Domestic Violence Law – A Recipe For Disaster?
By R.K. Gauba*


"………….. Men have to start treating women as equals, I would be very
happy if a man has to think twice before opening his mouth. No woman
is public property,"
Renuka Chowdhary**

Prologue
Every civil society strives to create peace & harmony within it. But
then, this is dependent on a number of factors that involve
inter-relationship between individual members and the units that
collectively constitute the society. One of the basic units of a
society of human beings is called `family' by sociologists and works
in the matters of internal discipline & interplay between different
members on certain unwritten rules, which are accepted and followed,
in the larger interest and welfare of the group which has decided to
live together under one roof. What generally binds these individual
members together is consanguinity or marital relationship.

A thinker once beautifully defined "Home" as the place where "one goes
to and everything is forgiven, everything is accepted". George Moore
underlined the importance of home by referring to the predicament of
the man who "travels the world to search for what he needs – and
returns home to find it".

The institution of marriage (that holds together the roots of the
family system) and the home (on which the civilized human society so
much depends) are now coming increasingly under undue strain and
stress. The (by and large) prevalent tradition of patriarchal systems
is giving way to more egalitarian societal trends where men and women
are equal partners. Washington Irving to an extent betrayed male
chauvinism by saying that "men are always doomed to be duped — they
are always wooing Goddesses and marrying mere mortals". But perhaps
Michael de Montaigue showed the mirror to both genders by referring to
a "happy marriage" as the one that exists "betwixt a blind wife and a
deaf husband".

It is the morality or the ethics behind the concept of family &
marriage which sets the human race apart from animal kingdom. Hindus
view matrimony as a sacrament while Muslim or even Christian personal
laws treat marriage vows as contractual relationship. Be that as it
may, there exist certain universal principles that transcend the
barriers of different religions or faiths. When two persons decide to
marry each other and live together to lead life as, and raise, a
family, each of them takes upon oneself the sacred obligation to be
faithful to the other in good times or bad times and work together in
love, peace & harmony for their mutual welfare and progress ("till
death do us part"). It is a sacred endeavour, the success of which
depends totally on the sincerity & commitment with which they conduct
themselves together towards the world at large or towards each other.
Some may believe that marriages are made in heaven. But the reality is
that the possibility of a particular alliance bringing diametrically
opposite personalities together is as strong as the probability that
the partners in a particular marital relationship may be fully & truly
compatible to each other.

Keeping this in mind and the general interest of the community in
view, every personal law, or for that matter municipal laws of every
modern State, treat marriage as an institution connected not merely by
an entry point but also an exit door. In present day world, divorce is
no longer a matter of stigma. The status of being a divorcee only
reflects that the experiment of marriage indulged in by the individual
had failed, not necessarily on account of reasons or faults
attributable to him or her.

Indian society is not untouched by the developments in the rest of the
humanity. The modern State creates and enforces laws to discipline the
conduct of its members. India using this tool, after independence,
chose to introduce a number of reforms essentially as measures to
protect the life, limb & property of women vis-à-vis men. The original
most effort on this front came in the form of Hindu Code in 1956 when
a set of laws including Hindu Marriage Act, Hindu Succession Act, and
Hindu Guardianship & Wards Act were enacted and enforced, albeit in
the face of stiff opposition from quarters that had vested interest in
perpetuating a society controlled by men. The marriage laws have
undergone tremendous transformation over the years keeping in view, to
a large extent, the vulnerable status of women as the weaker sex.
Notwithstanding legal reforms introduced from time to time, the peace
& harmony in domestic life in our society continue even in the present
to be plagued and disturbed by certain social evils like child
marriage, dowry demand, physical or emotional abuse of women and
economic exploitation. Rather than being curbed with spread of
literacy & general improvement of economic conditions, there has been
a disturbing trend of spiraling increase in the rate of such incidents.

During the span of five decades between these two stages in the legal
history of India, introduction of statutes like Child Marriage
Restraint Act, Dowry Prohibition Act, and new offences including
"Dowry death" (Section 304 B Indian Penal Code or "IPC") or "Cruelty"
(Section 498-A IPC) can be counted as some efforts at social reform in
the realm of criminal jurisprudence. The latest legislative effort,
seemingly in the same direction, has come in the form of the
"Protection of Women from Domestic Violence Act, 2005" (hereinafter
referred to as "the Domestic Violence Act"), brought in force with
effect from 26-10-2006. Unlike the Hindu Code, the domestic violence
law, though also described as reform concerning civil rights &
obligations, is part of the criminal justice regime that enjoys
secular credentials in the sense it applies to every Indian alike,
irrespective of the religion or faith to which he or she may belong.
This law, as declared by the Preamble, is an Act meant to provide
"more effective protection of the rights of women guaranteed under the
Constitution who are victims of violence of any kind occuring within
the family".

The very nomenclature indicates that the Domestic Violence Act is not
restricted to violence perpetrated against a woman by her husband or
in-laws. It includes under its protective umbrella every woman living
in a domestic relationship as member of a family with the person
indulging in violence who in this case must invariably be of the male
gender. For the sake of convenience, the last-mentioned person would
be referred to hereinafter as the "respondent". The law protects women
who are victims of violence occuring within the family and who are
classified & defined as the "aggrieved person" in Section 2(a),
hereinafter referred to for sake of clarity as the "aggrieved woman".
The expression "domestic relationship", sine qua-non for a woman to
qualify as the aggrieved person, has been defined by Section 2(f) in
very wide terms so as to include not only those living together under
the same roof on account of the marital relation (e.g. a wife living
with husband and his relatives) but also persons related by
consanguinity (that is to say a sister living with her brothers, a
woman living in a family with other male relations of her husband
including his father, brother etc.), as indeed, and what has been
perceived as radical in certain quarters, a relationship between two
persons who are living together as a family in a shared household even
though they are not connected to each other by blood or marital
relation. To put it simply and adopting the modern day lingo, women
involved in "live-in relationship" or bigamy or adulterous connection
are also covered as beneficiaries.

