All you Need to Know about Domestic Violence Act: Law and Judgments

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January 25, 2018

In this paper we present a comprehensive overview of an essential legislation i.e. The Protection of Women From Domestic Violence Act, 2005 (hereinafter referred to as the Domestic Violence Act) drafted for women empowerment and for protection of women against acts of violence in India.

Scope of the Act

The scope of this piece of legislation has been expounded in plethora of judgements by the High Courts and the Supreme Court in India. For instance, in a recent judgment the High Court of Gujarat in the case of Bhartiben Bipinbhai Tamboli v. State of Gujrat and ors. (read here) while extensively discussing the provisions under the Domestic Violence Act remarked that:

The   domestic   violence   in   this Country   is rampant and several women   encounter   violence   in   some   form   or   the   other   or   almost everyday. However, it is the least reported form of cruel behaviour. A woman resigns her fate to the neve ending cycle of enduring violence and discrimination as a daughter, a sister, a wife, a mother, a partner, a single woman in her lifetime. This non- retaliation by women coupled with the absence of laws addressing women’s issues, ignorance of the existing laws enacted for women and societal attitude makes the women vulnerable. The reason why most cases of domestic violence are never reported is due to the social stigma of the society and the attitude of the women themselves, where women are expected to be subservient, not just to their male counterparts but also to the male relatives.

Till the year 2005, the remedies available to a victim of domestic violence were limited. The women either had to go to the civil court for a decree of divorce or initiate prosecution in the criminal court for the offence punishable under Section 498A of IPC. In both the proceedings, no emergency relief is available to the victim. Also, the relationships   outside   the   marriage   were   not recognized.   This   set   of circumstances ensured that a majority of women preferred to suffer in silence, not out of choice but of compulsion. Having regard to all these facts, the Parliament thought fit to enact Domestic Violence Act. The main Object of the Act is protection of women from violence inflicted by a man or/and a woman. It is a progressive Act, whose sole intention is to protect the women irrespective of the relationship she shares with the accused. The definition of an aggrieved person under the Act is so wide that it taken within its purview even women who are living with their partners in a live in relationship.

Who can file a complaint under the Domestic Violence Act?

Section 2(a) of the Domestic Violence Act defines “aggrieved person” as any woman who is, or has been, in a domestic relationship with the respondent and who alleges to have been subjected to any act of domestic violence by the respondent.

The Domestic Violence Act not only covers those women who are or have been in a relationship with the abuser but it also covers those women who have lived together in a shared household[1] and are related by consanguinity, marriage of through a relationship in the nature of marriage  or   adoption .

Even those women who are sisters, widows, mothers, single women, or living in any other relationship with the abuser are entitled to legal protection under the Domestic Violence Act.

What is shared household?

The term shared household is defined under the Domestic Violence Act as a household where the person aggrieved lives or at any stage has lived in a domestic relationship either singly or along with the respondent and includes such a household whether owned or tenanted either jointly by the aggrieved person and the respondent, or owned or tenanted by either of them in respect of which either the aggrieved person or the respondent or both jointly or singly have any right, title, interest or equity and includes such a household which may belong to the joint family of which the respondent is a member, irrespective of whether the respondent or the aggrieved person has any right, title or interest in the shared household[2].

In the case of S.R. Batra   & Another Vs. Smt. Taruna Batra[3], the Supreme Court with reference to definition of shared household under Section 2(s) of the Domestic Violence Act stated that the definition of ‘shared household’ in Section 2(s) of the Act is not very happily worded, and appears to be the result of clumsy drafting requires to be interpreted in a sensible manner.

The Court held that under Section 17(1) of the Act wife is only entitled to claim a right to residence in a shared household, and a ‘shared household’ would only mean the house belonging to or taken on rent by the husband, or the house which belongs to the joint family of which the husband is a member. In the case, the property in question neither belonged to the husband nor was it taken on rent by him nor was it a joint family property of which the husband was a member. It was the exclusive property of mother of husband and not a shared household.

