OBJECTIVES OF PROTECTION OF WOMEN FROM DOMESTIC VIOLENCE ACT, 2005

Objective of the Protection of Woment from Domestic Violence Act, 2005 is to give effective protection to women guaranteed under the Constitution, who are victims of violence of any kind occurring within the family. The Constitution grants equal rights to men and women. The Constitutional guarantee will remain only utopian in nature, if that guarantee is not given effect by the state. Several initiatives had already been taken by the state for protection of women in form of Dowry Prohibition Act, 1961, Sections 498A and 304B of Indian Penal Code, 1860. These initiatives are mainly concerned with protecting women in their matrimonial home. Focus of these legislations was punishment to the accused persons and not on rehabilitation of the victim. There was need of a legislation, which could provide comprehensive reliefs to women against violence occurring within the family, whether in the parental home or in matrimonial home.

UNITED NATIONS INITIATIVES

Discrimination against women is an international phenomena. The United Nations have taken several initiatives for empowerment of women. The some of important initiatives taken by the United Nations are as under:

• Convention of Elimination of all forms of discrimination against women (1989)
• The Vienna Accord (1994)
• Beijing Declaration and the Platform for Action (1995)

THE CONVENTION ON ELIMINATION OF ALL FORMS OF DISCRIMINATION AGAINST WOMEN (CEDAW)

The convention on elimination of all forms of discrimination against women has been adopted by the United Nations General Assembly in 1979. 189 countries have ratified the said convention. It is regarded as international bill of rights for women. This convention is great stride towards gender equality and women empowerment. Article 1 of the convention defines discrimination against women as under:

For the purposes of the present Convention “the discrimination against women” shall mean any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of their marital status, on a basis of equality of men and women, of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field.

The convention has 30 sections and divided into six parts. Part I of the Convention deals with non-discrimination, sex stereotypes, and sex trafficking. Part II deals with women’s rights in the public sphere with an emphasis on political life, representation and rights to nationality. Part III of the convention deals with the economic and social rights of women particularly on education, employment and health. Part IV of the convention deals with women’s right to equality in marriage and family life along with the right of equality before law. Part V of the Convention deals with establishment of the committee on the elimination of discrimination against women as well as the states parties’ reporting procedure. Part VI deals with the effects of convention on other treaties, the commitment of the state parties and the administration of the convention.

The convention as such has not dealt specifically with domestic violence, but has focused on elimination of discrimination of all kinds whether political, social and economic. It is a fact that women in many societies and culture do not have equal rights in comparison to that of men. One of the major reasons of violence, including domestic violence, is discrimination prevalent in society against women. If women are politically, socially and economically empowered then automatically it will result in decrease and elimination of incidences of domestic violence.

VIENNA DECLARATION AND PROGRAMME OF ACTION

The World Conference on Human Rights adopted Vienna Declaration and Programme of Action in 1993. It again confirmed the universal nature of human rights. It further declared that all human rights are universal, indivisible, interdependent and inter-related. The Vienna Declaration and Programme of Action interalia emphasized on the equal status and human rights of women. The convention also emphasized elimination of violence against women in public and private life. Para 38 of Vienna Declaration and Programme of Action sheds light on the issue of violence against women. Para 38 is reproduced as under:

38.In particular, the World Conference on Human Rights stresses the importance of working towards the elimination of violence against women in public and private life, the elimination of all forms of sexual harassment, exploitation and trafficking in women, the elimination of gender bias in the administration of justice and the eradication of any conflicts which may arise between the rights of women and the harmful effects of certain traditional or customary practices, cultural prejudices and religious extremism. The World Conference on Human Rights calls upon the General Assembly to adopt the draft declaration on violence against women and urges States to combat violence against women in accordance with its provisions. Violations of the human rights of women in situations of armed conflict are violations of the fundamental principles of international human rights and humanitarian law. All violations of this kind, including in particular murder, systematic rape, sexual slavery, and forced pregnancy, require a particularly effective response.

Thus Vienna Declaration was an important instrument against violence against women. Through this Declaration, the states were urged to combat violence against women.

BEIJING DECLARATION AND PLATFORM FOR ACTION

Fourth World Conference on Women was held at Beijing, China in 1995. Beijing Declaration and Platform of Action was adopted at the said conference, which is one of the most progressive blueprint for advancing women’s rights. The Beijing Declaration and platform for action is a comprehensive document for realizing gender equality and empowerment of women. Beijing Declaration and Platform for Action advocates intervention by various stakeholders like Governments, Non-governmental Organisations, International Organisations etc. in 12 critical areas i.e. poverty, education and training, health, violence, armed conflict, economy, power and decision making, institutional mechanism for advancement of women, human rights, media, environment and the girl child.

