Protection of Women from Domestic Violence Act, 2005

Protection of Women from Domestic Violence Act, 2005: Scope of application and nature of the relief

The Protection of women from the domestic violence act, 2005 was enacted to protect the rights of women guaranteed to them under the Constitution of India. The legislation in itself can be considered progressive, as it recognizes and sought to provide relief from abuse inflicted upon a victim in the domestic household space. The definition of domestic violence under section 3[1] of the act defines it as any mental, physical, or sexual abuse or any economic distress caused to her, or any threat to cause such abuse.

An aggrieved woman under this legislation is empowered to file a complaint against any male member with whom she lives in domestic relationship under the shared household; in cases of matrimony or relationship in nature of marriage the scope of complaint is extended to the relatives of the husband or the male partner.[2]

The relief granted to the victim under this legislation consists orders for monetary compensation, protection of women against future abuse and a safe shelter. The complainant under the domestic violence act can be a woman belonging to any religion. The monetary compensation and aid ordered by the magistrate under this act is governed by Section 125 of the Code of Criminal Procedure, proving the intention of legislation that it is not meant to be a part of any personal law.[3]

Defining domestic relationship:

It is defined under section 2 (f)[4] of the act a domestic relationship is comprised of relation by marriage, relationship in nature of marriage, consanguinity, adoption, or living in a joint family. In furtherance to the definition, the question of protection of women in a live-in relationship is a pertinent question. It can be implied by the term “relationship in nature of marriage”, directs towards live-in relationships, however an air of ambiguity still lurked.

The Hon’ble Supreme Court of India tends to settle this question of law in its judgments. In the case of Indra Sarma vs V.K.V.Sarma[5], the Supreme Court cleared the air by pronouncing that any unmarried woman in a live-in relationship with an unmarried man can seek relief under the act, also a woman who is in a live-in relationship with a married man; unaware of his marital status is entitled for the relief.

The judges emphatically drew attention toward the CEDAW convention ratified by India in the year 1993 and subsequently pronounced; the enactment of the legislation reflects the result of the same. However, the aforementioned judgment unequivocally disentitled an individual of any relief living in a homosexual relationship, but it is significant to note that the judgment passed by Hon’ble Supreme Court in Navtej Singh Johar v Union of India[6], decriminalized homosexuality in the year 2018.

Hence, it can be speculated that the scope of the legislation can be extended to such nature of relationship. In case the answer is affirmative then how, because the legislation identifies aggrieved party as a woman under section 2 (a)[7], so it can be said that a woman in a homosexual relationship can relief the claim, leaving the question unsettled about the male homosexual partners.

In the recent judgment of Chinmayee Jena v State of Orrisa[8], the Hon’ble Orissa High Court allowed writ petition under Article 226 and 227 where the writ of habeas corpus was filed before the court, as one of the partners in a live-in relationship was wrongfully detained by her family (both were women). Hon’ble S.K Mishra J. pronounced in the judgment that, the individuals are entitled to all the rights guaranteed under Part III of the Indian Constitution.

The “lady” in a relationship can very well be protected under the Protection of women from the domestic violence act, 2005. This judgment has opened new avenues to homosexual domestic relationships, however the question that pertains to linger is whether the same protection of women will be available to a man in such relationships? If yes then the lack of test about what characteristics will comprise a “lady” could be a very tricky situation.

Nature of relief under the legislation under Protection of Women against domestic violence

The underlying jurisprudence for the legislation could be understood by the nature of relief it provides to the victim or through the characteristic of punishment imposed upon the convict. In the present scenario the judgment delivered by the Hon’ble Delhi High Court in the case of Savita Bhanot v Lt. Col V. D Bhanot[9], succeeded in defining the jurisprudence of the legislation, which was later affirmed by the Hon’ble Supreme Court.

The judgment stated that the legislation does not make any act or omission amounting to violence against women punishable by imprisonment or fine, reasserting the preamble of the legislation that it is meant to protect the rights guaranteed to women under the constitution of India and hence the foremost concern of the legislation is to restore the position of woman before she was subjected to such violence through monetary compensation and assurance of protection of women.

The legislations zeal to protect constitutional values is also exhibited through enabling the magistrate to proactively participate in investigation; vide section 12(1)[10] it is stated that while passing any order under this act the magistrate can take into consideration any report presented before him by the protection officer or service provider disclosing the incident of domestic violence. But the praxis often differs from sagacious theories and this legislation is no exception.

The lower judiciary often witness cases where the act is used as mere corollary for the cases filed against section 498 A of the IPC, hence compelling the complainant to delve into cumbersome proceedings where the compensatory measures available to the victim are often delayed or lost in the process.

 

Conclusion:

The protection of women against domestic violence act, is a noteworthy attempt in identifying the plight of woman through discovering pristine spheres, the procedure laid down in the act itself is an amendment in the adversarial nature of justice which is eagerly required to protect the principles of constitution in a complex society like ours.

However there will always be lurking challenges when comprising the applicability of the legislation in domestic relationships, due to the dynamic society and consistently changing nature of relationships that are shared; particularly in marriages and relationship in nature of marriage. The dissipation of information and setting up of concerned institutions under this legislation are some other hurdles to its efficacy.

This article is authored by DIVYANI DEEPTI, 5 TH YEAR B.A.LL.B (H) student at CHANAKYA NATIONAL LAW UNIVERSITY. The author explained the Protection of women from domestic violence act 2005

[1] Protection of women from domestic violence act 2005, s. 3

[2] Ibid, s. 2(q); Ajay Kumar v Lata alias Shruti, AIR 2019 SC 2600

[3]Ibid , s. 20 (1)(d)

[4] Ibid, s. 2 (f)

[5] Indra Sarma v V.K.V Sarma [2013] 15 SCC 755

[6] Navtej Singh Johar v Union of India [2018] 10 SCC 1

[7] Ibid, s. 2(a)

[8] Chinmayee Jena v State of Orrisa, WP (Cr) No 57 of 2020

[9] Savita Bhanot v Lt. Colonel V.D Bhanot, (2012) 3 SCC 183

[10] Ibid, s. 12(1)

Protection of Women

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