“Bas ek thappad, par nahi mar sakta”, this dialogue from the movie Thappad captured the essence of prolonging debate around domestic violence and also vocalized how it is becoming the new normal, across all sections of society; rich or poor, privileged or marginalized. Although there has been a significant evolution in the family structures, women are now becoming the breadwinners of the families but much remains to be done to assure protection of women from the violence that occurs within the four walls.
Various reports and studies showed that during the COVID-19 imposed lock-down, cases of domestic violence have increased manifold and termed this as a “Shadow Epidemic”. Hence, the need of the hour is to educate the public in an easy to understand and practical manner about domestic violence, its forms, redressal, reporting and the authorities under the law which can assist them. The present article is an attempt to simplify the nuances of domestic violence and the law governing it to a non legal reader.
Genesis of PWDVA
Article 15 (3) to the Constitution of India empowers the legislature to make special provisions for women and children. In exercise of this power, the Parliament enacted, The Protection of Women from Domestic Violence Act, 2005 (PWDVA), a beneficial and affirmative enactment for the realization of the constitutional rights of women and to protect them against any kind of domestic violence.
It was passed in furtherance of the recommendations of the United Nations Committee on The Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), also known as the International Bill of Rights for Women. The Act aims to provide for more effective protection to females against domestic violence and domestic abuse.
Prior to PWDVA, issues of domestic violence were covered by the provisions of Indian Penal Code 1860, particularly Section 498A or the Dowry Prohibition Act 1861, as the case may be, to bring criminal charges against the perpetrator. However, there were no provisions to provide immediate relief or protection to the victims.
PWDVA filled these gaps and provided for a multi-support system to the victims of domestic violence by granting monetary and non-monetary reliefs. An interesting feature of the Act is the shift from the adversarial system to a more inclusive system where the courts with the aid of Protection Officers play a more proactive role in domestic violence cases.
The introduction of Protection Officers to the stakeholders has resulted in increasing the accessibility of the Act and enforcing the aggrieved women’s right to live in the shared household, right to claim maintenance and right to custody over children.
Defining Aggrieved Person and Respondent under the Act
The definition of “aggrieved person” under the PWDVA includes any woman who is or has been in a domestic relationship and alleges to have been subjected to domestic violence. The aggrieved person may be any of the following:
- Married Women
- Unmarried Women (Daughters, Sisters, etc.)
- Women in a live-in relationship
The definition of “respondent” under the Act, includes any adult male who has been or is in a domestic relationship with the aggrieved woman, and against whom the woman has sought a relief.
The respondent is any adult member of the shared household who commits an act of domestic violence against a woman in that household and can be either:
- Husband
- Relative of the husband living in the shared household with the woman
- Son
- Brother
- Father
- Live-in-partner
- Relative of the live-in-partner living in the shared household with the woman
It is noteworthy that domestic relationship includes consanguinity, marriage, or through a relationship in the nature of marriage, adoption or family members living together as a joint family.
The Supreme Court in S. Khushboo v. Kanniammal (2010)has clarified that a live-in relationship is permissible only in unmarried persons of major age in heterogeneous relationships. The Act has kept the same sex relationships and live-in-relationships of minors out of the ambit of the Act.
Live-in-relationship and domestic violence
A live-in-relationship may be considered a “relationship in the nature of marriage” for the purpose of PWDVA, if the following conditions are met, as laid down in Indra Sarma v. VKV Sarma (2013):
1. The couple has voluntarily cohabited for a significant period of time in a shared household. It may be a few months, or years, depending upon the circumstances of each case;
2. The couple has been living as husband and wife in front of family, friends, relatives, neighbours or society;
3. The couple has a sexual relationship that includes emotional and intimate support. In case, the couple has begotten a child, this is evident of their commitment towards a long term partnership in the nature of marriage;
4. The domestic and financial arrangement of the couple is similar to that of a husband and wife, for instance, supporting each other financially and day-to-day household work.
The above conditions are not exhaustive and the primary factor in determining the nature of domestic relationship is the intention and conduct of the parties.
Though there remains an exception to this rule. Live-in-relationship wherein one partner is unmarried and the other one is married, knowingly that the other person is legally married, cannot be considered “relationship in the nature of marriage” for the purpose of PWDVA even if the above mentioned conditions are met.
Status of minor wife
It is pertinent to mention that a minor wife falls under the ambit of the PWDVA and can file complaint in case the husband commits an act of domestic violence, however, a minor live-in-partner cannot file complaint. Recently, in another significant judgment, Ajay Kumar v. Lata, (2019),apex court affirmed that a female living in a relationship in the nature of marriage may also file a complaint against a relative of the male partner, as the case may be.
What does the law provide for divorced wife?
In Juveria Abdul Majid Patni v. Atif Iqbal Mansoori (2014)the Supreme Court has held that where the decree of divorce had been obtained subsequently, the respondent’s liability under the PWDVA would not be absolved by this subsequent decree of divorce, nor the right of the aggrieved person to receive the benefits including monetary relief, child custody, compensation and interim or ex-parte order under different sections of the PWDVA would be taken away.
However, high courts have given different opinions on whether a divorced wife can initiate domestic violence proceedings against the husband or not. Some follow the law laid down in the Juveria case whereas some have held that a domestic violence complaint filed by the wife after divorce is not maintainable, depending upon facts and circumstances of each case.
Domestic violence: An individual crime
In practice, domestic violence can be a collective crime but the cardinal principle of the criminal jurisprudence is that culpability of every individual has to be proved independently for conviction. Due to the private nature of this crime, accounting for individual culpability in a collective crime poses challenges before the court.
The Supreme Court in Ashish Dixit v. State of Uttar Pradesh (2013) observed that the aggrieved women cannot implicate all and sundry family members of the husband in the case just to settle scores. While deciding cases of domestic violence the principle “justice to the cause is equivalent to the salt of the ocean”should be kept in mind which means that the court of law is bound to uphold the truth which sparkles when justice is done.
Safe to say that over years the courts have acknowledged the horrors of domestic violence and its proliferation. It has at many occasions expanded the scope of the Act and included live in relationship as “nature of domestic relationship”. The idea has been to affirm the constitutional rights provided to women across the country irrespective of marital status when it comes to domestic violence.
(The Writer is an Advocate and Researcher with Delhi State Legal Services Authority)
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