EVOLVING SCOPE OF MEASURES FOR PROTECTING WOMEN AGAINST DOMESTIC VIOLENCE IN INDIA – AN INSIGHT
Updated: Jan 8
Domestic Violence, so understood as physical, mental, sexual, emotional and even economical torture of another spouse, although a condemned offence as of today, was inflicted upon women as a matter of right by the so-called protector of the household. Unnervingly, the women were expected to suppress such injuries and ensure that all the needs of their husbands were satisfied, for, the Husband was deemed to be the Master of his Wife. In the Indian context, women were assured much required dignity, security and equality only after the commencement of the Constitution, though, the influence of public morality and the rather rigid nature of the separation of powers so adhered to by the judiciary back then prevented them from directly recognizing the rights of individuals back then. It wasn’t until the judgments of the Apex Court in Vishakha v. State of Rajasthan, wherein guidelines for protecting women against sexual harassment were laid down, that the need to shelter the bodily interests against all forms of sexual abuses was addressed, imposing an obligation upon the State to fulfil the promises made at several International Conventions in this regard. , Commendably, the Legislature did devise the Protection of Women against Domestic Violence Act, 2005, which provides several safeguards to women after falling prey to such form of violence besides a civil law remedy, ., The term domestic violence includes instances wherein the husband or a partner or any distinct relative either physically or mentally abuses the wife in the shared household, which could manifest certain penal offences within the Indian Penal Code, 1860. In a general sense, it includes physical violence, threatening or intimidating behavior and any other form of abuse which may in some way or the other give risk of the harm. Owing to the humanitarian interpretation of this law by the courts, it has been instrumental in protecting the dignity, assuring shelter and safeguarding women against violence in the country. In fact, the judicial forums, bearing in mind the orthodox construct of the society, extended the scope of this Act against female members of the famly who harass the women and even for keeping pace with the rapidly growing understanding of “live-in relationships”; provisions have been enabled to protect the rights of non-married women, living with another male, as if they were married.
Amidst these judicial developments in the domestic violence jurisprudence, the apex court, in Satish Chander Ahuja v. Sneha Ahuja on 15th October 2020, successfully strengthened the position of victims under this Act, by allowing women to claim the right to residence not only in the shared household of her husband but also at the relatives. The concept of Shared-Household has been interpreted as aplace where the aggrieved person was living at that time when an application for claiming residence was filed or in the recent past had been excluded from the use, or she is temporarily absent – a proof of permanent residence is a must. Although revolutionary, the said concept has also been used for issuing a restraining order against a husband from his own house. In instances such a complaint is filed - he can be removed from his own matrimonial home or be compelled to arrange alternate accommodation equivalent of the shared- household enjoyed by the woman before making the said complaint. Whether such a move can be taken against the near kin of the husband is unknown, though the Court in the present case has imposed responsibility upon every adjudicatory forum to maintain a fine balance between the rights of accommodation of the relatives with the safety of the victim. To put it simply, the Court in the light of the established law that the term “respondent” under Section 2(q) of the Act extends to husband as well as his relatives, also expanded the scope of Section 2(s), i.e. the definition of shared household to include the woman’sright to residein the property of her Father-in-Law. The verdict averred that upon assessment of a case for domestic violence, besides adducing other relevant evidence, a competent court could direct the victim herself to leave the said premises, for preserving her interest. Assuring that the proceedings under the said enactment are independent of other claims under different Laws, the Courts held that any order under Section 19of the said dictum does not prohibit the initiation/continuation of any civil proceedings pertaining to the issue of the aforesaid order. Incidentally, this stance of the apex court is in consonance with the previous precedents of the Delhi High Court, which have dismissed title and ownership over property as a ground for allowing victims under this enactment to claim a right to residence, since the same has no concern whatsoever with the Title over the said property.
Due to the outbreak of COVID-19, the authorities for f halting the spread of COVID-19 in the country, were compelled to impose a nationwide lockdown, i.e., a complete halt upon the socio-economic activities of the State. According to many, the immediate effect of such administrative action was the unprecedented surge in the domestic violence cases in the country. the National Commission for Women did take the pains to make it easier for the victims to file complaints of such nature easily by creating an “emergency WhatsApp number” after recording 370 Cases from 23rd March, 2020 to 23rd April, 2020. Although the High Court of Delhi and the High Court of Jammu And Kashmir did suggest measures for addressing these issues, the fact that the women could not be rehabilitated to a safer environment due to the fear of contracting the virus was suggestive of an increased threat to the well-being of such women. This reveals the failure of the Government machinery to spread awareness about the need to halt domestic violence and its implications amongst every section of the society, which is an obligation as per Section 11(a) of the said enactment. This yet again, indicates the lackadaisical attitude of the Legislature for undertaking preventive measures to that effect and the dire need of learned citizens to take a step forward in promoting the rights of women against domestic violence in the country. After all, the very manifestation of such social evil in a Constitutional Democracy like ours points out the defeat of the principles of equality in the light of unblemished patriarchal setup of the society and that of the Right to Life. However, in the opinion of the Author, the aforesaid Judgment rendered by the apex court is a strong warning for relatives to halt such harassment, and is suggestive of a tool for reforming the society and protecting the interests of the women and where the judgments are providing for such revolutionary outcomes, whether the people are being made aware about the same and whether they are implementing such guidelines in practice also needs to verified, if at all, the purpose of a law or the intent of the Judiciary is to be achieved and all forms of hatred, violence and ill-sentiments are to be done away with for establishing an egalitarian society.
Title Image Source: Vogue
This article has been written by Shrirang Ashtaputre and Sanjana Kulkarni. Both are final year students of ILS Law College Pune.