It must be made clear here that one is not focusing on the criticism
of the Domestic Violence Act on the ground that it provides statutory
recognition and thereby encouragement to extra-marital relationships
or relations between persons of opposite sex outside of, or without,
marriage. The purpose of this paper, on the other hand, is to examine
if this law has strengthened the cause of women's right to be treated
as equals to men, in particular, in the matters of right to protection
against violence. The appraisal of the new law has been found
necessary particularly in the face of oft-heard criticism of the
Indian State that it has been "too willing to pass new criminal laws
to address these multiple forms of violence against women" questioning
the wisdom behind such tendency . A view finds abhorrent the
concentration of criminal law power in the State in the name of
protecting women since some of the skepticism on this account is
heightened by the fact that some of the laws "which purport to protect
women from violence actually penalize the woman" .

In the views of the author of this paper, the Domestic Violence Act
promulgated by the State in India with much fanfare and the avowed
purpose of protecting the women is largely ill-advised as it is
structured to add to their miseries rather than providing succour.

It must be immediately added here that one be not misunderstood to
mean that "domestic violence" of the kind envisaged does not exist or
that there is no need for protection of women against barbarism. What
needs to be remembered is that mere creation of rights can never be
the anathema for all social evils. Legal reforms are meaningless
unless they are preceded by social reforms. The gross abuse of Section
498-A IPC (turning every next case of marital feud into one of cruelty
for dowry) by unscrupulous lot has been too well known to be ignored.
Perhaps due to the consequent skepticism, the cry of real victims gets
ignored. No wonder, the conviction rate in such cases is too abysmal
to be quoted in support of claims about impact of said legislation.
Lessons learnt from that experiment needed to be borne in mind by
lawmakers before they introduced yet another legislation without
built-in checks against misuse.

If our society has women like Indra Nooyi & Kiran Majumdar Shaw who
have scaled peaks in their career, we also have women in our
hinterlands that are treated as chattel. The difference lies in
upbringing, in education, in awareness, in mindset, in social
conditions. Battle against the malaise of domestic violence has to be
waged first by the social scientists than by lawyers since it requires
use more of classrooms than courtrooms. Plato was being too simplistic
when he said, "Good people do not need laws to tell them to act
responsibly, while bad people will find a way around laws". Relevance
of laws will always exist till we achieve utopia (which might never
come!). The objective of emancipation of women requires, more than
laws, breaking free from shackles of social taboos, education and
above all economic independence.

The idea of "Domestic Violence Act" (as enacted) seems to have stemmed
from the feminist legal theory that regards men as the source of
women's problems. Without sounding to be dismissive or trivializing
many problems that women face, what one is introducing here for debate
by the civil society is the plea for scrutiny of this new legislation
from the perspective of advantages and limitations of law as an
instrument of social change.

As Steven Vago (of Saint Louis University, US) would put it, it is
always "tempting and convenient" to single out "one prime mover" to
trigger social change and use it for a number of situations. Blind
application of this tendency to legal changes can be
counter-productive if not outright dangerous since undue weight "in
isolation" cannot be assigned to any one of the multitude of causes
underlying the problem and which might be inter-related and so
deserving a cure in a different order.

Law is determined by the sense of justice and the moral sentiments of
the populace governed by it and, therefore, (as Vilhelm Aubert would
put it) "legislation can only achieve results by staying relatively
close to prevailing social norms". Since it needs the support of
society, such law cannot force upon the society a radical change of
morality and values unless the social institutions first change
behavior patterns. But then, it is equally true and now beyond debate
that legislation "is a vehicle through which a programmed social
evolution can be brought about". The conflict persists, however, on
the issue as to when and under what conditions the law cannot "only
codify existing customs, morals, or mores, but also ….. modify the
behaviour and values presently existing in a particular society" .
What must be borne in mind is that the efficacy of law as an
instrument of social change depends on a variety of factors that
include not only the pre-requisite that it be free from vagueness or
ambiguity ("Vague rules permit multiple perceptions and
interpretations" and consequently "loopholes" ) but also, and most
important, the assurance (to win respect, acceptability and
compliance) that it is "reasonable, not only in sanctions used but
also in the protection of the rights of those who stand to lose by
violation of the law" .

Domestic Violence Act fails, on various fronts, the muster of an
effective piece of legislation aiming social engineering. For the
starter one may say, it is founded on the premise (not supported by
any reliable evidence or data) that domestic violence at the hand of
menfolk is the general rule in every next household; it creates new
legal concepts that are dangerously imprecise; it promotes social
norms that are in stark conflict with existing traditions, values,
beliefs and sense of morality; and it provides a process that is
lopsided as it lacks in attributes of fairness or reasonableness.

One would rather deal with the subject against the backdrop of, and
with reference to, the concepts newly introduced, in light of the
meaning assigned to each of them in the overall scheme of the
substantive provisions and the procedure thereby created.

The expression "Domestic Violence"
Domestic Violence Act has been designed to create certain civil
rights, some declaratory (for example, the right to protection against
domestic violence) and some substantive (for example, the right to
maintenance, right to compensation on account of the domestic
violence, right to reside in a shared household, right to custody of
children, right to medical expenses etc.). But the law essentially
falls under the criminal jurisprudence not merely because it is
enforced by magistracy under the Criminal Procedure Code, 1973 (CrPC)
but also and mainly because the consequences of breach of certain
orders passed by the criminal court for affording to the aggrieved
woman the due protection of law has been made a new penal offence
(Section 31).

It is imperative for a study of this kind to find out as to what was
the legal position in domestic violence cases prior to introduction of
this new law, so that it can be examined as to what is new about this
additional measure. The main penal law in India is provided in Indian
Penal Code, 1860 (IPC), initially introduced by the British rulers but
adopted for continuation upon independence.

Chapter XVI of IPC relates to offences affecting the human body which
include not merely culpable homicide (including one amounting to
murder) but also hurt (simple or grievous) and involves within its
sweep cases of wrongful restraint, wrongful confinement, use of
criminal force, assault simpliciter, kidnapping or abduction or
trafficking in human beings and sexual offences including rape and
unnatural offence. The offence of dowry death (Section 304 B) was
added in 1986, along with the offence of cruelty by husband or
relatives of husband (Section 498-A) in the wake of outrage felt by
the civil society due to increased incidents of cases where women had
been subjected to harassment soon after marriage mainly with a view to
coerce them or their relatives to meet unlawful demands for dowry or
on account of the failure to do so.

