Woman Can Also Be Prosecuted Under Laws On Domestic Violence

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Parul Madaan 6 Feb 2020

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Woman Can Also Be Prosecuted Under Laws On Domestic Violence

Scope of the Protection of Women from Domestic Violence Act,

The significance of this piece of legislation was clarified by the High Courts and the Supreme Court in India in a series of judgments. In a recent judgment, the Gujarat High Court in the case of Bhartiben Bipinbhai Tamboli v. Gujrat State and Ors, R/SCR.A/5672/2016 after reviewing thoroughly the provisions of the Domestic Violence Act, has held that:

In this country, domestic violence is rampant and several women encounter violence in some form or the other, or almost daily. It is the least-reported type of cruel behavior, however. A woman resigns her fate as a daughter, a sister, a wife, a mom, a husband, a single woman in her lifetime to the never ending cycle of enduring violence and discrimination.

This non-women's retaliation coupled with the absence of legislation addressing women's issues, ignorance of existing women's laws, and societal attitude makes women vulnerable. The reason why most cases of domestic violence are never recorded is due to the social stigma of the society and the mindset of the women themselves, where women are expected to be subordinate, not only to their male counterparts but also to the male relatives.

The remedies available to a victim of domestic violence have been limited until the year 2005. Either the women had to go to the civil court for a divorce decree or initiate prosecution in the criminal court for the offense punishable under IPC Section498A. No emergency relief for the victim is available in both proceedings. There was also no recognition of the relationships outside of the marriage.

This set of circumstances ensured a majority of women preferred to suffer in silence, not out of choice but out of compulsion. With all these facts in mind, Parliament considered it fit to enact an came to be known as The Protection of Women from Domestic Violence Act, 2005(hereinafter known as “The Act”). The Act's main object is to protect women from a man or / and a woman's violence. It is a progressive law whose sole purpose is to protect women regardless of the relationship that she shares with the accused. Under the Act, the concept of an aggrieved individual is so broad that it includes even women who live in a relationship with their partners within its purview.

Domestic Violence – Section 3 of the Act, describes the term 'domestic violence.' The definition has a large range and encompasses all types of abuse against women. This includes physical, sexual, verbal and emotional abuse, as well as economic abuse.

The sections read as follows-

For this Act, any act, omission or commission or conduct of the respondent shall constitute domestic violence in case it—

Harms or injures or endangers the health, safety, life, limb or well‑being, whether mental or physical, of the aggrieved person or tends to do so and includes causing physical abuse, sexual abuse, verbal and emotional abuse, and economic abuse; or

2. Harasses, harms, injures or endangers the aggrieved person to coerce her or any other person related to her to meet any unlawful demand for any dowry or other property or valuable security; or

3. Has the effect of threatening the aggrieved person or any person related to her by any conduct mentioned in clause (a) or clause (b); or

4. Otherwise, injuries or causes harm, whether physical or mental, to the aggrieved person.

1. Who is allowed to make a complaint under the 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 Act protects not only those women who are or have been in a relationship with the abuser, but also those women who have lived together in a shared household and who are linked through consanguinity, or through a marriage or adoption arrangement.

In the Act, even those women who are sisters, widows, mothers, single women or living in any other relationship with the abuser have the right to legal protection.

Women in Live in relationships covered under the Act

The Supreme Court in the case D. Veluswamy v. D. Patchaiammal (2010) 10 SCC 469, placed a broader meaning on an "aggrieved individual" under Section 2(a) of the Domestic Violence Act in which the Court mentioned as follows five ingredients of a living in relationship:

1. The parties must behave as husbands and wives and are known in front of society as husbands and wives.

2. They must be of a valid legal age of marriage.

3. At the time of entering a relationship, no partner should have a sous living.

4. They must have willingly 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. The above-mentioned conditions shall be satisfied in order to obtain such profit and this must be proven by proof.

Status of a Keep- The Court stated that if a man has a' keep' which he financially retains and uses only for sexual purposes and/or a servant it would not be a partnership in the nature of marriage.

The Court also referred in this case to the word "palimony" which means providing maintenance to a woman who has lived with a man without marriage for a substantial period of time, and who is then abandoned by him.

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

The 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 scope of the term respondent covering an adult male person, the judiciary has been confronted time and time again with the contention that an aggrieved person can file a complaint only against an adult male person under the Domestic Violence Act and not against the husband's female relatives, i.e. mother-in-law, sister-in-law.

However, in Sandhya Wankhede v. Manoj Bhimrao Wankhede (2011) 3 SCC 650 case, the Supreme Court put the issue to rest on the grounds that the provisions of Section 2(q) do not preclude husband's or male partner's female relatives from the scope of a lawsuit that may be lodged under the Domestic Violence Act.

Not only men but women can also be prosecuted under the Domestic Violence Protection Act (DV). The Supreme Court revoked the words "adult male" from the relevant provision in the DV Act to establish that a woman may also lodge a complaint against another woman, accusing her of domestic violence.

Under Section 2(q) of the 2005 Act, a complaint may only be lodged against an "adult male individual," thus insulating women from being convicted of the offenses referred to in the statute.

But a bench of Justices Kurian Joseph and Rohinton F Nariman ruled that this clause violated the legislation's purpose because "domestic violence perpetrators and abettors" can also be women.

It acknowledged that the statutory intent to provide effective protection for women's rights could easily be defeated by an adult male person who is not in the forefront, but brings forward female persons who could forcefully evict a woman or defeat any other order passed under the act without fear of calling for prosecution.

The bench held:

“The microscopic difference between male and female, adult and non-adult, regard had to the object sought to be achieved by the 2005 Act, is neither real or substantial nor does it have any rational relation to the object of the legislation. In fact, the words ‘adult male person’ are contrary to the object of affording protection to women who have suffered from domestic violence of any kind”

The court ruled “We, therefore, strike down the words ‘adult male’ before the word ‘person’ in Section 2(q), as these words discriminate between persons similarly situated, and far from being in tune with, are contrary to the object sought to be achieved by the 2005 Act,”

The bench resorted to the "doctrine of severability" and only struck down that part of Section 2(q) which produced a gender-based distinction in relation to offenders under the Act. “Application of the aforesaid severability principle would make it clear that having struck down the expression ‘adult male’ in Section 2(q), the rest of the Act is left intact and can be enforced to achieve the object of the legislation without the offending words,” it held

Hiral P. Harsora And Ors vs Kusum Narottamdas Harsora And Ors, Ct. 28 CRR 1795 of 2017

“Pursuant to the provisions of the DV Act, a complaint against a daughter-in-law, a daughter or a sister could be maintained if they were a co-respondent in a complaint against an adult male who is or has been in a domestic relationship with the complainant and that co-respondent.”