The new Domestic Violence Act (DVA) has made some significant improvements
over the existing laws but it is not as if prior to this Act civil laws did not
exist to protect women's rights in the family. Astute and determined lawyers
have successfully pleaded and got adequate relief for their female clients under
the existing matrimonial, civil and criminal laws as the article by Flavia Agnes
The biggest shortcoming of this Act is its overweening ambition and lack of
sense of proportion. Ordinarily, when handling such deep rooted problems sincere
regimes start their interventions with more focused and manageable victimised
groups; they set themselves modest goals for dealing with blatant and clear cut
cases of abuse and bring those worst offenders to swift justice. For example,
they target their laws and welfare measures at those women who have suffered
severe physical injuries in their homes and are commonly recognised in their
communities as abused wives.
But what the framers of this Act have done is to anticipate all
possible ways that the law could protect all aggrieved females from any
and all sorts of harm and humiliation. At the same time they have put all
their faith in all women being essentially good and honest victims while
they view the government and the NGO networks as being capable of righting all
kinds of wrongs, and in using all the claims of all women to get
them justice, without worrying about proof of claims, or the current state of
the society and of the government machinery. It is as if the framers of this law
live in a Dreamland where wishful thinking is all that is needed to protect
women from all kinds of real and imagined harm. In the process we are likely to
see this law make a mockery of itself.
The Positive Aspects
A major plus point of this Act is that it acknowledges domestic violence as a
problem in itself rather than keeping it forcibly tied to the pallu of
anti dowry laws. The previous law carried an absurd assumption that domestic
violence was invariably linked to dowry demands and hence a new and exotic
variety of crime called "dowry death" was added to the statute book.
Consequently, lawyers, police, and even some women's organizations encouraged
women to register violence cases under the Anti Dowry Act even when there was no
basis to the allegations of dowry demands because they felt stringent provisions
of the anti dowry law made it easier for them to press charges and get a
sympathetic hearing. Thus our courts came to be filled with cases with
exaggerated or patently false charges of dowry demand related cruelty, while
other dimensions of cruelty got pushed under the carpet. This new law frees
women from the need to make bogus dowry related charges in order for their abuse
to be taken seriously. This may enable us to know the real face of domestic
violence in India and dispel the simplistic notion that dowry is the sole or
main cause of violence against women.
The DVA provides for comprehensive and speedy relief within a set time frame.
[See: Provisions For Speedy Relief, linked from below the
page]. So far the remedies available to a victim of domestic violence in the
civil courts and criminal courts vide Section 498A of the Indian Penal
Code (IPC) were limited.
Thus the earlier laws hinged mainly on threatening the use of penal
provisions to get the accused arrested and jailed on registration of a complaint
in order to negotiate relief with an allegedly abusive spouse. Many women learnt
to use the law to arm-twist their husbands to agree to financial settlements
before divorce. The new Act moves in the direction of providing positive
protection of women's civil and matrimonial rights, without using the threat
of imprisonment under criminal laws as the first step towards seeking
redress, as was the case with Section 498A. Under this law, imprisonment comes
as a second stage remedy.
Earlier, victimised women found it hard to get emergency relief unless a very
determined lawyer was willing to walk the extra mile and use the skillful
techniques described by Flavia Agnes elsewhere. But even in those cases they had
to combine legal means with extra-legal ones. Since court proceedings are
invariably protracted, the victim had to often live at the mercy of the abuser
or walk out of the house.
A major shortcoming of earlier laws against domestic violence was that they
assumed women are abused only in their roles as wives and daughters-in-law.
This new Act provides for swift, time bound and comprehensive civil remedies
for maintenance, right to the matrimonial home, protection against violence as
well as custody of children. It would have marked a significant improvement over
the earlier civil remedies available to abused women had the framers of this law
been more focused, realistic and balanced in their approach. However, it has
done very little to allay the fears of all those who have witnessed widespread
abuse and misuse of the existing laws against domestic violence. If anything, it
has added more reasons for concern and alarm.
Beneficiaries of this Law
Section 2(a) of the Act enables a woman to seek protection against any
adult male family member who has been in a domestic relationship with her. This
includes her own father, brother, her husband or male partner as well as his
male and female relatives. Thus, a father-in-law, mother-in-law, or even
siblings of the husband and other relatives can be proceeded against even if
they are not living under the same roof.
