Required Amendments in the Existing Law relating to Domestic Violence

Society is basic to civilization and family is the unit of society, for which marriage forms the basis. But the way the government has formulated the marital laws, heavily lopsided to one particular gender, the institution of marriage is sure to break down to an unnatural death sooner or later.
The sole object of the women protective laws was to give legal protection to married women against victimization by dowry greedy in-laws or by stronger sex. Women protective laws have been justified with respect to the status of women in older times. But now the society has progressed to such an extent that criminality amongst women have achieved a higher stand in society and certainly have become influential but with respect to law is still where it was in older times. The repeatedly misuse of legal protection can lead to new legal terrorism.
The object of the protective legal provisions was prevention of the crimes against women, but many instances have come to light where the complaints are not bonafide and have been filed with oblique motive. In such cases acquittal of the accused does not in all cases wipe out the ignominy suffered during and prior to trial. Sometimes adverse media coverage adds to the misery. The question, therefore, is what remedial measures can be taken to prevent abuse of the well intentioned provision. Merely because the provision is constitutional and intra vires, does not give a license to unscrupulous persons to wreck personal vendetta or unleash harassment. It may, therefore, become necessary for the legislature to find out ways how the makers of frivolous complaints or allegations can be appropriately dealt with. Till then the Courts have to take care of the situation within the existing frame work. As noted above the object is to strike at the roots of crime against women. But by misuse of the protective legal provision a new legal terrorism can be unleashed. The provision is intended to be used a shield and not an assassin's weapon. If cry of "wolf" is made too often as a prank assistance and protection may not be available when the actual "wolf" appears. 
The women protective laws have now become a handy weapon for many women to blackmail, harass, humiliate and falsely implicate the innocent members of the in-laws family in dowry demand cases and extract money from them before finally setting the marital dispute. Laws like Indian Penal Code, section 498-A and Domestic Violence Act 2005 have number of provisions to intimidate men and their families. The effect of these laws are unjustified power in the hands of women to harass the husbands and their family members in domestic disputed which irreparably damages the life of husbands and their relatives and sometimes also becomes the reason for their death.
Women empowerment is no doubt an excellent thought. But the methodology to bring about the empowerment is foolish in the true sense. Perverted laws and draconian rules have given rise to the misuse of the same by erratic women. These laws, which were designed to reach the rural and semi-urban masses have got bottle necked in the urban misuse. Marriage has become an agreement to put a foot on the way to hell for men. The same bride, who is welcomed at a house to convert it into a home, builds the dungeon.  
Gender equality should not override our old age culture. Women empowerment in no way implies disempowerment of men. The time is knocking on our doors, which brings in an unnatural misbalance of man and woman relationship. The moment the doors open, the society will be flooded with the tools guaranteeing the extinction of the human race.
Society and legislature need to understand that Domestic Violence does not mean torture to female it means any physical, verbal, emotional or any other kind of abuse by one on another within the four walls is crime, and discriminating it on the basis of gender is unjust, unfair and it is against the principle of natural justice.
Domestic violence not only affects the life of individual but also the lives of their children who are innocent, it doesn't matter that whether the violence is against male or female. It is violence and so law must be stringent for both male and female and not only to men. Everyone who commits this heinous crime must be punished.
Law is multidimensional. It has social, economic and historical dimensions in addition to legal dimension. Law is not always just, reasonable or rational. A reasonable and rational law a century back may not be equally reasonable and rational law now. Law requires to be given a fresh look periodically. Law requires to be pruned as per needs. The journey of law may not always be linear and in right direction. Sometimes, it may travel in erratic manner. The academicians need to expose and reveal unnatural and unreasonable growth of law. With view to granting equal status to women, laws consciously or unconsciously are drafted having effect of sex-bias. 
