Judicial Approach towards Domestic Violence Act 2005
For prevention of Crimes against women of India is being dealt by different provisions of law. The crime against women is an age old thing. There are number of enactments to deal with crimes against women. Legislatures make enactments and it is the proper application/ implementation by the executive and judiciary is the key to success.
It is the judiciary which acts as a guard for better implementation. People look to the judiciary no less than god. Indian judiciary has a name all over the world therefore role of judiciary is of great importance.
Judicial approach for the crime under Indian Penal Code (IPC) plays a vital role. Bigamy Indian Penal Code (IPC) Section 494 it prevents second marriage during life time of husband or wife. Adultery Indian Penal Code (IPC) Section 497 an offence when a man has sexual intercourse with the wife of another man without consent or connivance of the husband. Cruelty by Husband or Relative of Husband Indian Penal Code (IPC) Section 498 A makes provisions to protect the wife from being subjected by the husband or his relative to cruelty. This is a important amendment to the Indian Penal Code (IPC) where the domestic violence against married women was identified and addressed. Rape Indian Penal Code (IPC) Section 375 provides about the rape but the definition is not complete. This section silent about marital rape except if the wife is below the age of 15 years and sexual intercourse with wife who is legally separated.
Judicial approach for the crime under Indian Penal Code (IPC) is not always favourable to a women. In Mathura rape case the approach of judiciary created uproar as a result amendment was brought in to evidence act.
In a recent judgment of State of M.P. vs. Babulal. 72C.K. Thakker J. Opined that “ A socially sensitized judge is a better armour in cases of crime against women than long clauses of penal provisions, containing complex exceptions and complicated provisions” Truly speaking there can be no two options about the need of gender sensitive judiciary to deal with crime against women. With the rise of crime against women judicial behaviour displayed not only a greater sense of responsibility but also more sensitiveness. The latest judicial trend reveals revolution. In the exercise of its jurisdiction and powers the judiciary has devised new strategies, forged new tools and broadly interpreted the letter of law to ensure the human rights to the people. It is not possible to appreciate the scope of the legislative provisions relating to prevention of domestic violence by simply reading it and analyzing its provisions. It is by studying carefully the way in which the relevant enactments are actually enforced and interpreted in practice particularly the Court decisions by which effect is given to law so that one can be certain that the standards laid down by the legislative process are really being observed.
The Judicial activism created a land mark in Indian history in the name of Vishaka and others vs. State of Rajasthan.73 Guidelines prescribed by Supreme Court to be followed were directed until a new legislation replacing the same. Though 14years have been moved out the bill against sexual harassment at work place waiting for approval of legislature.
It is important that people have a great faith in judiciary. The functions of judiciary are to interpret the law and apply. Many times strict literal interpretation of law is totally against intention of the framers of law. This can be visualised in some of the judicial decisions. It is important to mention Judiciary is also not free from patriarchal thinking
In another latest judgment i.e., S.R. Batra and Anr. V. Smt Taruna Batra,74 the Hon’ble Supreme Court held that the definition of “Shared Household” in Section 2(s) of the Protection of Women from Domestic Violence Act, 2005 is not very happily worded, and appears to be the result of clumsy drafting. Giving sensible interpretation to the definition of “shared Household”, Supreme Court opined that the wife is only entitled to claim a right to residence in a shared household, and a “shared Household” would only mean the house belonging to or taken on rent by husband, or the house which belongs to the joint family of which the husband is a member. If the property neither belongs to the husband nor is it a joint family property of which the husband is a member, it cannot be called “Shared Household”.
D. Velusamy versus D. Patchaimmal 75 in this case Supreme Court decided that women not entitled for maintenance because unable to prove that she is legally wedded wife. The fact of the case is that D. Patchaimmal filled a case against D. Velusamy in the year 2001 under Cr. P.C. Sec 125. Her husband denied her claim saying she is nother wife, but one Laxmi is his wife. U/s 125 (1) Cr.P.C. “wife included a women who has been divorced by or has obtained a divorced from, her husband and has notre married. In Vimla (K) Vs. Veera Swami (K) 76 three judge bench of Supreme Court held that Sec.125 Cr.P.C. intended for to achieve a social purpose and to prevent vagrancy and destitution. The bench explained the meaning of “wife”.
“The object is to prevent vagrancy and destitution. It provides a speedy remedy for the supply of food, clothing and shelter to the deserted wife. When an attempt is made by the husband to negative the claim of the neglected wife depicting her as a kept-mistress on the specious plea that he was already married, the court would insist on strict proof of the earlier marriage. The term “wife” in Section 125 of the Code of Criminal Procedure, includes a woman who has been divorced by a husband or who has obtained a divorce from her husband and has not remarried. The woman not having the legal status of a wife is thus brought within the inclusive definition of the term ‘wife’ consistent with the objective. However, under the law a second wife whose marriage is void on account o the survival of the first marriage is not a legally wedded wife, and is, therefore, not entitled to maintenance under this provision.”
