The Protection of Women
from Domestic Violence Act, 2005 is one of the first in this sphere.
This Act has concretely dealt with the problem of domestic violence
taking into consideration all the related laws and has attempted to reduce
the numerous ancillary problems generally faced by such
legislations. This legislation is well placed in the Indian context and
social scenario, clearly reflective of the mindset of the Indian men. This
commentary primarily looks into the provisions of this Act from
the constitutional perspective – the Fundamental Rights to be
particular. The main aim of the commentary is to bring to100 light the numerous rights, most of which
are constitutionally guaranteed, of women who are protected directly or
indirectly by this120
Act. The all-encompassing nature of the legislation is elucidated
among the other positive aspects of this law. The Act is thus a very vital piece
of legislation from the feminist perspective of law. However, one of
the main and primary criticisms of the writers is that this Act intentionally
or unintentionally neglects to address the issue of child abuse among male
children. This persisting problem having been left without any such specific
laws requires quick and immediate addressal.
Domestic violence200 is sadly a reality in Indian society. 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 that240 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 women300
with impunity. The role of the woman is to accept her ‘fate’ and the
violence employed against her meekly.
The Protection of Women
from 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 is360 the first substantial step
in the direction of defeating 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 in400 cases of domestic violence. However, the
kinds of domestic violence contemplated by this Act, and the
victims recognized 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 the480 respective acts of violence constituted
under the IPC without any regard to the gender of the victim.
This posed a500 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 Section 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 continue
staying in her matrimonial home and yet raise her voice against the violence perpetrated
against her. This, together with many other problems faced by women in the household,
prompted this600 enactment.
This commentary focuses on the constitutional perspectives of this progressive
legislation.
The Act, in a bold break
from prior legislations, gives a very expansive definition to the term
“domestic violence”, a term hitherto not even used in legal parlance.
Domestic violence is defined in a comprehensive way in Section 3 of the
Act, comprising physical, mental, verbal, emotional, sexual and economic abuse,
harassment for dowry, acts of threatening to abuse the victim or
any other person related to her.
The Act thus deals with
forms of abuse that were either not addressed earlier, or that were addressed
in ways700 not as broad as
done here. For instance, it includes in its ambit sexual abuse
like marital rape which, though720
excluded under the IPC, can now be legally recognised as a form of abuse under
the definition of sexual abuse in this Act. The definition also encompasses
claims for compensation arising out of domestic violence and includes
maintenance similar to that provided for under Section 125 of the Code of
Criminal Procedure. Nevertheless, the claim for compensation
is not limited to maintenance as allowed by that provision. It is noteworthy
that the maintenance available under this section must be in800 correspondence with the lifestyle of the
aggrieved party. Lastly, the Act identifies emotional abuse as a form of
domestic violence, including insults on account of the victim’s not having any
children or male children.
The enactment in question
was passed840 by the
Parliament with recourse to Article 253 of the Constitution. This provision
confers on the Parliament the power to make laws in pursuance of international
treaties, conventions, etc. The Domestic Violence Act was passed in
furtherance of the recommendations of the United Nations Committee on
the CEDAW. The Act encompasses all the provisions of the Specific
Recommendations which form900
a part of General Recommendation no.19 of 1992.
The Statement of
Objects and Reasons declares that the Act was being passed keeping in view
the fundamental rights guaranteed under Articles 14, 15 and 21. Article 21
confers the right to life and liberty in negative terms, stating that
it may not be taken away except by procedure established by law, 960 which is required, as a result of
judicial decisions, to be fair, just and reasonable. The right to life has been
held to include the right to be free of violence, the right to dignity, and the
right to shelter. 1000
Article 14 contains the
equal protection clause. It affirms equality before the law and the equal
protection of the laws. Article 14 prohibits class legislation, but permits classification
for legislative purposes. A law does not become unconstitutional simply
because it applies to one set of persons and not another. Where a law effects a
classification and is challenged as being violative of this Article, the law
may be declared valid if it satisfies two conditions.
First, the classification
must1080 be based on some intelligible
differentia. Second, there must be a rational nexus
between this differentia and the object sought to1100 be achieved by the law.
As a result of the ruling
in cases such as Royappa v. State of Tamil Nadu, any law that is arbitrary
is considered violative of Article 14 as well. 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. At the
same time, it preserves the State’s power to legislate for a
specific category of people.
Article 15 disallows discrimination
on the grounds of religion, caste, sex, race, etc., but permits the State to
make special provisions1200
for certain classes of persons, including women and children.
