DV Act 2005: Legal Violence

I am talking about Protection of Women from Domestic Violence Act, 2005. Although, malice cannot be attributed towards the Legislature, nevertheless, it is an Act, the provisions of which grossly frustrate the most cherished personal liberty of men and women, is destroying the institution of family in our Country, apart from subjecting people of this country to one of the most irrational and unjust law.

The Act sought to handover a potent weapon in the hands of an abusive litigant to intimidate and harass their family members, allows the litigant wife to lie with fluency and fervor, and legitimizes the gross misuse of the law.

The whole procedure contemplated under the Act is designed in such a manner that would cause “undue” fatigue and oppression to the matrimonial family members of the Wife. There is an illogical consistency in the entire scheme of the Act, and the innocent family members may never recover from confusion.

The serious anomalies in the Act begin from the Statement of objects and Reasons, wherein it says: The Civil law however does not addresses this phenomenon (domestic violence) in its entirety. In Cl. 3, the Act however, very silently, shifts from judicially ascertained expression “Cruelty” to unknown expression “domestic violence”, for the alleged purported acts of “domestic violence” which hitherto nobody knew what it meant.

The expression “Domestic violence” hitherto has never been judicially defined before the Act was enacted. The definition of “domestic violence” provided under the Act takes within its sweep, such vague expressions, which were never considered as a constituent of “cruelty”.

The tyranny starts from the open ended and loosely worded definition of the expression “domestic violence”, which is further amplified in the “Domestic Incident Report prepared under Form I.

The tyranny is further supplemented in Form II of Rule 6 of the Rules framed under the Act, which do not warrant the aggrieved person (wife) to state facts in her Application made u/s 12 of the Act. The aggrieved person only has to “tick mark” the reliefs she is looking from the court. Even the Domestic Incident Report prepared by the Protection officer in the prescribed Form I does not contemplate recording of any relevant facts, constituting “domestic violence”.

The tyranny continues where the Magistrate, u/s 12(4) is obliged to give hearing to the Applicant wife within three days of the filing of said Application. At the filing of an Affidavit provided under Form III prescribed under the said Rules, would empower the Magistrate to give ex-parte interim reliefs to the Applicant, as enumerated u/ss 18, 19, 20, 21, 22, notwithstanding whether or not Respondent family members are served with the “Notice” of the institution of the case against them.

The nature of wide conferment of powers to the Magistrates court, when are read along with other provisions of the Act, mainly sections 27, 13, 23, 18, 31, 32; R.12, may left the Respondent family members fatigued, irritating and helpless lot.

The tyranny is further intensified by the mandate of Rule 12(4) of the said Rules, which is disproportionately onerous and unwarranted, and in fact would be impossible to adhere with and the breach of it would be imminent, although not intentional, and would thus render the Respondent family members to criminal prosecution.

The tyranny is further deepened by the mandate of sections 31 and 32 of the Act. Whereas the expression “domestic violence” itself is inherently and characteristically vague and ambiguous, any Order passed, thereby prohibiting the Respondent family members from committing any further “domestic violence”, would also be vague and ambiguous. The Respondent family members may be left to ponder “what to comply with”; The Respondent family members may be left wondering how they should organize their conduct so as to comply with the Order of the Court.

Most shockingly, whereas the alleged breach of the protection Order is made a criminal offence, the aforesaid section obviates the necessity of the concerned Magistrate to satisfy himself as to the truthfulness of the allegation of breach of Order, and the law contemplate that the solemn words are flowing from the Applicant / Protection officer. Even in the Contempt of Courts proceedings, when it is alleged that the Respondent has willfully breached the Order of the Court, the High Court, before subjecting the alleged contemnor to the rigours of contempt proceedings, prima facie satisfy itself to the veracity of the wiiful breach of the Order.

The irony of the Respondent is not over. The offence is made Non-bailable and cognizable, wherein the Police may arrest the Respondent family members immediately on the allegation of breach of the Order. The proposition employed in sections 31 and 32 is mind blowing absurd and is unheard of in the body of our jurisprudence. The said provisions are extremely callous and shamelessly mutilate the mandate of Article 21 of the Constitution of India.

The other tyranny includes where under the mandate of section 19, the Respondent family members (except woman) may be told to leave their home and they may sleep on the footpath, the Legislature is least concerned.

Introducing a law is a basic incident of a democracy, and No law can be introduced in a casual fashion, which binds subjects and sought to deprive them of their personal liberty in casual fashion. Further, the ambit and scope of laws, creating huge economic obligations and personal liberty depravity consequences, cannot be vague in their applications, only to be decided in the court of law.

The people must have a reasonable notice of the consequences of law. Any act or omissions to qualify to be an offence should at least readily be distinguishable, identifiable and ascertainable and thus conceivable in the mind of a prudent man. This would assist the said prudent man to organize his conduct and behavior conforming to the mandate of law. The question of Notice of law and other inherent ambiguities & absurdities in the Act has to be examined in its purely legal and constitutional aspects, unclouded by sentiments, or personal considerations.

The provisions of the Act brazenly frustrate fundamental rights guaranteed under our Constitution. In the case of State Of West Bengal Vs. Committee For Protection Of Democratic Rights, West Bengal (AIR 2010 SC 1476) the Apex Court observed to say that the fundamental rights are being declared as a basic feature and constitute as a basic structure of our Constitutional framework. They cannot be contravened or abridged by any statutory or Constitutional provision. Any law that abrogates or abridges such rights would be violative of the doctrine of basic structure.

In the case of Society For Un-aided Private Schools Of Rajasthan Versus U.O.I. (AIR 2012 SC 3445) the Apex Court observed to say that Fundamental rights has two aspects – firstly, they act as a fetter on plenary legislative powers; and secondly, they provide conditions for fuller development of our people, including their individual dignity. In modern times, it is widely accepted that personal liberty is the very essence of a free society, and the said liberty must be safeguarded at all times.

In the case of Daryao Versus State Of Uttar Pradesh (AIR 1961 SC 1457) the Constitution bench of the Apex Court observed to say that the fundamental rights are intended not only to protect individual's rights but they are based on high public policy. Liberty of the individual and the protection of his fundamental rights are the very essence of the democratic way of life adopted by the Constitution.

Unarguably men and women are not equal; and more privileges may be conferred upon women. Further, it must be kept in mind that men and women are merely opposite sexes, and are not adversary by nature, and in fact both complement and supplement each-others existence.

Whereas the Legislature sought to protect a woman from domestic violence, at the same time, the law prejudices every woman who happened to be the relative of the Husband of the Aggrieved Woman. Notwithstanding that any cruelty and violence within the family against women be curbed, nevertheless, any law purporting to address this social issue has to conform to Constitutional norms and dictates, more particularly the mandate of Articles 14, 19 and 21 of the Constitution of India.

The mere solemn object of the legislation is no justification for its enactment; and the law enacted has to pass the test of Constitutional norms and standards. Notwithstanding, the enacted law may have been emanated from the “Body of wisdom”, the wisdom of the Constitution should prevail. Scrupulous adherence to constitutional dictates are positive obligations, for they are the longings of our freedom fighters with whom we all owe our Independence.

This law does not meet rational basis scrutiny; and the breach is fundamental; and the entire law deserves to be struck down as unconstitutional. In any such case, the question with which the Hon’ble Court is to charge itself is – can fair-minded reasonable unbiased and resolute men, who are not swayed by emotions, regard the provisions of the Act reasonable, just and fair !!

Sandeep Jalan

Advocate
Mumbai

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