In this case the victim women D. Patchaimmal marriage could not be proved unable Supreme Court interpreting Domestic Violence Act 2005 said that domestic relationship includes not only the relationship of marriage but also a relation say in the “nature of marriage”. The word nature of marriage has not defined by the act. Hon’ble Supreme Court in interpreting relationship in the nature of marriage said that
a) The Couple must hold themselves out to society as being akin to spouses
b) They must be of legal age to marry
c) They must be otherwise qualified to enter into a legal marriage, including being unmarried
d) They must have voluntarily cohabited and held themselves out to the world as being akin to spouses for a significant period of time. In our opinion a‘relationship in the nature of marriage’ under the 2005 Act must also fulfil the above requirements, and in addition the parties must have lived together in a‘shared household’ as defined in Section 2(s) of the Act. Merely spending weekends together or a one night stand would not make it a ‘domestic relationship’.
Although Hon’ble Supreme Court recognised the changing society and the change is reflected by the enactment of The Protection of Women from Domestic Violence Act 2005. But in Para 34 the opinion of Supreme Court is a reflection of “male point of view” while interpreting live-in-relationship. “To get benefit of the live-in-relationship in the nature of marriage they should satisfy the conditions with evidence. If man has a ‘keep’ whom he maintains financially and uses mainly for sexual purpose and/or as a servant, it would not be a relationship in the nature of marriage. Merely spending weekends together or a one-night stand would not make it a ‘domestic relationship.’ ”This is a derogatory remark for a woman which was opposed by many to this says this Ms. Jaising said: “As a woman I am very much hurt. I take strong exception to the use of the word ‘keep.’ No woman is kept. How can the Supreme Court of India use the word ‘keep’ in the 21st century against a woman? Can a woman say that she has kept a man? It works both ways.” She said the Supreme Court had to be gender sensitive. She told the Bench the word ‘keep’ was a literal translation of the Hindi word ‘rakhel,’which is considered derogatory. “I would be moving an application for expunging the word,”.77 Ms. Jaising said: “This remark by the Supreme Court was highly derogatory of women and against the cultural ethos of the country where women are held in esteem.” By using words ‘one night stand’ ‘concubine,’
India being a signatory to the Convention on Elimination of All Forms of Discrimination Against Women (CEDAW),” and Indian Constitution prevents derogatory remarks against women. She said India, its legislature and the judiciary duty to uphold our constitution and CEDAW.
Sandhya Manoj Wankhade vs. Manoj Bhimrao Wankhade & Ors. 78 In this judgement Hon’ble Supreme Court extended the ambit of Domestic Violence Act 2005 by defining the definition of respondent in Sec.2 (q) of the Domestic Violence Act 2005.
Sec.2 (q). “Respondent” means any adult male person who is, or has been, in a domestic relationship with the aggrieved person and against whom the aggrieved person has sought any relief under this Act:
Provided that an aggrieved wife or female living in a relationship in the nature of a marriage may also file a complaint against a relative of the husband or the male partner;”
In this case the fact is that the victim women filled a case against husband, mother-in-law and sister-in-law the petition before Supreme Court is to delete the names of mother-in-law and sister-in-law from the respondent in the list because the argument is under Domestic Violence Act 2005 the respondent is a adult male person therefore mother-in-law and sister-in-law cannot be made party being women. Hon’ble Supreme Court interpreted the act that which says “complaint may be filled against are lative of a husband or the male partner”. In this case mother-in-law and sister-in-law are the relative of the husband therefore it is very much within the meaning of the act.
This is a very positive interpretation. Normally in most cases in laws are involved, harassing and torturing and sometimes they instigate the husband to do so.Escaping from the clutches of law by taking plea they are not coming under the Domestic Violence Act 2005 Sec.2(q) was defeating the object of this act.