Any law that forcefully subjects a section of a society to conduct as per the pleasure of another section is deemed oppressive and should be vehemently opposed. The Domestic Violence law strikes at the very foundation of marriage by promoting intolerance and litigation for petty domestic disputes. It is universally recognized that from time to time, differences arise in a marriage and sometimes people, both men and women, behave in hurtful ways towards each other. Most people are able to work them out and lead a more or less happy life with their loved ones. However, this Act, instead of helping the partners make amends, escalates domestic problems in daily life to such a level that it may eventually lead to divorce/ separation. Thus, this law will lead to more divorces, broken homes and the children will pay the ultimate price by getting deprived of good parenting.
It cannot be lost sight of that ultimate objective of every legal system is to arrive at truth, punish the guilty and protect the innocent. There is no scope for any pre-conceived notion or view. It is submitted that the investigating agencies and the courts start with the presumptions that the accused persons are guilty and that the complainant is speaking the truth. Certain statutory presumptions are drawn which again are rebuttable. It is to be noted that the role of the investigating agencies and the courts is that of watch dog and not of a blood hound. It should be their effort to see that an innocent person is not made to suffer on account of unfounded, baseless and malicious allegations. It is equally undisputable that in many cases no direct evidence is available and the courts have to act on circumstantial evidence. While dealing with such cases, the law laid down relating to circumstantial evidence has to be kept in view.
The law in its current form is inadequate to tackle the problem of domestic violence. It imposes a lot of responsibility on men, without giving them rights. At the very minimum, it should be made gender neutral, offering protection to both men and women. Also, provisions for stringent punishments need to be incorporated into the law to prevent its misuse. Moreover, the law needs to be made more practical by differentiating between various degrees of conflicts and by unambiguously defining what constitutes domestic violence.
The language, content and structure of this law have enabled implication of thousands of innocent families in the false cases. A complaint without any authenticity and without any weight of evidence, is enough to arrest the husband, in-laws anyone else name in the complaint, irrespective of whether a crime occurred or not. This has led to arrest of lakhs innocent citizens (thousands of families), with many committing suicide as they are unable to bear the indelible stigma on their honour and reputation.
As this Act gives enormous amount of power to women and is discriminating against men, it tends to the violation of fundamental right of men as it violates right to equality under Art. 14 of Indian constitution, this Article clearly state equality among equals and here when men are subjected to domestic violence they are also at equal footing with women who are subjected to Domestic Violence, further this Article enumerate that gender should not be reason to discriminate. Even such legislation violates Art. 21 of Indian constitution which gives Right to life and dignity and Domestic Violence clearly takes away right to live with dignity. A men loss its self respect and this lead to loss of dignity.
Judiciary also demands that if provisions of law is misused and subjected to the abuse of the process of law, it is for the legislature to amend, modify or repeal it, if deemed necessary. While it is true that women protective laws are marking effectively for the well being of the women, there are allegation that these laws have been misused by errant women, and police officers for nefarious ends. Under the Dowry Prohibition Act both giving and taking are punishable offence but no one has been penalized till date for giving dowry. The repeatedly misuse of anti-dowry laws can lead to new legal terrorism that have been made by the Malimath Committee Report. The gross misuses are reported in respect of dowry related I.P.C. provisions. To prevent the abuse of these provisions the Malimath Committee recommended that the sections be made bailable and compoundable to give a chance to the spouses to come together. Undoubtedly, the dowry prohibition act is also being misused, it can be said that all laws are capable of and subject to abuse and misuse.
A change in the approach of Apex Court can also be seen as it is also feeling the seriousness of the problem of misuse of legal provisions and in its several decisions it has emphasized the responsibility of courts and prosecution and to proceed in these type of cases very cautiously. Justice Katju has rightly suggested, in these cases, to invoke the safeguards of anticipatory bail so as to innocent family members could not be harassed.
