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.
Legal issues !!
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