Before proceeding to appreciate the impact of the new legislation, it
is necessary to bear in mind certain facets of existing law governing
human body. They include the following:

It is plain that the expression `hurt', as defined in Section 319 IPC
includes causing of `bodily pain, disease or infirmity' to any person.
The meaning of the expression `cruelty' used in Section 498-A IPC has
been defined to include willful conduct as is likely to endanger the
life, limb or `mental or physical' health of the woman. In this
context, it must be mentioned that a cruelty of such nature would
constitute the offence under Section 498-A IPC even if it is not
connected with an intent to coerce the woman or her relatives to meet
any unlawful demand for dowry etc. in as much as the two clauses of
the explanation appended to Section 498-A IPC are exclusive and
independent of each other.
The general penal law prohibits non-consensual sexual intercourse
between persons not related to each other by marriage. Undoubtedly the
law has generally disfavoured the married women in matters connected
with forced sex or sex without their consent or not involving their
will vis-à-vis the husband in that the exception to Section 375 IPC
makes it clear that sexual intercourse by a man with his own wife, the
wife not being under 15 years of age is not rape, notwithstanding the
fact that such intercourse may be against her will or without her consent.
Section 377 IPC renders taboo even a consensual non-vaginal coitus and
carves out no defence for husbands vis-à-vis the wives.
The offence commonly known as outraging modesty of a woman (Section
354 IPC) is one of the aggravated forms of assault or use of criminal
force particularly made to protect women against such indecent
advances as violate their dignity. It is well settled that this law
protects not merely an adult woman but even a female infant.
Unlike the offence of rape where, as seen above, under our law the
married woman has been at some disadvantageous position, Section 354
creates no defence in favour of a husband in relation to the wife,
though it must be added, that this penal clause has been rarely used
by women against the husbands in matters of sexual abuse.
Chapter XX of IPC provides for offences relating to marriage that
include not merely bigamy or adultery but also cohabitation caused by
a man deceitfully inducing a belief in the woman of lawful marriage.
The offence of criminal intimidation punishable under Section 506 IPC
or intentional insult under Section 504 IPC covered by chapter XXII of
IPC are penal clauses that can also be invoked, should the need arise,
by a wife against the husband or vice versa. Offering insult to the
modesty, or intrusion upon the privacy, of a woman by words, gestures
etc. are an offence under Section 509 IPC, which provision makes no
exception in favour of a husband.

Chapter XVII of IPC provides for offences against property that
include not only theft, extortion and their aggravated forms in the
nature of robbery and dacoity but also criminal misappropriation or
criminal breach of trust. All these offences generally do not provide
for an exception in favour of a husband or male relative, so long as
the victim woman is able to pin down the offender with dishonest or
fraudulent intention. Ever since the concept of entrustment of dowry
in favour of husband or his near relatives at the time of marriage
came to be accepted by the courts in India, the offence under Section
406 IPC has been regularly and flagrantly used by woman victims for
demanding penal consequences for conduct leading to marital discord.

Section 3 of the Domestic Violence Act defines "domestic violence" to
include "any act, omission or commission or conduct" of the man in
question in relation to the aggrieved woman in case it attracts any of
the following four clauses:

(a) harms or injures or endangers the health, safety, life, limb or
well-being, whether mental or physical, of the aggrieved person or
tends to do so and includes causing physical abuse, sexual abuse,
verbal and emotional abuse and economic abuse; or
(b) harasses, harms, injures or endangers the aggrieved person with a
view to coerce her or any other person related to her to meet any
unlawful demand for any dowry or other property or valuable security; or
(c) has the effect of threatening the aggrieved person or any person
related to her by any conduct mentioned in clause (a) or clause (b); or
(d) otherwise injures or causes harm, whether physical or mental, to
the aggrieved person.

Clause (b), as extracted above, is clearly meant to extend the offence
under Section 498 A IPC, for the benefit of women related to the male
offender otherwise than on account of matrimonial connection. Clause
(a), inter alia, renders various forms of abuse to be included in the
concept of "domestic violence", the abuses being mainly of four
categories namely physical abuse, sexual abuse, verbal and emotional
abuse and economic abuse.

The expression "physical abuse" is defined in Explanation-I (i) of
Section 3. The inclusive definition, even if read in conjunction with
the words that precede in clause (a) ("harms or injures or endangers
the health, safety, life, limb or well-being whether mental or
physical of the aggrieved person"), each facet of the physical abuse
defined in the above provision has been made punishable under the
cover of some or other penal clause even under the existing law.

The expression "sexual abuse", employed as one of the facets of
domestic violence in this law, is an area that is likely to be most
prone to abuse in the course of its enforcement. This needs elaboration.

The phenomenon called "sexual abuse" is defined very widely by
Explanation-I (ii) of Section 3. The limited nature of protection
under Section 375 IPC in the matters involving forced sexual
intercourse with wife notwithstanding, in the teeth of the fact that
wife has all along been entitled under the general law to protection
against sexual abuse under the cover of Section 354, 377 and 509 IPC,
there can be no denial of, or doubt about, the fact that every woman
is entitled to the protection of the said criminal law provisions.
Need one refer here, for driving the point home with full force and
vigour, that judicial view in this country has been that even a
prostitute is entitled to protection against forced sexual
intercourse. In this view, one finds that the new law breaks no fresh
ground in matters of sexual abuse of women except by explicitly
stating what has always been implicitly the legal position.

The expression "verbal and emotional abuse" as used in Section 3(a) is
defined in Explanation-I (iii) . Offering insult or ridicule to, or
humiliation of, a woman including with intent to hold her responsible
for, or accusing her of, not being able to bear a child or a male
child, are nothing but acts of commission or omission designed to
adversely affect the mental health of the woman within the meaning of
expression "cruelty", already punishable under Section 498-A IPC.
Similarly, threats to cause physical pain are covered by the offence
of criminal intimidation punishable under Section 506 IPC. Thus, the
so-called "verbal and emotional abuse" referred to in Section 3 of
Domestic Violence Act is only re-stating, for the purposes of this new
law, certain category of criminal conduct, the only difference being
that it now stands collectively described as "verbal and emotional abuse".