It also covers sisters, widows, mothers, daughters, women in relationships of
cohabitation, single women, adopted children, etc. The types of offenses that
would make fathers or brothers subject to the Act have been expanded in ways
that make it much easier for the women to enter a case under DVA. While this
marks an improvement, it has the potential to create very conflicting
situations. For example, what if a mother-in-law alleges abuse by her
daughter-in-law who in turn seeks an injunction against her mother-in-law? Given
that battles between women in the family tend to be no less ferocious than those
between spouses, this is not an unlikely scenario.
Under this law children can also file a case against a parent or parents who
are tormenting or torturing them physically, mentally, or economically. In case
the child is not in a position to approach the court on his/her own, "any
other person" can file a complaint on behalf of the child. The law does not
specify that a person has to be closely related or well known to the child in
order to qualify for filing a complaint on the child's behalf.
However, men are not entitled to seek relief under this Act, which is based
on the assumption that only women and children suffer domestic abuse. Thus an
old father-in law who may suffer abuse, taunts and even violence at the hands of
his son or daughter-in-law cannot get relief under this law while a mother-in
law supposedly can.
Definition of Abuse
Section 3 of the law defines "domestic violence" as any act/
conduct/omission/commission that harms or injures or has the potential to harm
or injure a woman or child. This law considers physical, sexual, emotional,
verbal, psychological, and economic abuse or threats of violence and abuse as
equally serious offences. The law lists out in detail different forms of
violence faced by women so that interpretation of what constitutes violence is
not left solely to the discretion of the judges. Even a single act of commission
or omission may constitute domestic violence. This has been done with the
intention that women should not be required to suffer a prolonged period of
abuse before the law takes them seriously.
The court may conclude that an offence has been committed by the accused upon
the sole testimony of the woman alleging abuse. Given that lying in court has
never been taken seriously enough to invoke punishment, laws which presume guilt
even before the trial has begun are prone to great misuse.
Physical Abuse is defined as any act or conduct which is of such a
nature as to cause bodily pain, harm, or danger to life, limb, or health, or an
act that impairs the health or development of the person aggrieved, or that
includes assault, criminal intimidation and criminal force.
Sexual Abuse is any "conduct of a sexual nature that abuses,
humiliates, degrades, or otherwise violates the dignity of woman." The law
also covers instances where a woman is forced to have sexual intercourse with
her husband against her will.
While it is important to respect a women's right to say 'No' to sex
even in a marriage, it is not easy to assess whether a particular sexual act is
against a woman's will or was with her consent, in case of married couples
especially if there are no signs of struggle or resistance on the woman's
Verbal and Emotional Abuse have been defined as "insults, ridicule,
humiliation, name-calling,especially with regard to not having a child or a male
child and; repeated threats to cause physical pain to any person in whom the
aggrieved person is interested." So, for example, if the abuser were to
threaten the children, or relatives of the woman, this will also be considered
an offence under this law.
However, putting verbal taunts or abuse at par with physical violence amounts
to very shoddy thinking. For example, calling someone a "moron" cannot be
treated at par with beating up a woman.
Economic Abuse: Even under existing laws, a woman is entitled to seek
maintenance for herself and her children from her husband. However, under the
new law, economic deprivation or denial of financial resources to which the
aggrieved woman or child is entitled under law or custom, or which the person
aggrieved requires out of necessity, now falls under the category of economic
Most important of all, under this provision a man cannot dispose of household
assets, nor can he alienate her assets, nor for that matter any other property,
in which the aggrieved person has an interest or entitlement by virtue of the
domestic relationship. Even a recent live-in partner can prevent a man from
selling his own property for his business requirements. This clause too is
likely to cause havoc, unless used judiciously.
The most important new element in this law is that it recognises live-in
relationships and offers the same degree of protection to a woman who is living
with a man without marriage. According to section 2(g), any relationship between
two persons who live, or have at any point of time lived together in a shared
household when they are related by marriage, consanguinity, or through a
relationship similar to marriage, or are family members living in a joint
family, is considered a "domestic relationship". It also protects women in
fraudulent or bigamous marriages, or in marriages considered invalid by law.
However, the law does not make explicit whether it also applies to same sex
marriages or gay relationships.
The wide ranging definition of "domestic relationship" may bring the
needed relief for those women whose husbands dupe them into cohabitation without
going through proper ceremonies and then dump them at will on the grounds that
theirs was not a valid marriage. But it has cast its net so wide that it leaves
enormous scope for flimsy claims with a view to harassment and blackmail.
