieved person cannot be taken to be as gospel of truth all times.
Emotional – A women may get emotional for millions of reasons. As an example: the husband belief and value systems are different from that of his wife; There can therefore exist a mismatch between the two persons, thereby causing emotional distress to one or both of them. This cannot be construed as emotional abuse having caused by man on the woman.
Economic – Action of a conscientious family loving husband, who earns hard and ensures that his family including his wife spends and manages within a reasonable budget in the interest of his family can be put forward as an economic abuse by a spendthrift wife who feels her selfish interests are not toed by her husband. This cannot be construed as economic abuse having caused by man on the woman. This provision, whereas in Explanation II clearly states that for the purpose of determining whether any act, omission , commission or conduct of the respondent constitutes "domestic violence" under this section, the overall facts and circumstances of the case shall be taken into consideration. But the innocent victims are put in a tight corner as their voice has no consideration in the courts since there can be no documentary proof or witness in a domestic case. The explanation clause is simply an appended clause to give an impartial outlook but in reality, in many cases, the real facts of the case have to be ignored to save the long title of the Act.
Therefore, there is an immediate need and mandatory requirement to define all types of abuses narrowly and with precision and to prevent the Domestic Violence Act from being a paradise for lawyers, a hell for husbands and nightmare for enforcement authorities.
The wife would have left the job for various reasons to take care of the family, children etc., earlier, and can make a statement as to bring that in to the purview of the Act and label it as an economic offence.
The DV Act singles out men as perpetrators of domestic violence and assumes that only women are victims. As per this law, only a woman can file a complaint against her male partner. A man, who is a victim of domestic violence, has no rights under this law.
Suspicion, however grave, cannot be accepted as tantamount to proof of guilt.(Per Rahman ,J) –Atah Mohammad Khan vs Crown AIR 1950 Lah 199: Pak LR(1950) Lah 417:Pak cas (1950) Lah 504(FB). [Taken from CRIMINAL TRIAL by Y.R.Rao and Y.C.Rao 4th edition @p14].
Mere suspicion is not sufficient for the purpose of proving a fact and the said fact has to be established by the prosecution by bringing on record legal proof of that fact. Mushtaq Abdul Majeed Shaikh vs State of
The fact is that it has been comprehensively proven in numerous studies that women are no less abusive as men in intimate relationships.
Giving such sweeping legal powers to women while withholding protection to male victims is tantamount to systematic legal victimization of men. In the western world, the domestic violence laws are gender neutral and provide protection to the victims, both men and women. The fact that the Indian version explicitly prohibits any male victim to seek relief under this law defies all logic and is beyond comprehension.
Another significant flaw in this law is that it lends itself to such easy misuse that women will find it hard to resist the temptation to "teach a lesson" to their male relatives and will file frivolous and false cases. A similar trend is already being observed in the case of anti-dowry law (S. 498a IPC), which is being misused to such an extent that the Supreme Court has termed it "Legal Terrorism".
The Domestic Violence Act, 2005 is imbalanced, harsh and one-sided and there is every chance of misuse of the Act by unscrupulous women who could easily trap many innocent men for any petty things that dissatisfied her. Women should be given protection, but not by forfeiting the rights of men. It is a deprivation of their `liberty' as per Article 21 of the Constitution of India which reads "No person shall be deprived of his life and liberty except according to procedure established by law". But the procedure established by law has to be fair, just and reasonable, not fanciful oppressive or arbitrary. The very big lacuna in the Domestic Violence Act, 2005 is that it excludes judicial discretion in ascertaining as to who was the cause for the Domestic violence as the provision (Sec 3) which defines Domestic violence, rules out the presumption of guilt to the wife or the applicant. This is an arbitrary provision in the Statute which revolves to advantage all claims and rights touching life and liberty only to women which is against the principles of natural justice. It is also against the principles of Constitution since the procedure prescribed by the Law is not just and it is biased.
Factual circumstances cannot be known unless proved. If one starts collecting evidences and proofs in daily life inside the house, it will be another office and not home. Hence the circumstances under which the respondent had to dispose of the assets cannot be proved. Even under this Section, the benefit of doubt goes to the blamer and not to the accused.
It is not possible for any human being to suppress the emotions for long. The stress meted out in the working environment, family responsibilities, etc., are the factors to be considered before accusing the person. Moreover, occasionally any person will let out his/her feeling only to his closest relation. If this is being suppressed, it may tell upon his/her health. Hence, it is always better to give margin/space for both the genders to let out their feelings / grievances. It should not be magnified as if all human beings are free from it and which does not warrant interference by the Courts.
