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]
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