March 03, 2021
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Review Essay

Dreamland Delusions

The new Domestic Violence Act is well-intentioned but over-ambitious—as if wishful thinking is all that is needed to protect women from all kinds of real and imagined harm. We are likely to see this law make a mockery of itself.

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Dreamland Delusions
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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 demonstrates. But, the tardiness of court procedures and judicial bias often resulted in miscarriage of justice.

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. They could file for divorce under civil law and or get the abusive spouse arrested and tried for cruelty under Section 498A of the Indian Penal Code.

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. The new Act takes a more balanced and nuanced view of domestic abuse by including daughters, sisters, mothers, mothersin- law, sisters-in-law and even grandmothers in its purview. As the story of Pratima Singh in this issue, illustrates, a woman can also be brutally victimised by her own father. Many women are also victimised by their sons and daughters-in-law, especially if widowed.

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 body.

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 abuse. A husband would be held guilty of economic abuse if he were to sell or use her stridhan (dowry), her jewelry and/or any other property jointly or separately held by the wife. But the law does not specify what happens if a certain asset has been alienated with the written consent of the wife but later she makes a case that it was done against her will.

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.

Live-In Relationships

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 the Manushi website).

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.

Implementation Machinery

Section 8 of the law provides for the creation, and stipulates the responsibilities of Protection Officers (POs).


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