Gender Justice and Protection of Women from Violence

ABSTRACT

Even though some positive changes have been made over the recent years, the issue of domestic violence still persists and women of all kinds become targets. Although men, children, and the elderly also may fall victim to it, women constitute the greatest population and almost one-third of Indian women have experienced abuse since the age of fifteen. To tackle this problem on a broad and sensitive legal perspective, the Protection of Women from Domestic Violence Act, 2005 (PWDVA) was developed. The Domestic Violence under the Act incorporates physical, sexual, emotional or verbal and economic abuse. The law does not only protect wives but all women in domestic relationship; all wives in live in partnership or non-marital partnership. The Act gives significant civil redress such as protection orders, residence orders, financial assistance, medical assistance and shelter. Nevertheless, there are still difficulties, including the lack of awareness, institutional support, and the stigma of reporting abuse. The law has been criticized as a possible misuse and exclusion of male and LGBTQ+ victims. Nevertheless, the Act is an essential move towards the protection of women and enhancing the Indian response to domestic violence, albeit there is an increasing demand to add more inclusive reforms, enforce them more effectively, and create an awareness of the issue.

RESEARCH METHOD

The research methodology employed in this paper is the qualitative doctrinal research approach as it will provide the laws, statutory provisions, judicial decisions and authoritative legal literature that addresses domestic violence in India. The main sources will be the Protection of Women from Domestic Violence Act, 2005; the pertinent clauses of the Indian Penal Code; the rules that have been developed under the Act; and the landmark cases that understand the applicability and scope of the law. The secondary sources, such as books, journal articles, government reports, NGO publications and national surveys-especially NFHS, are analysed to learn more about the socio-legal aspects of domestic violence and the practical operation of the Act. The socio-legal approach will be pursued to examine the role of cultural norms, gender roles, and social structures in the prevalence of domestic violence as well as their effectiveness as protection against legal systems. This methodology will also entail analytical comparisons of international standards, best practices and human rights frameworks and an assessment of how the Act is aligned to international norms. The latter is an integrated doctrinal and social-legal perspective of the review of the strengths, limitations, gaps in implementation, and a real-life impact of the Act.

1.INTRODUCTION

Women are the largest victims of domestic violence since time began and violence against women still prevails even in the 21st century. Women belonging to all social backgrounds regardless of their age, religion, caste, or class become victims of domestic violence. Domestic violence is not only limited to women; men, children, and old people can also be victims of domestic violence. Domestic violence is present at every level of society and in every population group. In India out of every 100 women, 30 percent have experienced domestic violence at least once for 15 years of age and about 4 percent of pregnant women have even encountered spousal violence during pregnancy. The domestic violence offence is perpetrated by a person within the victim’s domestic environment. They comprise family members, relatives, etc. Domestic violence is used in most cases where there is a close cohabiting relationship between the victim and the perpetrator. The different types of domestic violence are senior abuse, child abuse, honour-based abuse like honour killing, female genital mutilation, and all types of abuse by an intimate partner.

In the 21st century, a number of steps are adopted to tackle the social problem of domestic violence. Governments everywhere in the world have taken positive steps to end domestic violence. Additionally, the media, politicians and campaigning groups have helped individuals to realize that domestic violence is a social evil.
In India domestic violence is regulated by the Protection of Women from Domestic Violence Act, 2005 and it is explained under Section 3, that any act, commission, omission or conduct of a person harm or injures or endanger the health or safety of a person whether mentally or physically it constitutes domestic violence. It also comprises any hurt, harassment or harm inflicted on a person or anyone connected with that person to comply with any illegal demand would also constitute domestic violence.

2.DEFINITIONS

The Protection of Women from Domestic Violence Act, 2005 differs from the Indian Penal Code provisions in that it has a wider definition of domestic violence in terms of what it includes and whom it protects.
According to the Act, the aggrieved person means “any woman who is or has been in a domestic relationship with the respondent and who claims to have suffered domestic violence at the hands of the respondent.” This act does not only provide protection to women from violence in their husband-wife relationships but also to women residing in the same house as individuals with whom they share a domestic relationship. This shields women from violence in their marriage relationships (e.g. husband-wife, daughter-in-law with father-in-law/mother-in-law/etc), blood relationships (e.g. father-daughter, sister-brother), adoption relationships (e.g. adopted daughter-father), and even spousal relationships in the nature of marriage (e.g. live-in relationships, void marriages). The Act was thought to be the very first legislation that gave legal protection and recognition to relationships beyond marriage. Domestic violence is defined under Section 3 of the Act as” any act, omission or commission or conduct of the respondent shall constitute domestic violence in case it:
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 Harasses, harms, hurts or puts the aggrieved person in fear of injury to herself or any other person related to her in order to compel her or any such other person to comply with any illegal demand for dowry or other property or valuable security; or is calculated to intimidate the aggrieved person or any person related to her by any act referred to in clause (a) or clause (b); or otherwise hurts or puts the aggrieved person to bodily pain, or mental injury.

3.SCOPE

Originally intended to protect the wife or female live-in partner from domestic violence at the hands of the husband or male live-in partner or his family, the law also covers women residing in a household like sisters, widows or mothers. Domestic violence under the act comprises actual abuse, whether physical, sexual, verbal, emotional or economic, or the threat of abuse. This definition also encompasses harassment in the form of illegal dowry demands to the woman or her family. Recently a District court in Mumbai has held that Domestic Violence is not confined to physical injuries or abuse, but comprises sexual, verbal, emotional and economical abuse

4.OBJECTIVES OF THE DOMESTIC VIOLENCE ACT 2005

The goals of Protection of Women from Domestic Violence Act, 2005 are to act for the following purposes:

1. To determine and ascertain that all acts of domestic violence are illegal and can be prosecuted according to law.
2. To give protection to the victims of domestic violence in the circumstances such acts take place.
3. To render justice in timely, economical, and convenient manner to the aggrieved person.
4. To avoid the act of domestic violence and to take proper measures if domestic violence is committed
5. To put into practice enough programmes and agendas for the victims of domestic violence and to ensure the recovery of such victims.