Any honest difference of opinion between the two in the day-to-day life can be possibly construed as harassment, torture and an application under the provisions of the Domestic Violence Act, 2005. The Act also can be misused by the women as to force her husband to toe her line. In any family, unless both husband and wife pull together, the family life will come to a grinding halt leading to disharmony.
Family violence is therefore a human problem, not a gender issue.
(E) Section 4:- “Information to protection officer and
exclusion of liability of informant”
This section seeks to provide that any person who has reason to believe that an act of domestic violence has been or is being committed; such person may inform the Protection Officer. It also lays down that the person who is providing the information in good faith shall be exempt from any civil or criminal liability for giving such information.
This section while providing persons to come forward for information to be provided in good faith totally overlooks the aspect of an intentional false information/complaint that may be provided by an informant or information that is provided with malafide intentions.
Therefore necessary amendments to this section are required incorporating strict punishments for anyone, including the aggrieved persons who are making false complaint and those provided with malafide intentions.
The section does not provide as to the procedure that has to be followed if a male partner/husband has undergone the torture. There is no kind of liability for the aggrieved person/woman. There can be no rights when there is no responsibility. Rights and duties are complementary to each other. If one claims any right, he/she should have exercised a corresponding duty. The principle is also enunciated in the case
(F) Section 5:- “Duties of Police officers, service providers and Magistrate”
Mere accusation/allegation/information of the wife cannot be taken as gospel of truth as they may even be of false in nature and hence any receipt of information cannot be construed to be a cognizable offence. Aggrieved person according to this section also is the woman/wife, which is again a biased provision. This section forces/compels a Police Officer/service provider/Magistrate to indulge in wrong acts/deeds and also forces them to encourage/appreciate even if allegations / accusations / information are false in nature. Therefore this section is unconstitutional and has to be struck down if not amended.
(G) Sec.7:- “Duties of Medical facilities”
This section seeks to provide that the person in charge of the medical facility shall be bound to provide medical aid to the aggrieved person if requested by her or on her behalf by a Protection Officer or a service provider.
It is unfortunate that the husband/male partner who is a victim of this Statute or has become a victim of the allegations/charges of the so-called aggrieved woman has no say or voice to request for a medical examination of the aggrieved person to prove his innocence.
When it is not possible to prove his innocence, it is not tenable to accept the contention of the wife alone. This is again, a provision which does not respect the rights of men, favour the womenfolk alone based on the discrimination of s*x which is unconstitutional.
It is strange that the protection officer has to wait till a request has been made by the aggrieved person. The appropriate suggestions would be to incorporate a mandatory provision for an expert medical opinion/report for any physical, s*xual abuse from a recognized expert medical practitioner, as well as a psychiatric opinion/report for all other non-physical abuse including verbal, mental, emotional, psychological abuses to assess the physical and mental condition of the aggrieved person as well as to report qualitatively and quantitatively the degree of harm and injury allegedly sustained.
This will also ensure to some extent that unscrupulous woman do not resort to any false complaints.
(H) Sec.9:- “Duties and functions of Protection Officers”
This is also a biased provision in favour of women alone. The Statute directs the Protection Officer to get the aggrieved person alone to get medically examined. Any Statute that discriminates men/women i.e., on the basis of s*x is unconstitutional. The Statute cannot assume that the aggressive person can only be a male member and the assumption that women alone could have sustained bodily injuries is not correct. Many women do harass men by physical, verbal, mental and emotional abuse which does not come to the light in view to uphold the tradition, moral and ethical values of life. Men are silent sufferers, (including me) as they do not talk it out. Even Laws do not protect them.
In the real interest of many innocent victims like me, I submit therefore while looking in to the physical, verbal, emotional, psychological, economic abuse, the law should provide powers to the protection officer to get assistance of a recognised expert medical practitioner as to whether physical abuse of any kind has occurred as well as a recognized expert psychiatrist report and opinion as to whether any non-physical abuse like emotional, mental, psychological abuse has taken place.
The duties and functions as prescribed under the Statute imply that the said Officer has to only protect the women and assist them in the procedure. A Statute cannot direct the concerned authority to protect and assist a particular gender, which is against the principle of legal balance.
