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Section 3 of the impugned Act



Impugned Provision / other anomaly

Breach of Section / Article
Section 3, the definition of “domestic violence” of the impugned Act

Article 14 and 21 of the Constitution of India



SECTION 3: Definition of domestic violence
For the purposes of this Act, any act, omission or commission or conduct of the respondent shall constitute domestic violence in case it
(a) 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
(b) harasses, harms, injures or endangers the aggrieved person with a view to coerce her or any other person related to her to meet any unlawful demand for any dowry or other property or valuable security; or
(c) has the effect of threatening the aggrieved person or any person related to her by any conduct mentioned in clause (a) or clause (b); or
(d) otherwise injures or causes harm, whether physical or mental, to the aggrieved person.
Explanation I: For the purpose of this section,
(i) "physical abuse" means any act or conduct which is of such a nature as to cause bodily pain, harm, or danger to life, limb, or health or impair the health or development of the aggrieved person and includes assault, criminal intimidation and criminal force;
(ii) "sexual abuse" includes any conduct of a sexual nature that abuses, humiliates, degrades or otherwise violates the dignity of woman;
(iii) "verbal and emotional abuse" includes
(a) insults, ridicule, humiliation, name calling and insults or ridicule specially with regard to not having a child or a male child; and
(b) repeated threats to cause physical pain to any person in whom the aggrieved person is interested.
(iv) "economic abuse" includes
(a) deprivation of all or any economic or financial resources to which the aggrieved person is entitled under any law or custom whether payable under an order of a court or otherwise or which the aggrieved person requires out of necessity including, but not limited to, household necessities for the aggrieved person and her children, if any, stridhan, property, jointly or separately owned by the aggrieved person, payment of rental related to the shared household and maintenance;
(b) disposal of household effects, any alienation of assets whether movable or immovable, valuables, shares, securities, bonds and the like or other property in which the aggrieved person has an interest or is entitled to use by virtue of the domestic relationship or which may be reasonably required by the aggrieved person or her children or her stridhan or any other property jointly or separately held by the aggrieved person; and
(c) prohibition or restriction to continued access to resources or facilities which the aggrieved person is entitled to use or enjoy by virtue of the domestic relationship including access to the shared household.
Explanation II: For the purpose of determining whether any act, omission, commission or conduct of the respondent constitutes "domestic violence" under this section, the overall facts and circumstances of the case shall be taken into consideration.


Article 21: Protection of life and personal liberty

No person shall be deprived of his life or personal liberty except according to procedure established by law.


Article14: Equality before law

The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.


The Argument

1.      A bare reading of the definition of domestic violence contained in Section 3 of the impugned Act would render the reader rather pondering as what acts, omissions and conduct is precisely prohibited under the impugned Act. The expressions employed in the definition are characteristically vague, and is open to subjective interpretation of every woman, who claims to have been subjected to domestic violence.

2.      Even the Explanation appended to physical abuse, sexual abuse, verbal and emotional abuse and economic abuse are essentially vague, and are vulnerable to subjective interpretation of the aggrieved person.

3.      The expressions, harms or injures or endangers the health, safety, or well-being; harasses, harms, injures or endangers the aggrieved person; has the effect of threatening the aggrieved person, otherwise injures or causes harm, whether physical or mental, to the aggrieved person, are all characteristics of uncertainty and “expressions of individual perceptions and personal interpretation”, in a family settings, for, an act alleged may constitute an “insult” for an “aggrieved Woman”, and might not be for any other women.

4.      Further, the impugned Act makes an audacious transgression into the closed door life of lawful wedlock. It makes the lawful act of consummation of marriage, at the instance of the so called aggrieved woman, an offence and civil wrong. Further, an alleged economic abuse can never be realistically ascertained, within the meaning of “facts” being proved / disproved / not proved as contemplated in the Indian Evidence Act. A trivial verbal exchange of words may be labelled as “verbal abuse. A usual arrogancy may be termed as insult.

5.      The definition gives absolute whims to a woman who may regard any act, omission or commission or conduct of her Husband or any of the relative of the Husband, as constituting domestic violence, and thus she would be entitled to initiate proceedings against Husband or against the said relative under the provisions of this Act.