More or less similar situation ordains in relation to "economic abuse"
described by Explanation-I (iv) . Depriving a woman of any of her
economic or financial resources to which she is entitled has been a
penal conduct even under the existing law. If the woman has been
deprived of her property dishonestly, it amounts to theft, if this
deprivation occurs by putting her in fear of any injury etc. so as to
induce to deliver the property it amounts to extortion. If under some
deception, she is fraudulently or dishonestly induced to part with her
property it amounts to cheating. If it results in destruction or
damage to her property it would be mischief. If the deprivation is in
respect of the immovable property (even if temporary, though) without
her consent, which she possesses, it would be criminal trespass.

Most importantly, if the deprivation amounts to conversion to own use
of a property of the woman held in trust by the man, it constitutes
criminal breach of trust. As indicated earlier, the last-mentioned
penal provision has been oft-used in matrimonial disputes with regard
to articles of dowry or stridhan and, in our jurisprudence, there is
no defence available to a husband that he could freely lay hand on the
property of his wife only on account of the marital relationship.

In above view, the deprivation of economic or financial resources,
stridhan or property etc. to which the aggrieved woman is entitled
under the law, as is mentioned in sub-clause (a) of clause (iv) of
Explanation-I is nothing but reiteration of the existing law on the
subject. Same would apply to disposal of any property of the aggrieved
woman in sub-clause (b) of the same provision.

The expression "economic or financial resources to which the aggrieved
person is entitled under any law or custom whether payable under an
order of court or otherwise" is clearly indicative of inclusion of the
amount of maintenance to which a married woman or dependant female
relative is entitled under the existing civil or criminal law of the
land. The amount of maintenance granted by the civil courts is
recoverable ordinarily in the same manner as any money decree would be
executed. The criminal law, for which reference may be made to the
procedure for Section 125 CrPC, does permit immediate use of duress in
the form of imprisonment for each month's default and thus had been
sufficiently taken care of even before the new law caused to brand it
as "economic abuse".

But then, the concept of "economic abuse" used in Section 3 of
Domestic Violence Act does go beyond what has been the law thus far.
The additional arena created includes:

Deprivation of such economic or financial resources as the aggrieved
person `requires out of necessity', rendered of widest amplitude by
further clarification that this shall be `not limited to household
necessities' for the aggrieved person and her children.
The alienation of such movable or immovable asset as to which the
aggrieved person `is entitled to use by virtue of the domestic
relationship or which may be reasonably required by the aggrieved
person or her children' is also now treated as `economic abuse'.
A restriction against access to `resources or facilities' which the
aggrieved woman is entitled to `use or enjoy by virtue of the domestic
relationship' including access to the shared household amounts to
economic abuse, especially enlarged to the extent of including within
its effect even such household where the aggrieved person at any stage
has lived `in a domestic relationship' even singly, even if the
premises in question is owned or tenanted by respondent male in
question and even including a property that is the joint property of
the family of which the respondent male is a member, even though the
aggrieved woman may not have `any right, title or interest' in such
property, this courtesy the meaning `shared household' is assigned in
Section 2 (s) of the Domestic Violence Act.
Clause (d) of Section 3 throws the field wide open for all kinds of
injuries or harm (physical or mental) caused to the aggrieved woman
under the umbrella of "Domestic Violence" by failing to qualify the
expression "injuries or causes harm" with a particular mental state
and by using the expression "otherwise" apparently to take the
misdemeanour beyond what is perceived in the preceding three clauses.

The scope & width of the new offence relating to domestic violence
Contrary to popular public perception generated after coming in force
of the Domestic Violence Act, it does not create "domestic violence"
per se to be an offence. What has been made penal by Section 31 is the
conduct on the part of the male offender qua the female victim in the
domestic environment amounting to breach of a "protection order"
(which includes an interim or even an ex parte protection order)
obtained by the latter from a Magistrate under Section 18 (or Section
23). The offence under Section 31(i) is declared by Section 32 to be
"cognizable and non-bailable".

In order to understand as to how the aforesaid penal provision would
work, it is necessary to comprehend as to how and what kinds of
protection order can be obtained from the Magistrate by the aggrieved
woman. Section 18 , dealing with the subject at length, provides that
a Magistrate is expected to issue protection order upon prima facie
satisfaction that "domestic violence has taken place or is likely to
take place". In other words, a woman can approach the Magistrate for
such an order not only upon being subjected to domestic violence but
even at a stage when she expects to be subjected to domestic violence.
The protection order, a bare reading of the provision clearly shows,
is essentially an order of injunction. It is a prohibitory relief
calling upon the respondent to refrain from doing certain acts qua the
complainant woman.

The jurisdiction vested in the Magistrate to pass such prohibitory
orders interdicting the respondent from committing any act of domestic
violence (or aiding or abetting in such conduct) is a concept that
goes against the legal principles that have generally been applied in
matters relating to the law of injunction. I may illustrate this by
referring to Section 41(h) Specific Relief Act which lays down the
general rule that an injunction cannot be granted when equally
efficacious relief can certainly be obtained by any other usual mode
of proceeding.

Penal law of a State generally works on two assumptions. Firstly, that
every one is supposed to know the law, and secondly, that every one
shall obey the law without being specifically directed to do so. To
put it slightly differently, a citizen accused of the offence of
murder cannot turn around and complain that no one told him that he
was not supposed to commit the offence of murder. Except for the areas
where the concept of domestic violence breaks new ground, all the acts
which have been treated as foul under the new legislation have been
part of the criminal law of the country and, therefore, every person
is expected, even without a prohibitory dictum in the nature of
protection order, to refrain from causing any harm or injury to the
mental or physical health of the woman relative. The frivolity of the
concept of protection order introduced by this law comes to the fore
when an anxiety is raised as to whether a husband against whom no
protection order has been passed is free to cause any harm to his
wife. Since the answer obviously would be in negative, it is beyond
comprehension as to how the issuance of a protection order would add
to her protection against repetition of violence in future.