The Statute provides for a Domestic Incident Report (D.I.R.) to be prepared either by the Protection Officer under Section 9 (b) and forward it to the Magistrate and to the service providers and the police officer of the local limits; whereas under Section 10 (2) (a), a service provider has the power to record the D.I.R. if the aggrieved person so desires and forward a copy to the Magistrate and to the protection officer having jurisdiction. Making of a D.I.R. to the Magistrate under Section 9(1)(b) is distinct from recording the D.I.R. under Section 10 (2) (a). Rule 5 permits lodging of D.I.R. either with the protection officer or with the service provider. This strictly speaking may not be a desirable state of affairs, inasmuch as lodging of D.I.R. with the protection officer would render the service provider purposeless.
Whereas F.I.Rs. are entered in a pre-printed consecutively numbered paged in a bound book and the copy of F.I.R. will be transmitted to the magistrate to avoid manipulations, whereas D.I.Rs. does not contain any such safeguards which promotes ante-dating or ante-timing as well as other manipulations. This kind of senseless formats could very well be used to blackmail both the parties by corrupt persons etc. to extract/extort money or for personal gains.
(I) Section 11:- “Duties of Government”
This Section stipulates the duties of the Central and the State Governments. Subsection (c) suggests for effective co-ordination between the services provided by concerned Ministries and Departments dealing with Law, home affairs , including Law and order, health and human resources to address issues of Domestic violence is established and periodical review of the same is conducted;
(J) Section 12:- “Application to a Magistrate”
This section lays down that the aggrieved person or Protection Officer or any other person on behalf of the aggrieved person may present an application to the Magistrate seeking for relief. When all are equal in the eyes of law, it is impossible to accept this provision as constitutional because of the bias. At one end the Constitution strives at attaining equality, at the other end, the Parliament promotes the statute which discriminates men , thereby resulting in discrimination of women also, which ultimately fools the common man by providing the title of the Act as "PREVENTION OF WOMEN FROM DOMESTIC VIOLENCE ACT " . Discrimination includes any type of distinction, exclusion or restriction of any person on the basis of s*x. The Constitution does not favour gender discrimination of any sort. Protection of women is a must and that is not challenged anywhere in the present writ petition but it is forfeiting of the rights of men and discrimination of men on the basis of s*x that is being challenged here. Hence, the application to a Magistrate can be made at the instance of the "aggrieved person" who is a woman alone is not tenable and unconstitutional.
(K) Section 15:- “Assistance of welfare expert”
It is unfortunate that a Statute prefers only a woman to assist the Magistrate in discharging his functions and that too, she may be related to the so-called aggrieved person. First of all, the Statute does not, in real sense, protect the interests of women and the family. The functions, qualifications and aptitudes of the welfare expert have not been defined at all anywhere in the Act.
(L) Section 18:- “Protection orders”
If a man has been assaulted by his intimate partner, he should be able to obtain an order of protection. But he cannot. When the Statute constantly and consistently ignores the actions of perpetrators and encourages the arrest of victims and increase in protection orders there is a sure sign of a justice system turning upside down.
According to 18 (e), the very purpose of freezing the account, lockers, assets of the male partner/husband is not correct. A person has a right to live according to Article 21. This is a fundamental right of any citizen. Depriving him by not allowing him to access his own hard earned money and assets amounts to depriving him of his "right to live". Hence, the provision is unconstitutional and has to be struck down.
The spouse may not be his own blood but the child/children are his own blood. It is unimaginable to deprive of a person's right to have access to his own children. This Act hence disables a father especially to correct his children for their wrong actions. If he does so, it comes within the purview of "verbal and emotional abuse". If the erring child is not corrected, he or she will be a spoilt child.
(M) Section 19:- “Residence Orders”
After prohibiting the husband/male partner from operating bank accounts, now in this provision he loses to enjoy his own property. It is his fundamental right to alienate or to enjoy the property. A self acquired property can be disposed of or enjoyed according to the wish of the person. He is entitled to write a will in favour of a person other than his family members. This is a right given under the Hindu Law. It cannot be taken away at one stroke of a pen. It is not justified when the person is deprived of his right to enjoy his property also. So, the Statute forfeits the right to enjoy his property (both children and his assets), his hard earned money by freezing the account. The only right left out now is the `Right to Breathe'. This is atrocious on the part of the law makers to deny a person of so many valuable things in life for not doing any crime. All wrongs need not amount to a crime. Even in a murder case, the accused is heard before he is sent to the jail. But, here in this civil law, the so-called accused/ real victim is sent to jail before hearing. Hence, many women misuse the Statute and it is not invoked in the real interest of women/family. The Statute on the whole, encourages break down of families. It is unfortunate to mention here, that invoking the provisions of the Act may seem a paradise to the lawyers but is a hell to the innocent male victims and also it does not serve the real interest of the women as the family does not and cannot unite after invoking the provisions of the Act. Hence I submit that this provision is also unconstitutional.