The issue of violence against women, including domestic violence, has been emphasized under the Beijing Declaration and Platform for Action. The Beijing Declaration showed its determination to prevent and eliminate all forms of violence against women and girls.

The platform of Action suggested strategic actions by various stakeholders including Governments, Non-governmental organizations and International Organizations. One of important feature of the Platform of Action was that the Governments were directed inter alia to take legislative measures to eliminate violence against women.

Aforesaid international initiatives were also relevant factors for the enactment of Protection of Women from Domestic Violence Act, 2005. Indian Courts have taken note of these international initiatives while interpreting the provisions of the Protection of Women from Domestic Violence Act, 2005. High Court of Delhi in Aruna Parmod Shah Vs. Union of India; 2008(102)DRJ543 has observed as under:

4. Domestic violence is a worldwide phenomenon and has been discussed in International fora, including the Vienna Accord of 1994 and the Beijing Declaration and the Platform for Action (1995). The United Nations Committee Convention on Elimination of All Forms of Discrimination against Women (CEDAW) has recommended that States should act to protect women against violence of any kind, especially that occurring within the family. There is a perception, not unfounded or unjustified, that the lot and fate of women in India is an abjectly dismal one, which requires bringing into place, on an urgent basis, protective and ameliorative measures against exploitation of women. The argument that the Act is ultra virus the Constitution of India because it accords protection only to women and not to men, is therefore, wholly devoid of any merit. We do not rule out the possibility of a man becoming the victim of domestic violence, but such cases would be few and far between, thus not requiring or justifying the protection of parliament.

INADEQUACY OF DOMESTIC LEGAL FRAMEWORK TO DEAL WITH DOMESTIC VIOLENCE

Domestic violence has been widely prevalent in Indian society, but it has been largely invisible in the public domain. Although various laws have been enacted for protection of women, as yet they were not sufficient to deal with violence occurring within the family. Dowry Prohibition Act, 1861, Section 498A & 304B of the Indian Penal Code, 1860, and Section 125 of Code of Criminal Procedure, 1973 are major interventions for protection of women. These interventions have definitely helped in providing reliefs to women, but they have been unsuccessful in providing a comprehensive solution to deal with domestic violence suffered by women.

DOWRY PROHIBITION ACT, 1961

Dowry has grown as deep rooted social evil because of social and cultural factors. Dowry demand by in-laws of women is widely prevalent in India. Women in India frequently face domestic violence in connection with demand of dowry. Women are taunted, harassed, beaten and even killed for not bringing sufficient dowry. Women are coerced to demand dowry from their parents. The Supreme Court in Kamlesh Panjiyar Vs. State of Bihar; (2005)2SCC388 has observed as under:

2. Marriages are made in heaven, is an adage. A bride leaves the parental home for the matrimonial home, leaving behind sweet memories therewith a hope that she will see a new world full of love in her groom’s house. She leaves behind not only her memories, but also her surname, gotra and maidenhood. She expects not only to be a daughter-in-law, but a daughter in fact. Alas! the alarming rise in the number of cases involving harassment to the newly wed girls for dowry shatters the dreams. In-laws are characterized to be outlaws for perpetrating terrorism which destroys the matrimonial home. The terrorist is dowry, and it is spreading tentacles in every possible direction.

To fight with this social evil of dowry, Dowry Prohibition Act, 1961 was enacted to prohibit giving or taking of dowry. Dowry was defined as property or valuable security given by one party, parents of one party or any other person to other party, parents of other party or any other person before the marriage, at the time of marriage or after the marriage in connection of marriage of parties. Giving, taking and abetment of dowry were made punishable with minimum imprisonment of 5 years and with fine not less than fifteen thousand or amount of value of such dowry, whichever was more. Demand of dowry was also made punishable with imprisonment of minimum 6 months which may extend to two years and fine which may extend to ten thousand rupees.

Dowry Prohibition Act, 1961 was a progressive legislation but it has not been an effective legislation as collection of evidence regarding to giving and taking of dowry is difficult. Presents given to the bride or bridegroom have been exempted subject to the condition that a list of presents shall be prepared. As per the Act, such presents have to be customary in nature and value of presents should not be excessive with regard to financial status of such person. It is uphill task for any person to judge what is a financial capacity of a person is and whether presents given by him are in excess of his capacity.

