In 2019 Corona virus hit Indian Sub-continent. In March 2020 and again in 2021, one of the most sudden and stringent lockdowns in the world was imposed in India, without any clear-cut directives and prior announcement. The impact of this deadly Virus and lockdowns had been ruthless on various sections of the Indian population, such as migrant workers, daily wage laborers, domestic workers, other marginalized groups and, unsurprisingly, women and children. The lockdown exacerbated the factors contributing to domestic violence as all the necessary platforms and channels such as legal forums, Police, redressal forums, NGOs became almost inaccessible to the victims of Domestic Abuse. A large number of studies over the past few years have shown that there is always a direct connection between times of crisis such as pandemics and interpersonal violence. It is proven fact that Pandemics cause economic insecurities, financial burdens, and isolation that contribute to making domestic violence even more prevalent. Covid 19 has impacted Indian families very deeply and harshly which enables an environment of fear and uncertainty by which we are facing a large number of cases related to violence against women.
In 2020, National women commission’s data shows an evident spike in the number of domestic violence cases. According to the data of NCW in 2020 itself, they have received 23,722 complaints of Domestic violence and in January 2021, 1463 complaints were received by the NCW. The lockdown may have helped to curb the impact of covid 19 but it made the lives of many women as living hell that are trapped with their abuser in their own houses and not able to seek help. Domestic violence itself is not less than a pandemic in a global pandemic it destroys lives, families and is serious violation of human rights within the four walls which we call home but those who face violence for them home is burning furnace.
Definition of Domestic Violence according to Indian Law:
The Act defines “Domestic Violence” for the first time in Indian law. It is a comprehensive definition and captures women’s experience of abuse and includes not only physical violence but also other forms of violence such as emotional verbal, sexual, mental, and economic abuse. It also includes harassment for dowry and acts of threatening to abuse the victim or any other person related to her. The act expands the definition of abuse and considers the deprivation of economic or financial resources to which the aggrieved woman or child is accustomed to also as domestic abuse. It is based on definitions in international law such as UN Declaration on Violence against Women and a Model Code. Domestic violence can be termed as one of the greatest and most pervasive human right violation.
The Act recognizes domestic violence as a human rights violation. It recognizes a woman’s right to live in a violence-free home. Domestic Violence Act is a comprehensive law as it addresses all issues related to women in a domestic relationship. The act does not restrict relationship to only a marital relationship but also covers daughter, sisters and mother. To realize this right, the Act recognizes a woman’s right to residence and her right to obtain protection orders under the law. The act also provides for provision of maintenance and empowers the court not only to grant interim of final protection orders but also gives it the powers to enforce them.
What is Protection of Women from Domestic Violence Act 2005 (PWDVA)?
Article 15 (2) of the Constitution of India, provides that “State can make special provisions for women and children” towards realizing the right to equality. Under the ambit of the Indian Constitution the protection of Domestic Violence Act 2005 provides affirmative action to remedy a wrong against women. It is often said that Domestic Violence Act, 2005 provides the necessary infrastructural tools with which to access the law. The ‘Protection of Women from Domestic Violence Act 2005 is an act enacted by the Parliament which has been published in the official gazette after the accent of the President of India.
Why the Protection of Women from Domestic Violence Act 2005 (PWDVA) was enacted?
Every Law has some aim and objectives. The PWDVA 2005 is a civil law and primarily focused towards providing relief to the aggrieved party; i.e. the woman who faces violence at home. The existing laws at the time it was enacted were deemed insufficient to deal with the rising instances of domestic violence and the need of a comprehensive legislation was felt.
The Protection of Women from Domestic Violence Act 2005 provides for the basic tools which primarily provide relief to woman in distress. This has been done by creating the office of the Protection Officer and recognizing the role of the Service Providers. It is the duty of the government to provide and ensure legal aid, medical facilities and shelter homes to the women in distress. The Court has been empowered to pass protection orders so that an aggrieved woman is not evicted from the shared household. The court is also empowered to direct the respondent(s) to remove him from the shared household. The act where it provides powers to the Court to pass protection orders also empowers the Court that where there is a breach of the protection order or interim protection order by the opposite party there it will be a cognizable, non bailable offence punishable with imprisonment which may extend to one year or with fine which may extend to Rs 20,000/- or both. Wide powers have been granted to the court where it can pass any orders that it may deem necessary for the safety of aggrieved woman.
The Act is a statement of commitment by the State that domestic violence will not be tolerated. In past few years there are numerous judgments passed by Hon’ble Apex Court and High Courts with regard to Domestic Violence and various issues related thereto such as shared household, maintenance, retrospective effect of applicability of Domestic Violence etc.