The solution does not lie in dismissing the all existing laws. It is desirable to provide an opportunity to estranged spouses to settle their dispute amicably. The Indian justice system is still in search of an effective way to legally mitigate the dowry death and domestic violence is- sued that has troubled the nation for so long. The stringency of Section 498-A went too far, creating a problem of legal abuse and uncovering a much deeper problem of gendered social tensions and resentment within Indian society. These facts raise the fundamental question of whether the Indian judiciary should continue to regulate the dowry practice? However, in many regards, the last word on the efficacy of 498A and the current set of dowry laws has not yet been spoken. A number of women have been able to free them- selves from abusive relationships due to the law’s favorable language, even though the problem of dowry deaths undoubtedly continues. The catalyst of the dowry death phenomenon is social in nature, and under current conditions of limited law enforcement in India, can only be eliminated through large-scale social change. While the place of the law is surely to regulate social customs from causing harm, in the context of Section 498-A, the value of harshly criminalizing this aspect of family law.
The Protection of Women from the Domestic Violence Act,2005 have though been conceived with an intention to provide protection to women, have been drafted and implemented so badly, that they have become handy tools in the hands of unscrupulous women and their parents to harass their husbands and in-laws.[1] The provisions contained within this law are very lucrative for any person wishing to use to realize nefarious designs, to resist misusing this law. The moment a complaint comes to a police station regarding dowry harassment or domestic violence, without even going into the merits of the complaint or the process of investigation, the husband’s side is arrested and made to undergo undue harassment. Such an easy provision to get the whole family arrested with a single complaint based on imaginary and cock and bull stories can never act as a positive catalyst in saving a marriage, especially, when the case is taken back if ransom is paid as demanded.[2]
There is a need of Act like domestic violence but not in the current form, some amendments are required in the present Act  like it should not only contain the provision for women but also for male should also come under the ambit of such legislation. The present form of this Act is wholly biased towards women and men are discriminated, their fundamental and legal rights are being violated. Now there is a need that media must play an active role to change this discriminatory and biased law, and only then society will overcome from this evil.
The fact that though Husbands are not dependent on others has been found to be soft target of domestic violence through the world and their female partners had taken the un-due advantages of the same. No Government sponsored Social study centre or any media shown any concern, why the Higher rate of Husbands ending their Life after marriage!!
In the context of this law, it is not inapt to quote the famous Jurist Salmond who says that “the Law is without doubt a greater remedy for many evils. Yet it brings with it evils of its own.”[3] The “grass-root-level” legal fraternity has experienced how the intention of legislature in many instances has been frustrated so far as the application of this law is concerned by the wives against their husbands and relatives of husbands. Like a coin, this law has got virtues and vices and sometimes vices overpower the virtues, thus throttling justice. The character of this law, sometimes, transforms it as a grudge taking or threat bearing weapon in the hands of wives against their husbands and in-laws.
4.1 Suggestions
After analyzing the Act of 2005 it is observed that there is need of amendment in various aspects of laws and that too not only in the Act of 2005 but there is also a need to amend the provisions relating to domestic violence under the Indian Penal Code i.e. Section 498A. Along with that certain amendments pertaining to the procedural aspects need to be brought up in the Code of Criminal Procedure.
The following suggestions should be incorporated by the legislature to the words of law in order to make it better suited to the present needs of the society as well as to stop its misuse.
4.1.1 Suggestions as to Amendment in Section 498A:
1.      The offence of Section 498A should be made compoundable as well as bailable except in cases of grave physical injury apparent from the medical examination.
2.      The delay in filing complain in cases of domestic violence under Section 498A IPC should be considered as a way of threatening the husband and family members by making false allegations and charges.
3.      The persons, against whom a case of domestic violence or cruelty or dowry is registered, should be presumed innocent and should be treated by investigating agency as being innocent.
4.      In such cases if the court comes to the conclusion from the face of allegations put forth in the first information report that some persons, i.e. the aged or far living relatives of the husband or even the husband are involved falsely, then such unscrupulous lady or her relatives should be penalized so that the abuse or misuse of process of law may not be there in other cases.[4]
4.1.2 Suggestions as to Amendment in the Code of Criminal Procedure:
1.      In a case when it is proved that the case filed against the husband and his relatives is false, there must be a provision in the Code of Criminal Procedure as well as in The Protection of Women from Domestic Violence Act, 2005, to award compensation to such harassed husband and relatives.
