Striking dialogues, having panel discussions or a mere exchange of words in households on the subject of domestic violence garners sympathy until it is time to turn around and help the aggrieved woman who has been subjected to extreme form of violence by her husband. The objective of proposing new legislations or rooting for stringent laws for the menace of domestic violence stands unaccomplished until social reforms are initiated. The idea of
combating/eradicating domestic violence by advancing/tendering new laws needs a methodical social and legal reflection. The enlarged focus on legal reforms than social reforms is flawed and needs amends. Indian society is structured in a way which makes
women reluctant to seek legal recourse due to social stigma and lack of community support. We may speak on women rights and the laws formulated for their support, revival and development but it is a far -fetched affair when it comes to the implementation of asking
women to return home if she has been violated. Women are compelled to return to their violent homes due to lack of support from her maternal relatives and the society at large. We might go all out in speaking on the issue of abuse in domestic relationships but would we
ever tell the aggrieved woman that we as a society will walk the journey with her or be a support system to her while she is contesting a legal battle in an Indian court. That is
precisely when a woman gains reluctance. To be subjected to the intimidating system wherein she has already been fighting a battle back home, she is expected to face the massive regime without any community support.
Previously, as women were subjected to brutal violence for dowry, various enactments were formulated which held the husband criminally liable and subjected him to penalty. Gradually, as the exploitation of women expanded to economic and sexual abuse i.e. the definition of domestic violence did not stay solely limited to physical violence a call for a new legislation including the above forms of violence was needed. Accordingly, a new law namely,“ The Protection of Women against Domestic Violence Act, 2005” came into existence. The law is a civil law. It is remedial in nature. It provides the reliefs a woman can avail from her husband by filing the application in the court namely protection order, custody order, maintenance order, compensatory order and residence order.
SOCIAL ADAPTATION OVER NEW LAWS
The objective/goal should be to reform the mindset of the masses.To create an atmosphere of comfort for battered women. To tell women to return if she is facing violence. Women do not return to their maternal house due to the social stigma attached to the problem. Being more
empathetic and welcoming towards the woman and supporting her throughout the journey will bring the intended reform. Merely introducing new laws will not bring the changes. We already have well formulated laws but until social reforms are not initiated the formulated laws will not function. The hazard of domestic violence is a problem which draws its origin from the patriarchal ideology that men are superior to their female counterparts. Individuals
began to think that exercising dominance in every form over a woman is a superior right granted to them by the society itself. Such a thought process is developed through social
conditioning i.e. it is a social construction. Grass root level intervention is required to fix the social hazard of domestic violence. When a woman approaches the police station after she has faced violence the stakeholder concerned must accept her police complaint and provide her with a duly acknowledged copy of the same coupled with protection and ensure her
safety. Furthermore, the aggrieved woman should be informed that she is entitled to free legal aid. It is the responsibility of the state to appoint a government lawyer if she is not financially sound to hire a private lawyer. Women are unaware that they can avail legal services from the state to be represented in courts. They often refrain from initiating legal action against the perpetrator husband due to the shortage of funds to be paid to a lawyer.
PROBLEMS WOMEN FACE ON GROUND
Section 12(5) of the PWDVA Act stipulates that a case of domestic violence should be disposed of within 60 days. Due to a deficiency in the number of magistrate courts in the country the existing courts are overburdened with the number of cases, thereby levying additional burden on the already distressed woman. The act contains a provision for
ad-interim reliefs i.e. the reliefs a woman is entitled to instantly. Women who have been dispossessed from their homes post the violence file for residence orders and protection orders in the court for instant remedy to seek shelter and protection from the perpetrator husband. However, due to the delay and prolonged litigation the woman undergoes additional trauma and is destitute.
In numerous cases when the woman files a case u/s 498a of the Indian Penal Code (IPC) a law which protects women from the cruelty meted to her by the husband and holds him
criminally culpable. With the fear of litigation the husband will agree for divorce and settle the matter for a meagre amount of maintenance due to the fear of being criminally implicated.
Fatigued by the constant visit to the court and police station the woman shall withdraw the
case. Such an occurrence will go on to be recorded as a false case. The popular mood that has gained much credence that women file false cases gains more popularity due to such occurrences.
Another menace is that of the husband evading the summons from the court which further delays the procedure. The summons is issued to the husband on receipt of the application from the woman to the court in order to litigate the matter further. The husband will deliberately dodge the service of summons to refrain from engaging in any form of litigation. This causes grave harm to the woman with regard to the status of the case. In some cases the papers are lost in the court and the woman is unaware about the status of her case.