6.      Having regard to the legislative enactments of HMA and IPC, the expression “Cruelty” is understood to have and judicially ascertained as “series of acts and omissions” constituting the act of “cruelty”. However, in the impugned Act, an isolated alleged act of “domestic violence” would give a cause of action in the eyes of law to the aggrieved woman. And the manner in which the legal process is vulnerable to abuse and misuse, it has the profound potential to subvert the amity between the Members of the family.

7.      The expressions hurt, insult, abuses – sexual, verbal etc., generally employed in penal statutes, ordinarily, though not strictly, regulates relationship between a man with his interaction and association with the rest of the world. However, employing such expressions in a family settings, and regulating a relationship inter se members of the family, on the basis of such expressions, may result offensive.

8.      In the settings of “Family”, every Member of the family, takes for granted some degree of relaxation in terms of his exercise of freedom of speech and expression, and more so when a Husband deals with his Wife and vice versa. The love, care, affection, quarrels, disputes, arrogancy, egoism are essential inherent features and attributes of any family.

9.      In another sense, the impugned Act grossly interferes with the right of a “Men” to “Husband” his Wife, in the regular course of marital affair, that is to say, whereas a Men maintains the life of his Wife, he has indeed right and power to exercise control over the conducts of his Wife; nevertheless, any such power which is short of “cruelty”.

10.  The certainty of the application and the scope of law is an essential attribute of any law, in the absence of which it becomes an instrument of oppression in the hands of abusive litigant. Whereas the impugned Act entails serious economic, penal and personal liberty deprivation consequences for the Respondents, there is almost no “Notice” to the people of the country to know what kind of acts are actually prohibited under the impugned Act. The predictability of the direction of law is grossly absent.

11.  There are two things which a legislature should always have in view while he is framing laws, the one, the law to be framed, should be, as far as possible, be precise; the other, the law framed should be easily understood.

12.  That, a law, and especially a Penal law, should be drawn in words which convey no meaning to the people who are to obey it, is an evil. On the other hand, a loosely worded law, is no law, and to whatever extent a legislature uses vague expression, to that extent, it abdicates its function and resigns the power of making law, to the Courts of justice, at the suffering of the subjects.

13.  The output of statutory laws in modern times has steadily increased and every conceivable aspect of human activity is being fast brought within statutory control. This has led to the widening of the area of offences which are defined not only by Act of Legislatures, but are also supplemented by rules, regulations and statutory Orders. The existence of the rule of strict construction in its “true and sober sense” as now understood can be justified, so that the present day growth of the criminal law will not become traps for the honest, unlearned in law and unwary men. Stressing the same need, LIVINGSTONE HALL has stated – “as the boundaries of crime have been extended to include more and more conduct made criminal, only because in seeming conflict with some vague ideal of social policy, or to reach some potential evil in an indirect manner, the need for a clear and comprehensive statement of the prohibited acts has become increasingly pressing. A canon of strict construction, limiting the Statute to its obvious meaning, and excluding potentialities, perhaps implicit to the Legislature, but uncertain of application to the uninformed reader, does much to prevent injustice”. – The Substantive Law of Crimes by LIVINGSTONE HALL, (1936-37), 50, Harvard Law Review, 616, Pg.638.

14.  In the instance case, the characteristically vague nature of the definition may be imminently oppressive to the Respondents. The expressions which are inherently couched in such wide language, is bound to operate harshly upon the Respondents.

15.  In the instance case, it would never be known to a prudent person as what kind of conduct or behaviour is expected from him / her; or to say, what kinds of acts should be omitted to be done, so as to avoid the rigour of “domestic violence”. In fact, every act and omission of the person may be labelled as “domestic violence”.

16.  Institution of any judicial proceedings against a person carries an implicit degree of coercion and no judicial proceedings should be triggered at the whims and fancies of the litigants, which otherwise amounts to sheer harassment, embarrassment, and substantial expenses to the person saddled with unwarranted litigation and most importantly, causes the waste of the precious time of the court in hearing the frivolous and meritless litigations.


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