It is noticeable that the order that a Magistrate may pass to protect
the aggrieved woman from possible domestic violence includes an
injunction against the possible perpetration of domestic violence
asking him to refrain from being in vicinity of any place that may be
"frequented by the aggrieved person" or from operating a bank account
"enjoyed by both the parties", even if it were held "singly by the
respondent". The law makers in their anxiety to provide legal
protection to the woman seem to have gone overboard. The place
"frequented by the aggrieved person" would undoubtedly include the
house where both parties may have been living together before their
relations turned sour. The house in question may in fact be owned or
taken on rent by the male respondent. The aggrieved woman may have no
right, title or interest in respect of such premises. This is clear
also from the provisions relating to the "right to reside" to which
one shall revert later for elaborating certain other grey areas. By
asking the male respondent (through the protection order under Section
18) to refrain from entering into such a place only because it is
"frequented by the aggrieved person", the Magistrate would in fact be
throwing out the male respondent from his own house on to the road.
Similarly, by asking the male respondent to refrain from operating
bank account held singly by him only because he had shared its credit
assets with the aggrieved woman at some stage, the Magistrate would in
fact be depriving the former from his daily subsistence, in the name
of affording protection to the woman.

In the above context, it is essential to take note of four other
provisions of Domestic Violence Act. Section 23 empowers the
Magistrate to pass an interim order in the course of any proceedings
before him that would include under Section 18. Under the same
provision, upon prima facie satisfaction "on the basis of affidavit",
inter alia, that the application discloses that "there is a
likelihood" of domestic violence being committed, he may grant an ex
parte protection order under Section 18. There is nothing in the
entire statute to indicate as to how long such an ex parte order would
obtain. In this view, the dicta of Section 25 that a protection order
under Section 18 shall be in force "till the aggrieved person applies
for discharge" would operate with equal force even qua an interim
order. The general rule of the Code of Civil Procedure (CPC), in Order
39 Rule 3 A, that in case ex parte injunction has been granted, the
application for injunction has to be finally decided within thirty
days cannot apply to these proceedings under Domestic Violence Act
since Section 28 renders it subservient to CrPC. In the face of the
provision contained in Section 28, this shall be the position even if
relief under Section 18 is claimed, by virtue of Section 26, before a
civil court.

Bearing in mind the above referred provision of this law, possibility
cannot be ruled out that a woman should introduce some doubts about
the conduct of the male respondent (say the husband) with whom she has
lived for some time in a shared household and, in her anxiety to bind
him, approach a Magistrate with an application under Section 18 read
with Section 23 asserting, on affidavit, that the latter is likely to
subject her to some emotional abuse and seek an ex parte interim
protection order prohibiting him from entering his own house or
operating his own bank account, thereby rendering him totally at her
mercy. The incongruity of the impact hits in the face when one reads
these provisions in conjunction with the penal clause under Section 31
that renders breach even of interim order a cognizable offence
attracting substantive sentence. In this scenario, the concerned male
respondent is likely to be deprived of all possibility of presenting
his side of the story since there is nothing stopping an unscrupulous
woman from following the grant of an ex parte interim order
immediately with an application that the order has been breached.

Right to Reside
Undoubtedly, given the tradition-bound social norms that patriarchal
Indian families generally follow, the girl child is supposed to have
her connection with the parental home severed upon marriage, when she
becomes a member of the family of her husband for all intents and
purposes. There have been positive changes in the law of succession,
in recent times, to give certain rights even to married daughters
vis-à-vis the property of their parental family. But, the fact remains
that under our system the married woman adopts the household of her
husband as her own. It is for this reason that whenever the necessity
to fix a maintenance allowance in her favour arises, she has always
been held entitled to award of maintenance allowance in such quantum
as would ensure that she continues to enjoy the same status and
quality of life as she would have enjoyed if she had continued to live
in her matrimonial home with her husband. In fact, these standards are
reiterated and prescribed even by Domestic Violence Act through
Section 20(2) .

Unfortunately, there have been cases galore where upon marital discord
married women have been thrown out of the matrimonial homes. In such
situations the victims, in particular, from orthodox background find
it totally unacceptable to go back to their parental family for
shelter or support. The provision of maintenance allowance under
Section 125 CrPC was essentially created as a measure of protection to
such vulnerable group in as much as their proneness to abuse, when in
lurch, is a cause of concern of orderly society. The courts, in recent
times, have shown innovation by binding the husband (or the male
relative) with responsibility to provide some residential
accommodation even in the matrimonial home to save the hapless woman
from vagrancy. The statutory right to reside in a shared household in
favour of an aggrieved wife (or dependent woman relative) under the
Domestic Violence Act is undoubtedly a positive development. But, the
framers of the law, in their anxiety to cast the net wide, seem to
have again lost touch with reality and gone over-board. The relevant
provisions that need to be examined in this context are contained in
Section 17 and Section 19(1).

Section 17 talks of "right to reside in a shared household" . It
creates a statutory right in favour of "every woman in a domestic
relationship", an expression, given the wide meaning assigned to
"domestic relationship" by Section 2(f), includes not only the wife or
a woman related by blood but also a female friend who has lived, even
for a small period under the same roof with the male respondent
without entering into a marriage. The right declared by Section 17 is
that every such woman shall be entitled to reside in the shared
household whether or not she has any right, title or beneficial
interest of her own in the premises in question. The right is absolute
and subject to denial only in the event of eviction or being excluded
"in accordance with the procedure established by law".

Section 17 is merely declaratory of the right of the aggrieved woman
to reside in a shared household. The procedure for securing the said
right is given in Section 19 that also sets out the various elements
which can be introduced in "residence orders" . But then, Domestic
Violence Act nowhere makes it clear as to by what procedure an
affected respondent would be able to secure an order of eviction or
exclusion against such woman. There is no time limit prescribed during
which the said right to reside would obtain in favour of the woman.
Since this right to reside has been created by this special law in
favour of a special class of women, it will not be controlled by the
existing legal framework including the Transfer of Property Act,
inasmuch as and particularly because the right to reside thus brought
in existence is de hors the "right, title or beneficial interest". In
absence of any provisions or mechanism to such effect within the
special law, the male respondent is without a legal remedy against a
woman for whose benefit this right to reside was never intended. This,
because neither Section 17 nor Section 19 set out sufficiently the
parameters on which the claim to this right is to be tested by the
Magistrate. In this view, the availability of the forum of appeal
under Section 29 is also of no solace.