Secondly, there are a sparse number of shelter homes for battered women. There are shelter homes categorically for sex workers, orphaned children, destitute women etc. but very few shelter homes for women who have been a victim of domestic violence. There are no jobs
and skill training programmes for battered women wherein they can revive their lives post the violence. The state should undertake the responsibility of setting up more shelter homes for
women who have faced violence and provide for jobs and other skill based work for them.
The mere objective of saving the marriage and insisting on reconciliation endangers the woman’s life hereby again flagging the concept of social and legal inequality.
In most cases, when the woman has been dispossessed from the matrimonial home along with her children by the husband all her documents which include her Aadhar card, PAN card,
certificates, birth certificate of her children and school certificates are left behind in the matrimonial home. And returning back to the matrimonial home to collect her belongings will cause grave harm to her life. Not having such crucial documents in her possession
creates more problems to her and also during the admission of her children to schools and colleges.
Furthermore, in cases wherein women desire to seek divorce by mutual consent which is the easiest form of dissolving the marriage legally the husband of the woman will pay no heed to the legal notices sent to him for amicably settling the matter wherein the maintenance,
alimony, custody and visitation rights of the child will be discussed and added in the terms of the divorce. The idea behind such exercises of men evading the settlement and divorce by mutual consent is that he will have to pay the concerned amount to his wife as maintenance
and permanent alimony. This adds burden on the woman who desires to legally separate without contesting her divorce in a court of law.
WHEN COURTS COME TO THE RESCUE OF WOMEN
“Section 12 is the heart and soul of the Domestic Violence Act”; – Karnataka High Court directs Magistrates to decide applications within the mandated period of 60 days.
In Kavitha M. v/s Raghu, 2023 SCC Online Kar, 11[1]
In this case the Petitioner (wife) got married to the Respondent (husband) in the year 2016 and begotten a child in the year 2017. Further, as the couple began facing trouble in their
marriage the wife invoked section 12 and section 23 respectively of the PWDVA Act, 2005 in the year 2018 seeking reliefs under the act. The magistrate dismissed some applications and in some did not pass any orders. The Petitioner (wife) approached the Hon’ble Karnataka
High Court for speedy disposal of the matter which was pending for 5 years. The Hon’ble
Karnataka High Court reprimanded the delay and said that the wife has been denied the right to maintenance under the act and further issued directions –
- Magistrates, to henceforth decide the applications filed by the aggrieved persons within the time frame. The reasons for delay should be recorded in writing.
- For a maintenance application, the concerned court shall direct the husband, after receipt of notice, to file his assets and liabilities statement within four weeks from the date of appearance and in the event, husband dodges appearance before the court, the court is empowered to grant interim maintenance, on what is filed by the aggrieved person as assets and liabilities statement and as sought in the application.
- If there are any objections to the application/s filed by the aggrieved person under Sections 18 and 19 by the opposite party, it shall be filed within 4 weeks from the date of receipt of notice.
- To achieve the said timeline, the concerned court shall draw up and regulate its procedure in terms of its inherent power under Section 28(2) of the Act.
The instant petition was allowed, and the concerned court was directed to dispose of the pending application within 4 weeks from the receipt of the order.
Such judgements from the Hon’ble courts help women knock the doors of the court in order to seek the reliefs under the law ensuring timely disposal and remedy to the woman.
TRAINING AND AWARENESS
Training programmes must be conducted for stakeholders like police, magistrates, protection officers and lawyers. The functions and duties under the PWDVA Act of the
above-mentioned stakeholders should be explained to them. There are times when the
stakeholder concerned is unaware about how to navigate certain situations when an aggrieved woman comes to them. The victim shall come to the police station to seek help after she is dispossessed from her matrimonial home post the violence. However, as mentioned above there are a sparse number of shelter homes who admit battered women thereby creating
confusion. The Domestic Incident Report (DIR) which is filled by the Protection Officer (PO) is not informative on many occasions thereby making it difficult for the magistrates to pass orders. The unawareness should be eliminated and regular training about the micro level
engagement with the woman should be evaluated followed by a strong implementation. Laws are formulated in consonance with the social structure of a region. The legal and social impact do not run parallel to each other. They complement each other. Laws can be proposed and be put into operation for application but until the social structure is not stable and maintained the law would seldom function thoroughly and the purpose of its creation will be defeated.
[1] near Kavitha M. v/s Raghu, SCC Online, Kar, 11.
Author: Sagarika Bekal
Juris Centre 