Women in Live in relationships covered under the Act

A wider meaning to an “aggrieved person” under Section 2(a) of the Domestic Violence Act was conferred by the Supreme Court in the case of D. Veluswamy v. D. Patchaiammal[4], wherein the Court enumerated five ingredients of a live in relationship as follows:

  1. Both the parties must behave as husband and wife and are recognized as husband and wife in front of society
  2. They must be of a valid legal age of marriage
  3. They should qualify to enter into marriage eg. None of the partner should have a souse living at the time of entering into relationship.
  4. They must have voluntarily cohabited for a significant period of time
  5. They must have lived together in a shared household

The Supreme Court also observed that not all live-­in­-relationships   will   amount   to   a relationship in the nature of marriage to get the benefit of Domestic Violence Act. To get such benefit the conditions mentioned above shall be fulfilled and this has to be proved by evidence.

Status of a Keep- The Court in the case further stated that if a man has a ‘keep’ whom he maintains financially and uses mainly for sexual purpose and/or a servant it would not be a relationship in the nature of marriage.

In this case, the Court also referred to the term “palimony” which means grant of maintenance to a woman who has lived for a substantial period of time with a man without marrying and is then deserted by him[5].

Against whom can the complaint be filed under the Domestic Violence Act?

Section 2(q) of the Domestic Violence Act defines “respondent” as any adult male person who is, or has been, in a domestic relationship with the aggrieved person and against whom the aggrieved person has sought any relief under this Act:

Provided that an aggrieved wife or female living in a relationship in the nature of a marriage may also file a complaint against a relative of the husband or the male partner.

In view of the definition of the term respondent covering adult male person, the judiciary has time and again been confronted with the argument that an aggrieved person can file complain under the Domestic Violence Act against an adult male person only and not against the female relatives of the husband i.e. mother-in-law, sister-in-law.

However, the Supreme Court in the case of Sandhya Wankhede vs. Manoj Bhimrao Wnakhede[6]  put ot rest the issue by holding that the proviso to Section 2(q) does not exclude female relatives of the husband or male partner from the ambit of a complaint that can be made under the provisions of the Domestic Violence Act. Therefore, complaints are not just maintainable against the adult male person but also the female relative of such adult male[7].

Wife cannot implicate one and all in the familyThough the Domestic Violence Act is a beneficial legislation, the same has been many times reported to be misused by women. For instance, in several cases women register complaint under Domestic Violence Act against one and all relatives of husband even without any evidence of abuse against them. In the case of Ashish Dixit vs. State of UP & Anr. the Supreme Court has held that a wife cannot implicate one and all in a Domestic violence case. In this case, the complainant apart from arraying the husband and in-­laws in the complaint, had also included all and sundry as parties to the case, of which the complainant didn’t even know names.

Types of abuse under the Domestic Violence Act

The Gujrat High Court in a recent case of Bhartiben Bipinbhai Tamboli v. State of Gujrat and ors. (read here) elaborated on the types of abuse or domestic violence under the Act. The same is enumerated below:

Physical Abuse

Physical abuse is the use of physical force against a woman in a way   that   causes   her   bodily   injury   or   hurt.   Physical   assault,   criminal  intimidation   and   criminal   force   are   also   forms   of   physical   abuse   like  beating,   kicking   and   punching,   throwing   objects,   damaging   property,  punched   walls,   kicked   doors,   abandoning   her   in   a   dangerous   or  unfamiliar place, using a weapon to threaten or hurt her, forcing her to leave the matrimonial home, hurting her children, using physical force in  sexual situations.

Sexual Abuse

This is also a form of physical abuse. Any situation in which a woman is forced to participate in unwanted safe or degrading sexual activity, calling her sexual names, hurting a woman with objects and weapons during sex is sexual abuse.

Verbal and Emotional Abuse

Many women suffer from   emotional   abuse,   which   is   no   less   destructive.  Unfortunately, emotional abuse is often minimized or overlooked – even by the woman being   abused.

Emotional abuse includes   verbal abuse such as yelling, name-calling,   blaming   and   shaming.   Isolation,   intimidation   and controlling behaviour also fall under emotional abuse. Calls her names, insults her or continually criticizes her.

Economic Abuse

Economic abuse is not a very recognized form of abuse among the women   but   it   is   very   detrimental. Economic   abuse   mainly   includes   a woman   not   been   provided   with   enough   money   by   her   partner   to  maintain herself and her children, which may comprise money for food,  clothing,   medicines etc. and  not allowing a woman to take up an employment . Forcing her out of the house and   not   allowing   a   woman   to   take   up   an employment.   Forcing   her   out   of   the   house   where she   lives   and   not providing her rent, in case of a rented share hold also amounts to abuse.