5.OPTIONS OF AGGRIEVED PERSON

5.1 Rights

The victim has these rights according to chapter 3 of the Act – “Seek a protection order, an order for monetary relief, a custody order, a residence order, and/or a compensation order; Free legal aid under the Legal Services Authorities Act, 1987; Under sec 498A of IPC a complaint can be made. The person aggrieved is also entitled to live in the common home whether or not she has any right or interest over the home.

5.2 Shelter homes

The Act acknowledges the right of the aggrieved person to live in the common household; however, the Act also provides for the right of the aggrieved person to live in a shelter home as relief. A Protection Officer or a service provider can also seek this shelter in the name of the aggrieved person. Each State or Union Territory is mandated to identify and notify shelter homes accessible to aggrieved persons through the Ministry of Women and Child Development.

5.3 Medical facilities

Medical facilities are obligated to offer free medical assistance, even if the victim woman demands assistance without any prior recommendation either from the Protection Officer or the service provider. The medical facility’s obligations are separate from, and shall be completed irrespective of the completion of, those of the Protection Officer and service provider.

6.IMPLEMENTATION

In the words of Shalu Nigam, various gaps exist within the enforcement of laws that are supposed to shield women from domestic violence, such as the 2005 Protection of Women Against Domestic Violence Act. Inadequate awareness of the law, and consequently the availability and awareness of services, relief types, and legal rights, hinder effective enforcement of the law. Some of these problems of implementation centre on some districts, like Odisha, assigning these new regulation tasks to present officers instead of hiring new Protection Officers. The implementational gap causes this under-implementation of the Act obligations, since the duties of PO are given second place to other duties of the officers. The second challenge to the law implementation is the lack of meaningful immediate relief to domestic violence victims which includes, according to Shalu Nigam, practical solutions in the form of medical assistance, short-stay shelter, creche, psychological assistance, shelter homes or economic or material assistance. Shelter homes are the sole immediate relief available in most districts; survivors of domestic violence also frequently require “medical treatment, trauma counselling, clothes and ready cash, which are not available in the shelter homes. In addition to enforcement, implementation depends on the gradual social acceptability of reporting them.

7.CRITICISM

The Committee on Reforms of the Criminal Justice System in India suggested broadening of the definition of the term wife to one that covered women who stayed in a married man as his wife long enough, which brought in the debate of whether live-in relationships were legally considered as a wife. When Maharashtra tried to implement such suggestions, critics have suggested that granting women in non-marital cohabiting relationships legal protection might seem to sanction bigamy or second marriages. These were the recommendations subsequently referred to in Chanmuniya v. The Court in Virendra Kumar Singh Kushwaha (2010) had stated that cohabitation over a length of time might give rise to an implied marriage.

The Domestic Violence Act also has been criticized as being more civil in composition since criminal penalties are only imposed when protection orders are violated. The groups of men rights like Save Indian Family Foundation allege that women are abusing the law. Some public figures such as Renuka Chowdhury and Soli Sorabjee have raised their concerns regarding the gender imbalance and the general definitions of the Act, and some experts like Edmond Fernandes complain about how educated women do take advantage of the law. Studies that show that people have put false dowry complaints were also observed by a former President Pratibha Patil who emphasized that maltreatment should not diminish the role of fair and honest application.

8.CONCLUSION

The Act has a very important role to play in the Indian legal system in relation to safeguarding the rights of the women, so that they can feel safe and secure in the comfort of their own home. It is a comprehensive piece of law as it establishes the powers and functions of the different authorities, reliefs to the victim women, procedures to make a complaint about domestic violence, the help given to victims of domestic violence, power and range of the Indian Judiciary and the power of Central Government to frame rules. The Act gives civil remedies to victims of domestic violence. And before the passing of the Act, the domestic violence victims availed civil solutions like divorce, custody of children, injunction in any manner or maintenance alone by resorting to civil courts. Hence, the Act made some necessary reforms in the Indian legislature.

Though the Act has taken into account the vital steps towards the protection of women from domestic violence it does not offer any relief to the male members of the family and also does not recognize the cohabiting and marital relationship among the members of the LGBTQ+ community. Therefore, these should be added to the Act in order to completely eliminate domestic violence as a necessary evil from Indian society.

9.REFERENCES

Statutes & Legislations
• The Protection of Women from Domestic Violence Act, 2005, No. 43 of 2005, INDIA CODE.
• Indian Penal Code, No. 45 of 1860, INDIA CODE.
• Legal Services Authorities Act, 1987, No. 39 of 1987, INDIA CODE.
Cases
• Chanmuniya v. Virendra Kumar Singh Kushwaha & Anr., (2010) 10 S.C.C. 469 (India).
Government Reports
• Committee on Reforms of Criminal Justice System, Ministry of Home Affairs, Government of India, Report of the Committee on Reforms of Criminal Justice System (2003).
• Ministry of Women and Child Development, Government of India, Annual Report (relevant years).
• National Family Health Survey (NFHS-5), Ministry of Health & Family Welfare, Government of India (2021).
Books & Academic Authors Cited
• Shalu Nigam, Domestic Violence Law in India: Myths and Misogyny (Oxford Univ. Press 2018).
• Soli J. Sorabjee, commentary/interviews referenced through secondary sources (If used directly from a published work, full citation needed).