According to Section 19(3), the Magistrate may require from the respondent to execute a bond with or without sureties, for preventing the commission of Domestic Violence and Section 19(4) says that an order under subsection (3) shall be deemed to be one under chapter VIII of the Cr. P C and shall be dealt with accordingly. Sec. 122 (1) (b) Cr P C empowers the Magistrate to order the person to be arrested and detained in person until the expiry of the period of the bond; Section 19 of the Domestic Violence Act does not require the period to be specified a breach of the bond under section 19(3) could be interpreted as it renders possible for the respondent to be indefinitely detained in prison.
(N) Section 20:- “Monetary relief”
This section empowers the Magistrate to pass orders for grant of monetary relief to the aggrieved person from the respondent to meet the expenses incurred and losses suffered including loss of earnings, medical expenses, loss to property and maintenance of the aggrieved person and her children including maintenance under, or in addition, to Sec.125 of the Code of Criminal Procedure, 1973 or any other law for the time being in force.
The old notion that generally it is the man's primary responsibility to provide a home and its essentials can no longer justify a Statute that discriminates on the basis of gender. No longer is the female destined solely for the home and the rearing of the family, and only the male for the marketplace and the world of ideas. Hence, the whole concept of insisting the man to provide compensation / alimony / maintenance for a qualified and talented woman or forcefully incorporating in the Law is not tenable.
Sub-section (2) provides that the monetary relief shall be adequate, fair and reasonable and consistent with the standard of living to which the aggrieved person is accustomed. This section also empowers the Magistrate to order lump sum or monthly payments for maintenance. Sub-section (6) provides that on the failure of the respondent to make payments of the monetary relief, the Magistrate may direct the employer or a debtor of the respondent to directly pay to the aggrieved person or to deposit with the court a portion of the wages or salaries or debt due to or accrued to the respondent.
The Section does not deal with the facts when there has been a false allegation against the respondent. Though when the onus lies on the accused, it is difficult to prove that domestic violence has not occurred in all cases, whereas, since no evidence is needed except some crocodile tears of a woman before the authorities under the Act, it is very easy to charge a person of the offence and claim relief and compensation in terms of monetary relief. In the absence of opportunity to disprove the allegations or charge, there is likely to be miscarriage of justice.
According to section 20 [1] (d), the maintenance for the aggrieved person as well as her children, if any, including an order under or in addition to an order of maintenance under Section 125 CrPC or any other law for the time being in force. It is pertinent to note here that for a single offence both civil and criminal provisions are applicable. There is no principle of natural justice, when already maintenance under section 125 Cr.P.C. is applicable, another provision for maintenance in addition to that, is not justifiable.
(O) Section 21:- “Custody orders”
I submit Section 21 permits the Magistrate to pass an order on temporary custody of any child or children to the aggrieved person or the person making an application on her behalf. The Magistrate has also got the power to prevent the visitation right to the husband. Since non obstante provision is mentioned in the Section 21, it runs counter to the laws applicable to the Hindus and others. If this provision is invoked it will be harmful definitely to the interest of the children as the child or children will be a fatherless one. Because of the difference of opinion among the spouse or because of a false accusation from wife, the child or children should not be deprived of continuous paternal affection. Spouse can divorce each other. Children cannot divorce either of them. Neither of the parents can divorce the children. The children need both paternal and maternal care and affection. Denial of either or maternal or paternal love to a child is an unpardonable sin & crime. Custody can best be provided jointly to both the parents or be in a well known boarding school with access for the visiting privilege for each parent. The practice and habit of completely ignoring the interest of the father and his relationship with his children and generally not providing custody rights to the father is not right ethically or morally and is against the interest of good upbringing of the children, who needs both parents. The Custody rights for the father cannot be ignored at all and depriving the visitation rights in toto is not correct.
(P) Section 22:- “Compensation orders”
This section lays down that in addition to other relief which may be granted under the Act, the Magistrate may, on an application by the aggrieved person, pass an order directing the respondent to pay compensation or damages or both to the aggrieved person for the injuries including for the mental torture and emotional distress caused to her by domestic violence by the respondent.
This is the zenith of the torture for a man who has not committed any offence and subjected to false allegations. The statute directs the Magistrate to order for compensation at the instance of the aggrieved person (a woman) and that too, in addition to other relief, without giving an opportunity of hearing to the respondent. Audi alteram Partem (Hear the other side) is the basic rule of principles of natural justice, which has not been incorporated in this provision and hence it is unconstitutional.
