The progress of any society depends on its ability to protect and promote the rights of its women. Guaranteeing equal rights and privileges to women by the Constitution of India had marked the step towards the transformation of the status of the women in this country.
The domestic violence in this country is rampant and several women encounter violence in some form or the other or almost every day, however, it is the least reported form of cruel behavior. A woman resigns her fate to the never ending cycle of enduring violence and discrimination as a daughter, a sister, a wife, a mother, a partner or a single woman in her lifetime.
This non-retaliation by women coupled with the absence of laws addressing women’s issues, ignorance of the existing laws enacted for women and societal attitude makes the women vulnerable. The reason why most cases of domestic violence are never reported is due to the social stigma of the society and the attitude of the women themselves, where women are expected to be subservient, not just to their male counterparts but also to the male’s relatives.
Till the year 2005, the remedies available to a victim of domestic violence were limited. The women either had to go to the civil court for a decree of divorce or initiate prosecution in the criminal court for the offence punishable under Section 498-A of the IPC. In both the proceedings, no emergency relief/reliefs is/are available to the victim. Also, the relationships outside the marriage were not recognized. This set of circumstances ensured that a majority of women preferred to suffer in silence, not out of choice but of compulsion.
The enactment of Act, 2005 is a milestone for protection of women in this country. The Statement of Objects and Reasons of the Protection of Women from Domestic Violence Bill, 2005 marks the objective which was sought to be achieved by the enactment. It is useful to reproduce the Statement of Objects and Reasons, which are in the following words:-
“4. The Bill, inter alia, seeks to provide for the following –
(i) It covers those women who are or have been in a relationship with the abuser where both parties have lived together in a shared household and are related by consanguinity, marriage or through a relationship in the nature of marriage or adoption. In addition, relationships with family members living together as a joint family are also included. Even those women who are sisters, widows, mothers, single women, or living with the abuser are entitled to legal protection under the proposed legislation.
However, whereas the Bill enables the wife or the female living in a relationship in the nature of marriage to file a complaint under the proposed enactment against any relative of the husband or the male partner, it does not enable any female relative of the husband or the male partner to file a complaint against the wife or the female partner.
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(iii) It provides for the rights of women to secure housing. It also provides for the right of a woman to reside in her matrimonial home or shared household, whether or not she has any title or rights in such home or household. This right is secured by a residence order, which is passed by the Magistrate.
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The Statement of Objects and Reasons refers to three International Conventions where recommendations were made to the parties States to take measures including Legislation to protect women against violence including occurring within the family. General Recommendation No.XII of the United Nations Committee on Convention on Elimination of All Forms of discrimination against women stated:-
“General Recommendation No. 12 (Eighth session, 1989) Violence against women
The Committee on the Elimination of Discrimination against Women. Considering that Articles 2, 5, 11, 12 and 16 of the Convention require the States parties to act to protect women against violence of any kind occurring within the family, at the work place or in any other area of social life.”
Even before the Act, 2005 was enacted, Justice Sabyasachi Mukharji in B.R. Mehta Vs. Atma Devi and Ors., (1987) 4 SCC 183 has noted that right of occupation in matrimonial home which is granted under Matrimonial Homes Act, 1967 in England are not granted in India though it may be that with the change of situation and complex problems arising, it is high time to give the wife or the spouse a right of occupation. In paragraph 6 following was laid down:-
“6. ……………….In England the rights of the spouses be it the husband or the wife to the matrimonial home are now governed by the provisions of Matrimonial Homes Act, 1967. Halsbury’s Laws of England, Fourth Edition, Vol. 22 page 650 deals with the rights of occupation in matrimonial home and paragraph 1047 deals with and provides that where one spouse is entitled to occupy a dwelling house by virtue of any estate or interest or contract or by virtue of any enactment giving him or her the right to remain in occupation, and the other spouse is not so entitled, then the spouse not so entitled has the certain rights (known as “rights of occupation”) that is to say if in occupation, a right not to be evicted or excluded from the dwelling house or any part of it by the other spouse except with the leave of the court given by an order, if not in occupation, a right with the leave of the court so given to enter into and occupy the dwelling house.
But such rights are not granted in India though it may be that with change of situation and complex problems arising it is high time to give the wife or the spouse a right of occupation in a truly matrimonial home, in case of marriage breaking up or in case of strained relationship between the husband and the wife………………………….”
The right of occupation of matrimonial home, which was not so far part of the statutory law in India came to be included in Act, 2005. Need of such legislation as noticed by Justice Sabyasachi Mukharji has been fulfilled by enactment of Act, 2005.
As noticed above, from the Statement of Objects and Reasons, the Act was enacted to fulfil the definite objectives for protection of women. Supreme Court had occasion to examine the purpose of enactment of Act, 2005 in Kunapareddy Alias NookalaShanka Balaji Vs. Kunapareddy Swarna Kumari and Anr., (2016) 11 SCC 774 wherein paragraph 12 following was stated:
“12.In fact, the very purpose of enacting the DV Act was to provide for a remedy which is an amalgamation of civil rights of the complainant i.e. aggrieved person. Intention was to protect women against violence of any kind, especially that occurring within the family as the civil law does not address this phenomenon in its entirety. It is treated as an offence Under Section 498-A of the Penal Code, 1860.
The purpose of enacting the law was to provide a remedy in the civil law for the protection of women from being victims of domestic violence and to prevent the occurrence of domestic violence in the society. It is for this reason, that the Scheme of the Act provides that in the first instance, the order that would be passed by the Magistrate, on a complaint by the aggrieved person, would be of a civil nature and if the said order is violated, it assumes the character of criminality…………………”
The Act, 2005 is a further step to secure social justice by legislation. There has been several earlier measures for protection of women like Section 125 Cr.P.C. and 498-A of India Penal Code. Justice Krishna Iyer in Captain Ramesh Chander Kaushal Vs. Mrs. Veena Kaushal and Ors., (1978) 4 SCC 70 noted the objectives of enacting Section 125 Cr.P.C. in following words in paragraph 9:-
“9. This provision is a measure of social justice and specially enacted to protect women and children and falls within the constitutional sweep of Article 15(3) reinforced by Article 39. We have no doubt that sections of statutes calling for construction by Courts are not petrified print but vibrant words with social functions to fulfil.
The brooding presence of the constitutional empathy for the weaker sections like women and children must inform interpretation if it has to have social relevance. So viewed, it is possible to be selective in picking out that interpretation out of two alternatives which advance the cause–the cause of the derelicts.
Enactment of Act, 2005 is another step in the same direction. Supreme Court in Manmohan Attavar Vs. Neelam Manmohan Attavar, (2017) 8 SCC 550 noticed that Act, 2005 has been enacted to create an entitlement in favour of the woman of the right of residence. In paragraph 15, following was observed:-
“15. A reading of the aforesaid provisions shows that it creates an entitlement in favour of the woman of the right of residence under the “shared household” irrespective of her having any legal interests in the same. The direction, inter alia, can include an order restraining dispossession or a direction to remove himself on being satisfied that domestic violence had taken place.”