Interestingly, Section 17 and Section 19 are structured so as to
operate in different fields. Section 17 is a general right declared in
favour of every woman in a domestic relationship vesting in her not
merely the right to reside in a shared household but also the right
not to be evicted or excluded there from by the male respondent. This
right is not dependent upon allegations, or history, of domestic
violence. Section 19, on the other hand, permits an order to be
passed, in the event of domestic violence, to facilitate the enjoyment
of the right to reside in the shared household against the backdrop of
feud between the parties. The jurisdiction to restrain the respondent
from disturbing this right to reside even after the souring of
relations between the parties can be understood, at least to the
extent of married wives declining to go back to the parental home.
But, some of the possible restraint orders indicated in Section 19
seem wholly unjustified and unfair. Amongst the last mentioned
categories one may include the following:

direction to the male respondent to remove himself from the shared
household [Section 19(1)(b)];
restraining the respondent from alienating or disposing off the shared
household [Section 19(1)(d)];
restraining the respondent from renouncing his rights in the shared
household except with the leave of the Magistrate [Section 19(1)(e)].
It is plain and obvious that recourse to the Domestic Violence Act
would be made mostly in cases of marital discord by the wives against
the husbands. These disputes invariably would come up for
adjudication, also before the matrimonial courts, which are expected
to deal with them with requisite sensitivity. Order XXXII-A CPC
contains elaborate dicta to be followed by the courts dealing with
matters concerning the family. Rule 3 of Order XXXII-A CPC enjoins
upon the court to make endeavour in the first instance to assist the
parties in arriving at a settlement. In fact, amicable settlement of
disputes is the mantra that is now followed by courts across the
board, ever since Section 89 CPC was (re)inserted in 1999,
particularly encouraging the utilization of the tools of conciliation
and mediation. Experience shows that, given proper encouragement,
parties to a marriage that has run into rough weather are generally
inclined to make fresh attempt to bury the hatchet, forget the past,
forgive each other and try to live together so that the marriage can
be saved; this, particularly when the issues embrace not merely the
two of them but the innocent children they have together brought into
the world. Seen in this light, the direction to the male respondent to
remove himself from the shared household is not only unjust and unfair
to him, a person in whom the right, title or interest in the property
vests but also to the prospect of reconciliation between the parties.
In this view, with no guidelines provided, such an order, if permitted
to be passed by the Magistrate would work, in the long run, against
the interest of the woman herself. The husband having been thrown out
by the law, it is not conceivable as to how the system expects the
parties to even broach the subject of coming together.

As mentioned earlier in this paper, the expression "shared household",
as defined by Section 2(s), may include a property of the joint family
of which the male respondent is merely one of the several members. By
putting a restraint against alienation, disposal or renunciation of
rights in such shared household, the law seeks to virtually shackle
the rights of even such persons who may not have any role to play in
the dispute from which the controversy has arisen.

Monetary reliefs
Section 20(1) empowers the magistrate to grant "monetary reliefs" in
favour of the aggrieved woman. As indicated in the opening clause, the
purpose and intent of this provision is ameliorative; viz. to help out
the woman to meet the expenses incurred and losses suffered "as a
result of the domestic violence". In this context, one can understand
the quantum taking into account the loss of earnings, the medical
expenses or the loss caused due to damage to the property etc.
Inclusion of clause (d) of Section 20(1), however, is misplaced.

The jurisdiction of the magistrate to grant maintenance allowance is
governed by Section 125 CrPC. There was absolutely no reason why it
should be mentioned amongst the monetary reliefs meant to help the
woman meeting the expenses consequent to the domestic violence. This
is bound to create not only utter confusion but also multiplicity of
proceedings and consequences which would be grossly unfair to both
parties.

Experience shows that in spite of the secular law of maintenance
available under Section 125 CrPC to all sections of the society, now
rendered not even subject to any ceiling on the quantum of allowance
that can be fixed (after amendment brought about to Act 50 of 2001),
resort is made to the said statutory remedy in addition to, and not as
alternative to, the right to secure maintenance allowance under the
personal laws. Thus, even under the existing arrangement almost every
set of parties is locked in litigation over the issue of maintenance
simultaneously in the civil as well as in the criminal courts. A need
to simplify the procedure and avoid multiplicity of proceedings,
particularly, in family disputes has been long felt. Some hope was
generated in this regard when the Family Courts Act was enacted. But
then, the said law has not been brought in force in all parts of the
country. The creation of another statutory provision permitting
maintenance allowance to be claimed would undoubtedly be construed by
ill-advised parties as yet another forum where opposite party could be
dragged for similar relief to be agitated. This is bound to add to the
multiple proceedings in which the parties may already be spending out
their time, energy and resources.

It appears that the reference to the grant of maintenance allowance in
Section 20(1)(d) has been included with intent to extend the
provisions of Section 125 CrPC, in favour of such woman who cannot
claim to be lawfully wedded wife or daughter of the male respondent.
If that were the objective, it should have been clearly spelt out and
subjected to some guidelines as to the period for which they would be
entitled to maintenance allowance from the male respondent and under
what circumstances an order granting such allowances can be rescinded,
altered or withdrawn. After all, mere reference to provision would not
graft the remedies to such effect as contained in Section 125 CrPC,
which is meant essentially for wives, parents and children only.

The possibility of abuse of Section 20(1)(d) is writ large when seen
against the prospect of a female friend having lived with the male
respondent under the same roof in what is now popularly called as
live-in relationship (i.e. without marriage) even for a month or so
claiming maintenance allowance under the said provision, with no
restrictions attached and so possibly for the rest of her life.