Depriving her of all or any economic or financial resources to which the person   is   entitled   under   the law   or   custom,   restricting   the   woman’s access to the shared household. Disposing or alienating the assets of the women   whether   movable   or   immovable,   valuables,   shares,   securities, bonds and the like other property in which she may have an interest. However seeking maintenance to unjustly enrich one’s self and that too without providing the alleged act of domestic violence is a gross abuse of the process of law.

Duty of Courts while deciding cases under the Domestic Violence Act

In the case of Krishna Bhatacharjee vs. Sarathi Choudhury and Another[8], the Apex Court while elucidating on the duty of courts while deciding complaints under the Domestic Violence Act stated that:

  • It is the duty of the Court to scrutinise the facts from all angles whether a plea advanced by the respondent to nullify the grievance of the aggrieved person is really legally sound and correct.
  • The principle “justice to the cause is equivalent to the salt of ocean” should be kept in mind. The Court of Law is bound to uphold the truth which sparkles when justice is done.
  • Before throwing a petition at the threshold, it is obligatory to see that the person aggrieved under such a legislation is not faced with a situation of non-adjudication, for the 2005 Act as we have stated is a beneficial as well as assertively affirmative enactment for the realisation of the constitutional rights of women and to ensure that they do not become victims of any kind of domestic violence.

Husband’s Obligation to maintain wife under the Domestic Violence Act

In a case taken up by the Supreme Court i.e. Vimlaben Ajitbhai Patel v. Vatslaben Ashokbhai Patel and ors[9]. it was held that when it comes to maintenance of wife under the Domestic Violence Act read with the Hindu Adoption and Maintenance Act, 1956 it is the personal obligation of the husband to maintain his wife. Property of mother-in-law can neither be subject matter of attachment nor during the life time of husband can his personal liability to maintain his wife be directed to be enforced against such property.

Maintenance of mother under the Domestic Violence Act

In   the   case   of   Ganesh   S/o.   Rajendra   Kapratwar,   Abhijeet,   S/o.  Ganeshrao Kapratwar and Parijeet, S/o. Ganeshrao Kapratwar Vs. The State   of   Maharashtra   and   Sow.   Shantabai,   W/o.   Rajendra   Kapratwar[10] ,the   Bombay   High   Court   in   an   application  preferred by the mother for maintenance and medical expenses under the and medical expenses under  the Domestic Violence Act and the Hindu Adoptions and Maintenance  Act, 1956 against her son and grandsons has held that:

“Grandsons   would   have   been   liable   to   pay   maintenance   to   grandmother   under Sections 22(1) of the Hindu Adoptions and Maintenance Act, 1956,   provided   their   father   had   not   been   alive and not   capable   of   paying   maintenance.”

Retrospective application of the Domestic Violence Act

In the case of V.D.   Bhanot   Vs.   Savita   Bhanot[11], which upheld the Delhi High Court’s view that ­ “even a wife who had shared a household before the Domestic Violence Act came into force would be entitled to the protection of the Domestic Violence Act.

Hence, the Domestic Violence Act entitles the aggrieved person to file an Application under the Act even for the acts which have been committed prior to the commencement of the Domestic Violence Act.

Also read Filing domestic violence case is not an act of cruelty

Also read Who can claim relief under the Protection of Women from Domestic Violence Act 2005

Through this article we wish to help those women who are in genuine need of help and are willing to file complaint against domestic violence. The Domestic Violence Act is a welfare legislation for those in need and is a powerful weapon in the hands of women who are being abused by their family members.

 

 

 

[1] Section 2(f) of Domestic Violence ActDomestic relationship-   “domestic relationship” means a relationship between two persons who live or have, at any point of time, lived together in a shared household, when they are related by consanguinity, marriage, or through a relationship in the nature of marriage, adoption or are family members living together as a joint family;

[2] Section 2(s) of the Domestic Violence Act

[3] AIR 2007 SC 1118

[4] (2010) 10 SCC 469

[5] The term Palimony was first used by the US Court in the case of Marvin Vs. Marvin (1976) 18 C3d660

[6] (2011) 3 SCC 650

[7] Archana Hemant Naik v. Urmilaben I. Naik & Anr., 2009 (3) Bom Cr 851

[8] 2016 (2) SCC 705

[9] 2008 (4) SCC 649

[10] 2010   (112)   BOMLR   1082

[11] (2012) 3 SCC 183