SECTION 498A OF INDIAN PENAL CODE, 1860

In light of increasing dowry deaths, Parliament vide the Criminal Law (Second) Amendment Act, 1983, inserted 498A in Indian Penal Code, 1860. The said amendment protects married women against cruelties inflicted by husband and his relatives. Cruelties inflicted by the husband and his relatives were made punishable up to three years imprisonment. Section 498A of the Indian Penal Code, 1860 reads as under:

498A. Husband or relative of husband of a woman subjecting her to cruelty – Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punishable with imprisonment for a term which may extend to three years and shall also be liable to fine.

Explanation.-For the purpose of this section, “cruelty” means- (a) any willful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of woman; or (b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.

Under section 498A of the Indian Penal Code, 1860, husband and relatives of husband, who subject a woman to cruelty, can be prosecuted. Cruelty has been defined as willful conduct of the husband or relative of the husband which drives woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of woman. Cruelty also includes harassment in form of coercion by husband or relative of the husband for unlawful demand of property or valuable security or harassment by husband or relative of the husband for non-fulfillment of such unlawful demand of property or valuable security

Although introduction of 498A of Indian Penal Code, 1860 was a progressive step in fighting domestic violence against women, it has certain limitations. Firstly, definition of cruelty did not cover various aspects of domestic violence. Secondly, only married women have been covered Section 498A and hence only domestic violence perpetrated within matrimonial home was addressed under this provision. Thirdly, it is only a penal remedy and does not provide any constructive support to the aggrieved women. Punishment meted out to an accused does not in any way help in rehabilitation of victims of domestic violence. An aggrieved woman is in need of various kinds of reliefs in forms of protection, maintenance, residence, Compensation etc.

SECTION 304 B OF INDIAN PENAL CODE

Dowry deaths are worst kind of crime. Despite enactment of Dowry Prohibition Act, 1961 and inclusion of 498 A in the Indian Penal Code, 1860, instances of dowry deaths were increasing in the society. In case of dowry deaths, generally family members are involved and direct evidence for such crime is not always available. In such a scenario need was felt for creating a new offence of dowry death. Section 304 B was introduced in the Indian Penal Code, 1860 vide Dowry Prohibition (Amendment) Act, 1986. Section 304 B of Indian Penal Code, 1860 reads as under:

304B. Dowry death: (1) Where death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown than soon before her death she was subjected to cruelty or harassment by her husband or nay relative of her husband or any relative of her husband for, or in connection with, any demand for dowry, such death shall be called “dowry death” and such husband or relative shall be deemed to have caused her deaths.

Explanation: For Purpose of this sub-section, “dowry” shall have the same meaning as in section 2 of the Dowry Prohibition Act, 1961 (28 of 1961).

(2) Whoever commits dowry death shall be punished with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life.

Under section 304 B of Indian Penal Code, 1860, dowry has been given the same meaning as given in Dowry Prohibition Act, 1961. For a crime to be covered in under Section 304 B four ingredients are necessary. Firstly, death of a woman is either by burns or by bodily injury or otherwise than under normal circumstances, Secondly, It should be within seven years of marriage, Thirdly it should be shown that soon before her death she was subjected to cruelty or harassment by husband or any relative of husband, Fourthly such harassment or cruelty should pertain to demand for dowry. Minimum punishment under the said provision is 7 years which may extend to imprisonment for life.

Indian Evidence Act, 1872 was also amended to incorporate Section 113 B. Section 113B of the Indian Evidence Act reads as under:

113B. Presumption as to dowry death: When the question is whether a person has committed the dowry death of a woman and it is shown that soon before her death such woman has been subjected by such person to cruelty or harassment for , or in connection with, any demand for dowry, the Court shall presume that such person had caused the dowry death.

Explanation: For the purposes of this section “dowry death” shall have the same meaning as in section 304B of Indian Penal Code (45 of 1860).

Under section 113B of Indian Evidence Act, 1872, a presumption was created that if woman has been subjected to cruelty or harassment for, or in connection with demand for dowry by any person; such person has caused dowry death. This section was introduced in light of the fact that dowry death is caused by close family members and availability of evidence is difficult in such circumstances.

Section 304B of Indian Penal Code, 1860 addresses issues of serious nature of domestic violence in form of dowry death. But the focus of this Section is also on punishment of accused and not on protection and rehabilitation of the victim.

SECTION 125 OF CODE OF CRIMINAL PROCEDURE, 1973

Section 125 of Code of Criminal Procedure provides civil reliefs in form maintenance to wives, children and parents. It is one of the earliest remedies available under law which provides safety to women against economic deprivation. Being a criminal legislation, it is applicable to everyone irrespective of their personal laws. A woman can also avail interim maintenance under Section 125 of Code of Criminal Procedure, 1973 during pendency of proceedings.