2.      Involvement of parents and other relatives of husband in the case of 498A or The Protection of Women from Domestic Violence Act, 2005 is generally doubtful. Therefore, a provision should be inserted in Code of Criminal Procedure to the effect that preliminary investigation should be made and if other relatives are found to be involved only then action against them should be taken.[5]
4.1.3 Amendments Required as to Protection of Women from the Domestic Violence Act, 2005
i. There is a greater possibility that Domestic Violence Act is being misused by women in a legally permitted manner. The fact is that after a complaint has been filed by woman it is prima facie treated as true and genuine. The innocent man is accused and implicated in the false case as he refuses to oblige the unreasonable demands of his wife. It often destroys the life of many innocent people. As soon as the complaint is made, the accused is put behind the bars till the case is finalized. If the court declares the husband to be innocent and acquits him then the wrongdoer does not get any punishment for wrongfully dragging the husband to the court. So there should be provision in the Act to punish the wrongdoer. Thus the domestic violence Act should be made gender neutral and equal protection should be provided to man and women against physical, emotional, verbal and economical abuse.
ii. Domestic Violence Act must follow the general principles of law i.e. every person is presumed to be innocent until the guilt is proved in the court of law beyond the reasonable doubt. All the provisions of the Act are in favor of women whether she is having a good or bad intention. Disputes are very common in every family. Some disputes are for small thing and some are big they are the part of the family. The court should avoid taking the cognizance of the trivial matters. In order to proper use of the existing law it should be strengthen by inserting new section relating to this aspect.
iii. A wider social movement is necessary to educate the rights of men to conquer the menace, particularly in rural areas, as they are less aware of their legal rights and fall an easily prey to their exploitation at the hands of their wives. Educating men will certainly work as a deterrent of domestic violence.
iv. Regarding the coverage of the person under the Act i.e. “aggrieved persons” still continued to be married women, and sometimes a widow but unmarried daughters, mothers. The Act yet seems to be predominantly a matrimonial law, and in respect of “respondent” any adult man should be also have a right to complain against a woman. It is not always true that men are perpetrators and women only are the victims.
v. Under the Act of 2005, the words “men/women” shall be replaced by word “person” and word “wife/Husband” should be replaced with the word “Spouse” wherever they appear in the Act.
The Act of 2005 was framed to stop the domestic violence against women but now it is being misused to such an extent that men and women suffering from its misuse have far outnumbered the women suffering from domestic violence. It is necessary to take steps to stop the misuse of this Act to prevent the family system of India from breaking down and at the same time ensure justice to genuinely abused person.
1. Prima facie a woman should not get any interim relief if there are no visible signs of torture.
2. Under the Act of 2005 there is no bar on seeking an additional relief provided under any other law for the time being in force. If in case of domestic violence the complaint is registered both under the Protection of Women from Domestic Violence Act, 2005 as well as Section 498A of the Indian Penal Code, both the agencies carry out their investigations and if the reports are contradictory then what is the way out? Double enquiry may create confusions. A complainant should not be allowed to seek remedy of maintenance under various different legislations concurrently.[6]
3. The Magistrate may also direct the respondent to pay the ‘monetary relief’ to meet the expenses incurred and losses suffered by the aggrieved person. However, the Act does not take into account the financial condition of the respondent. Also no provision as to the determination of amount of such monetary relief is enumerated in the Protection of Women from Domestic Violence Act, 2005. Further, for how long such monetary relief shall be provided is also not mentioned in the Act. Thus provision in relation to this should be inserted in the Act.[7]
In Short, the Act of 2005 should be amended or should be replaced by a more benign, sensible, gender-neutral legislation that ensures women and men their rightful, honourable place within and outside home, in order to promote domestic harmony, reduce litigations and prevent legal terrorism and extortion through misuse of the law.[8]



[1]  Supra note 59 at p 368.
[2] Ibid.
[3] Supra note 59 at p 403
[4] Supra note 59 at 406
[5] Supra note 59  at 403
[6] Supra note 59 at 406
[7]  Supra note 59 at 407
[8] Ibid.

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