The Act does not specify how long a couple has to have lived in the shared
household in order for a woman to claim benefit under the Act. Thus, as per the
letter of this law, a woman who may have lived with a man for two or three
months without being married to him can at any point seek relief under this law
at par with a legally wedded wife. This amounts to making a mockery of laws
against bigamy. The habitation rights of livein partners in the same house in
case of already married men cannot be protected in this way without serious
damage to the rights of legally married wives and their children. It is
perfectly legitimate to protect a woman from violence and punish a man for
inflicting it on her, whether or not she is married to the man. However, to give
her the right to claim maintenance and get injunctions barring her male partners'
entry into his own house is going a bit too far, especially if he already has a
wife and children living in that house.
No Eviction or Harassment
An important addition to the law ensures that an aggrieved wife or partner
who takes recourse to the law, and gets a "protection order" or an
injunction barring the entry of the husband into the house, cannot be harassed
for doing so. Thus, if a man is accused of any of the above forms of violence,
he cannot, during the pending disposal of the case prohibit/ restrict the wife's
or partner's continued access to resources or facilities to which she is
entitled by virtue of the domestic relationship, including access to the shared
household. If he does so he invites a fine of Rs 20,000 and/or a jail term of up
to one year.
Section 17 of the law, which gives all married women or female
partners in a domestic relationship the right to reside in a home that is known
in legal terms as the 'shared household', applies whether or not she has any
legal right, title or beneficial interest in the same.
Sections 18-23 provide a large number of avenues for an abused woman
to get relief. Courts are obliged to give her Protection Orders, Residence
Orders, Monetary Relief, custody of her children, Compensation Order and
Interim/ ex parte Orders.
The law provides that if an abused woman so desires, she has to be provided
alternative accommodation comparable to the standard of living she is used to
and in such situations. The cost of the accommodation and her maintenance has to
be paid for by her husband or partner. Thus there is provision for rapid
temporary rights for the woman pending disposal of the case. This makes perfect
sense as far as wives are concerned. But to put the same weapons in the hands of
a temporary live-inpartner amounts to letting our notion of gender justice run
haywire. In effect it means that a man has no right to break off a love affair
without paying through his nose.
A woman who is the victim of domestic violence will have the right to the
services of the police, shelter homes and medical establishments. She also has
the right to simultaneously file her own complaint under the existing laws
against domestic violence, such as Section 498A of the Indian Penal Code. Thus,
an accused person will be liable to have charges framed against him under both
the old law and the new one. Further, the offences are cognisable and non-bailable.
No Safeguards against Abuse of Law
It is unfortunate that despite widespread complaints of misuse of earlier
laws the new Act pays scant attention to building safeguards against malafide
use of 498A and the anti-dowry laws. All it has done is to pile on more
provisions with similar potential for abuses.
Section 498A of IPC enacted in 1983 defined "cruelty by husband or
relatives of husband" as a new cognizable offence. As in the new DVA, under
Section 498A too, cruelty was given a very wide ranging definition to include
violence that leads to bodily harm, or danger to life, limb or physical health,
but also includes endangerment of mental health, harassment and emotional
torture through verbal abuse.
In addition, Section 498A made it obligatory for the police to take prompt
action and arrest all those named by a woman alleging cruelty by her husband and
in laws. The bail in such cases could be opposed and delayed. Thus in many cases
those accused of "cruelty" to wives or daughters-in-law got punished even
before the trial actually began.
Given the corrupt and lawless ways of police, this provision came to be
misused and abused widely by the police to extract bribes as well as by
unscrupulous women and their lawyers to blackmail the groom's family even on
trumped up charges. Manushi
has dealt with numerous cases whereby innocent men and their families have been
devastated by unscrupulous wives and daughters-in- law.
It is not just men but even a lot of women, who have suffered the
consequences of irresponsible use of Section 498A, believe that it is extremely
one sided and an instrument of blackmail rather than of securing justice. On the
other hand many genuine victims of violence hesitate to seek legal redress under
498A because it would mean getting their husbands and in laws sent behind bars.
While many kids may support their abused mother in seeking divorce, most do not
support their mothers in getting their fathers sent to jail even if they have
personally been victims of abuse because having a father convicted and sent to
jail mars and stigmatises the life of children as well (See my article: "Underused
and Abused: Laws against Domestic Violence" in issue No. 120 also available on
So deep is the reaction against this easy-to-manipulate-law that in recent
years senior police officers, including women officers in-charge of Crime
Against Women Cells (CAWCs), have let it be known to those handling such cases
to go slow on booking cases under 498A. This means even genuine cases of abuse
end up being viewed with mistrust.
Section 8 of the law provides for the creation, and stipulates the
responsibilities of Protection Officers (POs).
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