Law relating to domestic violence, vijendra kumar a gogia & company Hyderabad 2007 The issue of domestic violence

has always been pertinent to the Indian society. It is disheartening to note that women have been at the end of this violence. The female gender suffers from violence in the form of female foeticide, dowry denmands, cuelty, child marriage, purdah, and slavery etc. The issue of domestic violence has never been explicitly dealt with as a problem prevalent in Indian society. It is the manifestation of the apparent discrepancy between commonly held beliefs and action. It is ironic that the very society, which has traditionally immortalized women for their virtues, decides not to acknowledge the atrocities committed against them. The current undertaking of domestic violence is a culmination of years of campaigning fro the recognition of rights, basic to the dignity of women every where. The Protection of Women from Domestic Violence Act, 2005, promises to be a law will remove the evil frm our society. It is more gender specific legislation. Domestic violence is now both a sociological and a legal issue in the society. Violence against women is a manifestation of historically unequal power relations between men and women. Violence against women is one of the most pervasive of human rights violations, denying women and girls equality, security, dignity, self worth, and their right to enjoy fundamental freedom.1 Violence after her marriage occurs in the following forms.2 Sex abuse, wife battering demands for dowery7, mental and physical cruelty, being forced to do undignified jobs. The issue of domestic violence as elucidated under the Protection of women from Domestic Violence Act, 2005 is one related to the private sphere in the society. That is where penal provisions like cruelty and dowry death are public in nature; the civil face of domestic violence is restricted to the private sphere where it deals with the preservation

1 2

Domestic Violence against women and girls, UNICEF, Innocent Diegst, No. 6, June 2000. VK book.

of the institution of marriage and provides compensation and protection for the injury afflicted women. An analysis of Section 3 would makes us believe that the Act has defined domestic violence in a relatively comprehensive sense including under its ambit instances of physical, sexual, verbal, emotional, and economic abuse. In a sense, it departs from the norm by attempting to separate the phenomenon of domestic violence from the narrower understanding of dowry death. One of the reasons as to why women never reported the problem of domestic violence was the fear of being homeless. The matrimonial statues of our country do not recognize the right of residence or a share in the matrimonial home. A matrimonial home is supposed to be a place where both the husband and the wife reside. 3 In the celebrated case of A v. B4 the Court ruled that, while passing a matrimonial decree, the Court has the power to grant an injunction restraining the husband from entering the matrimonial home. It is true that there has been several land mark decisions which have advocated that the women has a right to residence in the matrimonial home, thus defying the norm.5 however these cases continue to be isolated instances. Lord Dennings famous quote illustrated that women were no longer their husbands chattel and hence were incapable of being thrown out of their home. United Nations Convention on Elimination of All form of Discrimination against women (CEDAW) In its preamble, the Convention explicitly acknowledges that extensive discrimination against women continues to exist, and emphasizes that such discrimination, violates the principles of equality of law of rights and respect for human dignity.

3 4

Ranganath Mishra (rev.), Mayne, Hindu Law and Usage, 15th ed. 2006, p. 203. 1977 Mh. LJ 66. 5 Ajit Udehsi v. Kumud Udeshi, I (2003) DMC 602 Bom; Sunita Slavi v. Shankar Salvi, I (2003) DMC 700 Bom

The expression shared house hold is very wide in tis scope. It includes where all the relatives have been living.6 However a lot of uncertainty has been created over the expression has lived at any stage in a domestic relationship. Does this mean thatsince the relationship started all such places of residence would be termed a shared household. This problem was sought to be remedied in the case of SR Batra v. Tarun Batra7, where the Court stated that the wife is only entitled to claim a right to residence in a shared house hold would only mean that the house belonging to or taken on rent by the husband, or the house which belongs to the joint family of which the husband is a member. It was also acknowledged that the definition of shared house hold in Section 2 () of the Act is not very happily worded and it appears to be the result of clumsy drafting. But we have to give it an interpretation which is sensible and which does not lead ot a chaos in society. A lot of ambiguity is created with the definition of domestic relationship. It defines it as a relationship between any two persons who have lived together in a shred household at nay point of time. Such persons must be related by either consanguinity or marriage. By clear interpretation, we can see that this also includes near relatives of the wife. Supposing a mother-in-law stays with the wife for a week and then goes back home, does this constitute a domestic relationship? According to the section, the answer yes. This definition of a domestic relationship is carefully worded to recognize that the woman is subjected to domestic violence not only by the husband but also his relations in the family. This is in compliance with the various internationals conventions that India has signed that recognize the rights of the woman and protect her in the family.8 Another interesting facet of this definition of domestic relationship is the phrase a relation ship in the nature of marriage. Does this include live-in-relationship?

N.K. Acharya, Commentary on Protection of Women from Domestic Violence Act, 2005 1st ed. 2006, p. 24. 7 136 (2007) DLT 1 SC. 8 United Nations Convention on the Elimination of All forms of Discrimination against Women (CEDAW), 1979: Vienna Declaration and Programme for Action, World Conference on Human Righht 1993. U.N. Doc. A/CONF> 157/24 (1993): Beiijing Platform for Action, Fourth World Conference on Women, U.N. Doc. A/CONF.177/20, ch. 1, (1995).

The role of protection officer is to work in tandem with service providers [NGOs and other civil society groups] to provide the aggrieved party with sufficient legal and moral support during the course of trial.9 The institution of protection officers emphasizes the need for societal intervention in order to prevent domestic violence.10

Srijoni Send and Sanhita Ambast, the Domestic Violence Act, 2005: A New Direction. http://www.indlaw.com/guest/clumnsdefault.asp?domesticviolence, last visted 10 Ibid.