Section 125 of Code of Criminal Procedure, 1973 has been one of most availed sections by women for availing security against economic deprivation in form of maintenance. But it only provides partial relief to women against economic deprivation. It does not provide women right to enjoy economic resources of the shared household, right to residence, compensation, other monetary reliefs etc.

ARTICLE 14, 15 & 21 OF.THE CONSTITUTION

The Constitution grants equal rights to both men and women. Constitution empowers the state to make special provisions for women as women have faced discrimination in the past and some initiatives are required for betterment of their position in the society.

Article 14 stipulates that state shall not deny to any person equality before law or the equal protection of laws within the territory of India. Article 15 stipulates that the state shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them.

In Shayara Bano vs. Union of India and Ors (2017) 9 SCC 1 the Supreme Court has observed that the Indian State is committed to gender equality. Relevant para of the said judgment reads as under :

186. We have considered the submissions advanced on behalf of the petitioners, pointedly with reference to international conventions and declarations. We have not the least doubt, that the Indian State is committed to gender equality. This is clear mandate of Article 14 of the Constitution. India is also committed to eradicate discrimination on the ground of sex. Article 15 and 16 of the Constitution, prohibit any kind of discrimination on the basis of sex. There is therefore no reason or necessity while examining the issue of ‘talaq-e-biddat’ to fall back upon international conventions and declarations.

Article 15 (3) stipulates that nothing in this article shall prevent the state from making any special provision for women and children. Supreme Court in Govt. of A.P. vs. P.B. Vijaykumar (1995)4SCC520 has observed that Article 15(3) has been placed under Article 15 to bring effective equality between men and women. Relevant para reads as under:

7. The insertion of Clause (3) of Article 15 in relation to women is recognition of the fact that for centuries, women of this country have been socially and economically handicapped. As a result, they are unable to participate in the socio-economic activities of the nation on a footing of equality. It is in order to eliminate this socio-economic backwardness of women and to empower them in a manner that would bring about effective equality between men and women that Article15(3) is placed in Article 15. Its object is to strengthen and improve the status of women. An important limb of this concept of gender equality is creating job opportunities for women. To say that under Article 15(3), job opportunities for women cannot be created would be to cut at the very root of the underlying inspiration behind this Article. Making special provisions for women in respect of employment or posts under the State is an integral part of Article 15(3). This power conferred under Article 15(3) is not whittled down in any manner by Article 16.

Article 21 stipulates that no person shall be deprived of his life or personal liberty except according to procedure established by law. Article 21 has been liberally interpreted by courts and it has been held that Right to enjoy life through limbs and faculties and right to dignified life is covered under Article 21 of the Constitution of India.

In Francis Coralie Mullin vs. Administrator, Union Territory of Delhi; 1981 AIR 746 the Supreme Court has held that right to life includes right to enjoy life through limb and faculties:

7. Now obviously, the right to life enshrined in Article 21 cannot be restricted to mere animal existence. It means something much more than just physical survival.

In Kharak Singh v. State of Uttar Pradesh [1964] 1 S.C.R. 232 Subba Rao J. quoted with approval the following passage from the judgment of Field J. in Munn v. Illinois [1877] 94 U.S. 113 to emphasize the quality of life covered by Article 21.

By the term “life” as here used something more is meant than mere animal existence. The inhibition against its deprivation extends to all those limbs and faculties by which life is enjoyed. The provision equally prohibits the mutilation of the body or amputation of an arm or leg or the putting out of an eye or the destruction of any other organ of the body through which the soul communicates with the outer world.

and this passage was again accepted as laying down the correct law by the Constitution Bench of this Court in the first Sunil Batra case (supra). Every limb or faculty through which life is enjoyed is thus protected by Article 21 and a fortiori, this would include the faculties of thinking and feeling. Now deprivation which is inhibited by Article 21 may be total or partial, neither any limb or faculty can be totally destroyed nor can it be partially damaged. Moreover it is every kind of deprivation that is hit by Article 21, whether such deprivation be permanent or temporary and, furthermore, deprivation is not an act which is complete once and for all: it is a continuing act and so long as it lasts, it must be in accordance with procedure established by law. It is therefore clear that any act which damages or injures or interferes with the use of, any limb or faculty of a person, either permanently or even temporarily, would be within the inhibition of Article 21.