In Suresh Chandra Nanhorya vs Rajendra Rajak and others [2006 (46) AIC 93], the two member Bench of the Supreme Court has observed that natural justice is the essence of fair adjudication deeply rooted in the tradition and conscience to be ranked as fundamental. The purpose of following the principles of Natural justice is the prevention of miscarriage of justice.
(Q) Section 23:- “Power to grant interim and ex parte orders”
This section provides for grant of interim orders by the Magistrate. If the Magistrate is satisfied that an application prima-facie discloses that the respondent is committing, or has committed an act of domestic violence or that there is a likelihood that the respondent may commit an act of domestic violence, he may grant an exparte order on the basis of the affidavit in such form, as may be prescribed, of the aggrieved person under section 18, section 19, section 20, section 21 or, as the case may be, section 22 against the respondent.
The interim order granted by the Magistrate under this provision should be based on the evidence, material documents, etc., whereas, in the said provision, nothing is needed for the order to be passed by the Magistrate. Without any oral or documentary evidence, the section 23(1) empowers the Magistrate to pass the orders. The section is also vague whether a male partner should be heard and submits his evidence before any interim or exparte order is passed.
The Exparte order in that section connotes two things: -
1. The male partner/husband or their Counsel is absent for the proceedings. In this situation, the Magistrate can pass an exparte order.
2. In case the male partner/husband or their Counsel is present, passing an exparte order without hearing them is illegal and the Act provides for passing an order without hearing.
I submit that the principle of natural justice requires that a person should be heard before any order is passed. Passing an order based on an affidavit of a female person even if the male partner or his Counsel is present smacks arbitrariness.
It is not justified to pass an order on the basis of a likelihood of any domestic violence only on the basis of the version of the aggrieved person. An exparte order could be passed only in the absence of the other party. But, the direction to give exparte order in the statute itself on the basis of the aggrieved person (woman) is not at all justified.
Q.1) Under Section 25, a protection order made under section 18 shall be in force till the aggrieved person applies for discharge. There is nothing in the entire statute to indicate as to how long such an exparte order would remain in force. Under Civil Procedure Code, Order 39 Rule 3A, in case exparte injunction has been granted, the application for injunction to be decided finally with in 30 days. This cannot apply to the DV Act since the proceedings are criminal in nature. This shall be the position even if relief under section 18 is claimed, by virtue of section 26, before a civil court.
(R) Sec. 32 read with Rules 12 (4):- “Cognizance and proof”
This section lays down that the offence of breach of protection order by the respondent shall be a cognizable and a non-bailable offence and the court may conclude on the sole testimony of the aggrieved person that the offence has been committed. If this has to be construed as a cognizable one, then it goes without saying that it is common to both man and woman. It has to be gender neutral one. CRIME CAN BE COMMITTED BY BOTH MAN AND WOMAN. There are women prisoners too, to ascertain the fact that women are also committing crimes.
It is highly dangerous in the present scenario to get married. No man would like to marry, if he reads the Act as a whole. Instead of protecting a family which is a basic block of the society, the Government interferes and teaches how to doubt a person and the ways to trap a person to bring him under the purview of the Act. After the protection order is passed, even if the aggrieved person invites him to meet her, he should restrain himself from doing so. If he obliges to her request, he will be framed/charged under Sec. 32. The Act just says women will be protected at any cost and advices man not to believe his wife.
Sec 32(2) states that based on the sole testimony of the aggrieved person, the court may conclude that an offence under sub section (1) of section 31 has been committed by the accused. The court jumps to conclusions without hearing the so-called accused, which is unconstitutional and against the principles of natural justice. Even in a murder case the accused will be heard first and then only sent to imprisonment. But here this is contrary to the general law and rules of justice. An allegation suffices for proof of evidence. Hearsay is taken for gospel.
There is every possibility and likelihood that a woman lodge false allegations and complaints to the police and thereby forcing the courts to pass an exparte order by invoking the provisions of sections 31 and 32. This means on the sole testimony of my wife, the court may come to the wrong conclusion that an offence under sub section (1) of section 31 has been committed by me and could pass orders detrimental to my interest.
Any penalty or penal provision in any Act should have a fixed period. The maintenance has to be paid for how long? Even life sentence is for a fixed time. But a married man suffers while living with his wife, while she leaves him and also after she left him.
It has become possible now, for a perfectly innocent man, who has done nothing outside the law, to be sent to prison on one person's unsubstantiated word.
Rgds,
D. Arun Kumar, New Delhi