Counselling
Section 14 of the Domestic Violence Act takes its cue from the present
approach of the law to seek amicable settlement of disputes and,
therefore, permits the Magistrate to direct the parties to undergo
"counselling" in the hands of experts in the field. Undoubtedly, the
idea behind this provision is salutary; that is to say, to help the
parties come to terms with the past history so that, if possible, they
could forgive & forget and get on with their lives, may be in
continued relationship, such that peace & harmony would prevail and,
at the same time, the woman could feel insulated from further violence.

An expert counsellor would not broach the issue with the parties in a
manner that could smack of pre-conceived notions of guilt. The issues
of this nature involve human beings and their emotions. A good
counsellor would first win the confidence of parties by showing
understanding and then suggest measures such that the parties are able
to overcome their respective weaknesses or faults and adjust with each
other. Any effort of such nature approached by a counsellor who is
judgmental (as to the guilt of one or the other side), even at the
outset, is destined to fail and thus would be a waste of time & energy.

Fortunately, the Parliament while enacting Domestic Violence Act did
not put any pre-conditions to the process of counselling in Section
14. But, the Central Government in exercise of its powers under
Section 31(1) read with Section 37(2)(k) while framing rules, called
the "Protection of Women from Domestic Violence Rules, 2006"
(hereinafter called the "Rules"), seems to have not only exceeded its
jurisdiction in the matter of subordinate legislation but totally
misconstrued the object of the mechanism of counseling.

Section 14(1) had left out only the clarifications and experience of
the counsellor to be prescribed by the rules. This is what was desired
by Section 37(2)(k). One has serious reservations about certain
clauses of Rule 14 which pertain to the process of counselling.

Rule 14(3) and Rule 14(6) render the process of counselling subject to
compliance by the male respondent with the requirement to "furnish an
undertaking that he would refrain from causing such domestic violence
as complained by the complainant" and further, in appropriate cases an
undertakings that he "will not try to meet or communicate in any
manner" except in the counselling proceedings. Rule 14(4), prescribing
the procedure to be followed by the counselor, though enjoining upon
the latter to assist the parties to reconciliation makes it incumbent
upon the counsellor to, inter alia, get "anassurance that the incident
of domestic violence shall not be repeated".

The onus of furnishing an undertaking (that the respondent would
refrain from causing domestic violence) or a written statement (that
he shall not repeat the domestic violence) puts the cart before the
horse. It proceeds on the assumption that there is no reason to doubt
the veracity of the allegation that the respondent has committed or is
likely to commit domestic violence. Since the proceedings before the
counsellor can take place even at the outset (Section 14 prescribes
"at any stage of the proceedings"), the male respondent (when he is
required by the law to undertake that he shall not repeat the incident
of domestic violence) stands condemned without being heard since in
the undertaking the admission of guilt (that he had in fact indulged
in such domestic violence) is implicit. If there be any doubts left,
Rule 14 (5) makes it unmistakably clear that the respondent shall have
no occasion to plead the defence of "justification".

With these kinds of fetters put, the expectation of Rule 14 (7) (8) &
(9) from the Counsellor to make efforts of "arriving at a settlement"
or "understanding" is misconceived. This inasmuch as a person
virtually told at the outset that he is presumed to be guilty of
domestic violence and will not be allowed to plead any justification,
what with the whole purpose of counselling being to secure from him an
implied admission along with an undertaking to behave in future, is
hardly expected to repose any faith in the process so as to be ready
to hear, least of all even remotely consider, suggestion for amicable
settlement. Given such handling of the process of conciliation, the
assurance in Rule 14 (17) that a request for alteration (that could
stem from settlement arrived before counsellor) shall not be acted
upon if found to be "vitiated by force, fraud or coercion or any other
factor" holds no meaning for the male respondent for whom the law
itself worked as a coercion.

Domestic Incident Report
Amongst the functionaries specially conceived and provided for by the
Domestic Violence Act, the Protection Officer seems to be the most
important; in that, he not only assists the Magistrate in the
discharge of his functions under the law but also works as a liaison
between the aggrieved woman and the various authorities. It may be
mentioned at the outset that the qualifications & experience which a
Protection Officer must possess have been left by Section 8(2) to "be
prescribed".

The Central Government while framing the rules in exercise of power
conferred by Section 37(2)(a) has virtually delegated the power in
above regard to the State Governments by giving the liberty, by Rule
3, to appoints an officer of the State Government as the Protection
Officer. In addition to this, the State Governments have also been
given the liberty to appoint "members of non-governmental organization".

The nomenclature "Service Provider" has been used as an additional
machinery to aid and assist the protection officer and, as indicated
in Section 10, would be voluntary association or a company working
"with the objective of protecting the rights and interests of women by
any lawful means".

The Domestic Violence Act lays great emphasis on Domestic Incident
Report, for convenience hereinafter referred to as "DIR".

Even a cursory perusal of the provisions and scheme of the statute
would indicate that the aggrieved woman is expected to lodge a DIR so
as to secure her rights under the law. Section 9 prescribes the duties
and functions of the Protection Officer whereas Section 10(2)
prescribes the powers of the Service Provider. In terms of Section
10(2), it is the Service Provider who is expected to "record" the DIR
and then make it over to the Magistrate and the Protection Officer.
Under Section 9(1)(b) the Protection Officer is required to make a DIR
to the Magistrate upon receipt of a complaint of domestic violence.
Making of a DIR to the Magistrate under Section 9(1)(b) is distinct
from recording the DIR under Section 10(2)(a).

Rule 5 framed by the Central Government goes beyond this scheme by
permitting lodging of DIR either with the Protection Officer or with
the Service Provider. This, strictly speaking, may not be a desirable
state of affairs, in as much as lodging of DIR with the Protection
Officer would render the service provider purposeless.

Be that as it may, the Rules prescribe the Form (No. I) in which DIR
is to be recorded. Since DIR would turn out in such matters to be
virtually the first authenticated report (of the incident) by the
aggrieved woman to the statutory authorities, it would have great
evidentiary value and thus significant impact on the proceedings that
would follow. It would be akin to the First Information Report (FIR)
registered by police under the Code of Criminal Procedure (Section
154/155).