Women have fundamental right to decide her sexual autonomy. Marriage does not mean ceding sexual automony to husband. In Joseph Shine vs. Union of India; AIR2018SC4898 the Supreme Court has observed as under:

59. In criminalizing adultery, the legislature has imposed its imprimatur on the control by a man over the sexuality of his spouse. In doing that, the statutory provision fails to meet the touch stone of Article 21. Section 497 deprives a woman of her autonomy, dignity and privacy. It compounds the encroachment on her right to life and personal liberty by adopting a notion of marriage which subverts true equality. Equality is subverted by lending the sanctions of the penal law to a gender biased approach to the relationship of a man and a woman. The statute confounds paternalism as an instrument for protecting marital stability. It defines the sanctity of marriage in terms of hierarchical ordering which is skewed against the woman. The law gives unequal voices to partners in a relationship.

This judgment has dwelt on the importance of sexual autonomy as a value which is integral to life and personal liberty under Article 21. Individuals in a relationship, whether within or outside marriage, have a legitimate expectation that each will provide to other the same element of companionship and respect for choices for sexual autonomy, it must be emphasized is founded on the equality between spouses and partners and the recognition by each of them of the dignity of the other. Control over sexuality attaches to the human element in each individual. Marriage- whether it be a sacrament or contract- does not result in ceding of the autonomy of one spouse to another.

In Santistar Builder v. N.KI. Totame; (1990) 1 SCC 520 the Supreme Court has held that Right to Shelter is also a fundamental right. The relevant para is reproduced as under:

9. Basic needs of man have traditionally been accepted to be three-food, clothing and shelter. The right to life is guaranteed in any civilized society. That would take within its sweep the right to food, the right to clothing, the right to decent environment and a reasonable accommodation to live in. The difference between the need of an animal and a human being for shelter has to be kept in view. For the animal it is the bare protection of the body; for a human being it has to be a suitable accommodation which would allow him to grow in every aspect – physical, mental and intellectual. The Constitution aims at ensuring fuller development of every child. That would be possible only if the child is in a proper home. It is not necessary that every citizen must be ensured of living in a well- built comfortable house but a reasonable home particularly for people in India can even be mud-built thatched house or a mud- built fire-proof accommodation.

Article 21 has been also interpreted to include right to dignity. A woman has right to lead a dignified life. In State of Madhya Pradesh vs. Madanlal; ( 2015) 7 SCC 681, the Supreme Court observed as under:

16. The aforesaid view was expressed while dealing with the imposition of sentence. We would like to clearly state that in a case of rape or attempt of rape, the conception of compromise under no circumstances can really be thought of. These are crimes against the body of a woman which is her own temple. These are offences which suffocate the breath of life and sully the reputation. And reputation, needless to emphasize, is the richest jewel one can conceive of in life. No one would allow it to be extinguished. When a human frame is defiled, the “purest treasure”, is lost. Dignity of a woman is a part of her non-perishable and immortal self and no one should ever think of painting it in clay. There cannot be a compromise or settlement as it would be against her honour which matters the most. It is sacrosanct. Sometimes solace is given that the perpetrator of the crime has acceded to enter into wedlock with her which is nothing but putting pressure in an adroit manner; and we say with emphasis that the Courts are to remain absolutely away from this subterfuge to adopt a soft approach to the case, for any kind of liberal approach has to be put in the compartment of spectacular error. Or to put it differently, it would be in the realm of a sanctuary of error. We are compelled to say so as such an attitude reflects lack of sensibility towards the dignity, the elan vital, of a woman. Any kind of liberal approach or thought of mediation in this regard is thoroughly and completely sans legal permissibility.

The Supreme Court in Justice K.S.Puttaswamy (Retd) vs Union of India and Ors.; ( 2017 ) 10 SCC 1 has held that individual is focal point of the Constitution. Human dignity is an integral part of the Constitution. The Supreme Court has observed as under:

96. over the last four decades, our constitutional jurisprudence has recognized the inseparable relationship between protection of life and liberty with dignity. Dignity as a constitutional value finds expression in the Preamble. The constitutional vision seeks the realization of justice (social, economic and political); liberty (of thought, expression, belief, faith and worship); equality (as a guarantee against arbitrary treatment of individuals) and fraternity (which assures a life of dignity to every individual). These constitutional precepts exist in unity to facilitate a humane and compassionate society. The individual is the focal point of the Constitution because it is in the realization of individual rights that the collective well being of the community is determined. Human dignity is an integral part of the Constitution. Reflections of dignity are found in the guarantee against arbitrariness (Article 14), the lamps of freedom (Article 19) and in the right to life and personal liberty (Article 21).

Central and State Governments have taken various legislative and policy initiatives to implement the Constitutional mandate for empowerment and emancipation of women. The Protection of Women from Domestic Violence Act, 2005 is another one of the landmark initiative to give effect to Constitutional mandate under Article 14, 15 and Article 21.

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