*S.R. Batra vs. Smt. Taruna Batra 2006, Hon’ble Supreme Court.
In this case, the Hon’ble Supreme Court with reference to definition of shared household under section 2 (s) of Domestic Violence Act stated that the definition of ‘shared household’ in Section 2(s) of the Act is not very happily worded, and appears to be the result of clumsy drafting requires to be interpreted in a sensible manner.
The Court held that under Section 17 (1) of the Act, 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 the husband, or the house which belongs to the joint family of which the husband is a member. In the case, the property in question neither belonged to the husband nor was it taken on rent by him nor was it a joint family property of which the husband was a member. It was the exclusive property of mother of husband and hence it was held to be not a shared household. This judgment has been subsequently overruled.
* Vandhana vs T. Srikanth and Krishnamachari, 2007, Madras High Court.
The Madras High Court maybe not fully satisfied with the ruling in S.R.Batra V Tarun Batra went in for a more indepth examination of the provisions of Domestic Violence Act and also looked into the definitions in various other countries and International Conventions , the Madras High Court elaborately expressed and defined the various important aspects of the Domestic violence Act, in this case the Hon’ble Court defined the actual meaning of shared household and domestic relationship. The court opined that the obligation of a husband to maintain his wife is one arising out of the status of marriage and nor by way of any contract or otherwise. It is a liability created by the Hindu law, in respect of the jural relations of a Hindu family. When there is no contract between the parties to a marriage, as among Hindus, a suit for maintenance is not a Suit based upon contract, but it is a Suit arising out of a civil relation resembling that of a contract, which is specially provided for in Article 128 of the Limitation Act. The Hon’ble Court further opined that by virtue of various judgments of High Courts and Hon’ble Supreme Court wife has a statutory right to reside in shared household which is protected by Law.
*Satish Chander Ahuja vs. Sneha Ahuja, 2020 Hon’ble Supreme Court held that “a wife is also entitled to claim a right to residence in a shared household belonging to relatives of the husband”.
The Hon’ble Apex Court while Overruling Its 2006 SR Batra V. Taruna Batra Judgment Supra* held that by virtue of Domestic Violence Act Wife also entitled to claim right of residence which belongs to the relatives of Husband.
In a well-balanced, well-articulated and well-reasoned judgment a bench of three Judges of the Apex Court comprising of Justices Ashok Bhushan, R Subhash Reddy and Mr. Shah has ruled that a wife can’t be thrown out of house. In this commendable, courageous and conscious judgment titled Satish Chander Ahuja vs. Sneha Ahuja in Civil Appeal No. 2483 of 2020 (Arising out of SLP (C) No. 1048 of 2020) delivered on October 15, 2020, the Apex Court has clearly, convincingly and commendably opined that a wife is also entitled to claim a right to residence in a shared household belonging to relatives of the husband.
*Husband has to pay maintenance even if wife is well educated:
Justice Khanwilkar and Justice Rastogi has passed the order in the case titled as Megha Khandelwal v. Rajat Khandelwal on 10.05.2019. Supreme Court enhanced substantially an interim maintenance for wife in a domestic violence case despite the fact that the wife was well educated. The Hon’ble Supreme court found it appropriate to enhance the interim maintenance to Rs. 25,000 per month to be paid to the petitioner.
In another case titled as Binita Dass v. Uttam Kumar on 09.08.2019. The Hon’ble Delhi High Court has held that Magistrate cannot deny interim maintenance to wife only because she has earning capacity or is a qualified person.
Retrospective application of the Domestic Violence Act:
Case name: V.D. Bhanot Vs. Savita Bhanot
In this case, the Apex Court upheld the Delhi High Court’s view that “even a wife who had shared a household before the Domestic Violence Act came into force would be entitled to the protection of the Domestic Violence Act.
Hence, the Domestic Violence Act entitles the aggrieved person to file an Application under the Act even for the acts which have been committed prior to the commencement of the Domestic Violence Act.
Conclusion: “Yet, by publicly speaking out against domestic violence, together we can challenge attitudes towards violence in the home and show that domestic violence is a crime and not merely unacceptable.” (Ban Ki Moon)
In our country people generally ignore the act of domestic violence. Family members, even victims themselves try to forget about such incidents in order to save family and their relationships. People find themselves helpless or sometimes it’s an act of deliberate ignorance as domestic violence often happens without any witnesses and sometimes people do not want to get involved. Break the silence and move forward to fight against domestic violence, you have the law and there are many means, just take steps if required. “ignorantia iuris nocet” which means not knowing the law is harmful therefore know your Laws and remedies available under the ambit of Indian Constitution and other Indian Laws. Domestic violence is a serious crime so raise your voice against it whether it is happening with you or someone else.