Since breach of a protection order passed by the Magistrate under
Section 18, presumably invariably on the basis, amongst others, of DIR
is classified as a cognizable and non-bailable offence, it is
absolutely essential that all possibility of abuse of the process of
DIR are plugged and precluded. The cases of ante-dating or ante-timing
of FIRs are not hard to find. They have been too many and too frequent
for comfort. Same could happen to the process of DIRs. One of the
methods by which the law obviates the possibility of such fabrication
in the context of FIRs is through the requirement that such reports be
entered in a bound book with pre-printed consecutively numbered pages.
The further requirement that copy of the FIR be transmitted forthwith
to the Magistrate works as sufficient safeguard. The prescription as
to the form of DIR in the Rules does not contain any such safeguards
and thus could be a fertile ground for misuse of the law in
unscrupulous hands.

Domestic Violence Act aims to protect the woman from domestic
violence. It has already been noticed that almost each facet of the
expression "Domestic Violence" covered by its statutory definition in
Section 3 is cognate to some existing cognizable or non-bailable
offence. Under the prevalent criminal jurisprudence, it is the
statutory duty & responsibility of the police to register an FIR upon
the complaint being made or information being given about commission
of a cognizable offence (Section 154 CrPC) or non-cognizable offence
(Section 155 CrPC). Given the area assigned to various functionaries
and the method of process prescribed for purposes of this law, police
department is bound to have a role to play in every case covered by
Domestic Violence Act. In this view, the requirement of registering
DIR only adds to the form rather than substance and, therefore, seems
wholly unnecessary.

Interestingly, the proviso to Section 5 makes it clear that the role
assigned to other functionaries under this law is not to be construed
as relieving the police officer from his duty to proceed in accordance
with the law in the matter of a cognizable offence. If it were so, the
law has added the formality of DIR for no conceivable purpose. In
fact, such additional formality would be against the interest of the
victim woman who invariably needs immediate assistance of police which
is trained & equipped to not only secure the necessary legal or
medical assistance but also collect evidence to pin down the wrong-doer.

Duties & Powers of Protection Officer
Protection Officer is appointed under this law mainly to assist the
Magistrate in the discharge of his functions and to help out the
aggrieved woman in securing various reliefs including in the matter of
report to the police, recourse to special remedies with requisite
legal aid, as indeed access to counseling, shelter homes, medicare and
in securing enforcement of the orders. Section 9(1) of the Domestic
Violence Act indicates the charter of his duties, clause (i) leaving
scope for additional duties through prescription under the Rules. The
Central Government, in exercise of its powers in this behalf as also
indicated in Section 37(2)(f), has included in Rule 10 the additional
duties of the Protection Officer.

Some of the duties mentioned in Rule 10 to be performed by the
Protection officer when directed to do so in writing by the Magistrate
need special notice. They include the following:

Restore the possession of the personal effects including gifts and
jewellery of the aggrieved person and the shared household to the
aggrieved person;
Assist the aggrieved person to regain custody of children and secure
rights to visit them under his supervision as directed by the court;
Assist the court in enforcement of orders in the proceedings under the
Act in the manner directed by the magistrate, including orders under
Section 12, Section 18, Section 19, Section 20, Section 21 or Section
23 in such manner as directed by the court; and
Take the assistance of the police, if required, in confiscating any
weapon involved in the alleged domestic violence.
Undoubtedly, the Protection Officer is an agent of the Magistrate.
When directed to carry out certain tasks by the court of Magistrate,
he does enjoy a certain status and authority. But then, it has to be
remembered that the Protection Officer is not a police officer. He
does not have the authority or wherewithal to forcibly seize or take
over any article or take over possession of a premises. He also does
not have the requisite capacity to control the custody, even for a
short while, of human beings (children). These are all tasks in which
the officers of police department have the requisite training,
competence and powers under the law. A Protection Officer does not
carry out a probe in the sense of investigation by the police into
cognizable offences. In this view, it is neither desirable nor of any
purpose to expect him to confiscate weapon(s) involved in domestic
violence. That is an area better left to the police. The police do not
require any assistance of the Protection Officer for seizure or
confiscation of weapons of offences. In absence of any statutory
authority to seize any article or take control of any premises, the
Protection Officer would never have the competence to "restore" such
property to the aggrieved woman.

Interestingly, the statutory provisions of the Domestic Violence Act
are totally silent, except in the context of protection orders, as to
how the orders in the nature of Residence Orders (Section 19), Custody
Orders (Section 21) and Compensation Orders (Section 22) are to be
executed or enforced. All that Section 28 says is that the provisions
of Code of Criminal Procedure 1973 shall govern these proceedings. For
purposes of vesting the requisite authority, a clear provision
regarding the execution or enforcement would be necessary. The Rules
are also generally silent in that reference to Section 125 CrPC, in
the context of application under Section 12, in Rule 6 (5) leads one
nowhere on the subject of execution which is controlled not by Section
125 CrPC but by Section 128 CrPC.

Standard of proof
Every action under Domestic Violence Act hinges upon the construction
of the expression "domestic violence" against the backdrop of each
individual case. Explanation-II to Section 3 renders the issue too
subjective by stating that for purpose of determining whether any act
or conduct constitutes domestic violence, the "overall facts and
circumstances of the case" shall be taken into consideration. The
expression "overall facts and circumstances" is not only vague but
also relative. It is bound to lead to inconsistency which is never a
healthy trend in the context of a penal law. Section 32 (2) making
provision regarding "proof" is also of no assistance when it says that
the court may draw conclusion upon "the sole testimony of the
aggrieved person". This has all along been the law of evidence in our
country where courts would insist not on quantity but quality of
evidence.

Consequences of breach of orders (other than protection order)
Chapter IV of the Domestic Violence Act deals elaborately with the
procedure for obtaining various substantive reliefs that mainly
include Protection Orders, Residence Orders, Monetary Reliefs, Custody
Orders and Compensation Orders. While the breach of Protection Orders
passed under Section 18 entails invocation of a penal procedure under
Section 31, there is virtually no effective mechanism provided for
enforcement of the other promised reliefs.

Section 19(1) deals with the various facets of a possible residence
order. What is striking in this statutory provision is that the law
does not envisage the period for which such an order of residence