In Rishi Kumar v State of Haryana,79 Punjab and Haryana High Court held that baseless accusation by the husband about the infidelity of wife and that she was carrying in her womb a child of someone else amounts to cruelty under section 498-A of IPC. In another case of Vijay Kumar Sharma v. State of Uttar Pradesh,80 Allahabad High Court held that taking away the child without the consent or knowledge of the child’s mother and particularly without informing her, amounted to cruelty under clause (a) of Explanation to Section 498-A in as much as such a conduct of the accused could have driven the mother to commit suicide or it could cause grave injury or danger to her life, limb or health (whether physical or mental). In addition to this, levelling of false allegations regarding the incapability of wife to conceive a child by the husband in divorce petition amounts to cruelty under Section 498-A IPC.81
Under the Indian Penal Code, Sections 304-B and 498-A are not mutually exclusive. These provisions deal with two distinct offences. “Cruelty” is a common essential to both the Sections. The explanation to Section 498-A gives the meaning of cruelty. In Section 304-B there is no such explanation about the meaning of ‘cruelty’ but having regard to the common background to these offences, the meaning of cruelty will be the same as given in explanation to Section 498-A, under which ‘cruelty’ by itself amounts to an offence and is punishable. A person charged and acquitted under Section 304-B can be convicted under Section 498-A without charge being there, if such a case is made out.82
In case of suicide by a married woman in her in-law’s house within ten months of her marriage, cruelty by her husband and mother in law was alleged. The mother-in law,of the deceased was telling her that she was a woman of evil luck and had swallowed her baby and that she should commit suicide. The husband of the deceased physically assaulted her. The offence under Section 498-A IPC was established. The absence of suicidal note was not material.83 In another case accused was convicted under Section 498-A for offence of ‘cruelty’. As a result of such cruel treatment the wife was driven to commit suicide.
Judicial Approach to this beneficial legislation Domestic Violence Act 2005 is not free from male thinking, this is very much observed in some judgement and this was objected by women of India. In Judgement of Justice Markandy Katju using word ‘keep’ ‘one night stand’ ‘sexual purpose’. These words are degrading status of a woman in the civilised society. The demand to delete those derogatory remarks from the judgement has been denied. This is not a very welcome attitude. In Mathura rape case Tukaram and Another v/s State of Maharashtra,84 1978 the observation of Supreme Court was criticized by citizens of India.
The Supreme Court held her failure to appeal to her companions who were no others than her brother, her aunt and her lover, and her conduct in meekly following Ganpat and allowing him to have his way with her to the extent of satisfying his lust in full, makes us feel that the consent in question was not a consent which could be brushed aside as ‘passive submission’. Supreme Court observation was criticized by civil society.
Milan Kumar Singh & Anr. v. State of U.P. & Anr. holding that there is no bar to directly filing a complaint with a magistrate, holding that there is no bar to directly filing a complaint with a magistrate, and the use of the word ‘or’ in section 12(1) of the PWDVA shows that it is the aggrieved person’s choice if she wants to approach the protection officer first. The Court further explained that the PWDV Act is a social legislation with the purpose of helping the aggrieved person, and thus imposing strict procedural requirements would directly contradict its objective.
Suresh Khullar v. Vijay Kumar Khullar,85 held that a husband’s second marriage was legally valid for the purposes of his wife’s maintenance claim during divorce proceedings under section 18 of the Hindu Adoptions and Maintenance Act of 1956, even if the husband’s ex-parte divorce from his first wife had been set aside. The Court relied on sections2(a), 18, 20, and 26 of the PWDVA, and found that the divorce decree was in operation on the day the second marriage was solemnized, making the parties’ second marriage legally valid, thus allowing for the wife’s recovery and denying the husband immunity for defrauding her. husband’s ex-parte divorce from his first wife had been set aside. The Court relied on sections 2(a), 18, 20, and 26 of the PWDVA, and found that the divorce decree was in operation on the day the second marriage was solemnized, making the parties’ second marriage legally valid, thus allowing for the wife’s recovery and denying the husband immunity for defrauding her.
Some Judgment is very judicious. Judges do take a substantive approach of the legislation while deciding cases. Formal approach is not always fulfils the intention of legislation. Therefore Judicial Approach plays a vital role for achievement of object.
72 2008 1 SCC, 234,para 29.
73 Vishaka and others vs. State of Rajasthan (AIR 1997 SUPREME COURT 3011)
74 AIR 2007 SC 1118 paras, 28 and 29
75 Cr.Appeal Nos.2028‐2029_of 2010
76 (1991) 2 SCC 375)
77 Indira Jaisingh, Add. Solicitor General
78 CR.Appeal No. 271 of 2011
79 1998 (1) Cr. L.J. 378.
80 1991 (1) Crimes, 298.
81 Renu & Others v. State of Haryana, 1990 (3) Crimes 226. Also see, Virbhan Singh V. State of U.P., AIR1983 SC 1002.
82 Smt. Shanti v. State of Haryana, AIR 1991 SC 1226
83 State of West Bengal v. Orilal Jaiswal,(1994) I SCC 73
84 Tukaram v/s State of Maharashtra, AIR 1979 SC 185
85 AIR 2008 Delhi 1, the High Court