Filing of Cases Against Relatives of the Husband in the Protection of Women from Domestic Violence Act, 2005: A Balancing Judicial Analysis
Read this article ‘Filing of Cases Against Relatives of the Husband in the Protection of Women from Domestic Violence Act, 2005: A Balancing Judicial Analysis’ only on Legal Bites. Introduction The Protection of Women from Domestic Violence Act, 2005 (“The Act”) was primarily introduced to protect women from atrocities meted out on them. Women-centric laws were the need… Read More »
Read this article ‘Filing of Cases Against Relatives of the Husband in the Protection of Women from Domestic Violence Act, 2005: A Balancing Judicial Analysis’ only on Legal Bites.
Introduction
The Protection of Women from Domestic Violence Act, 2005 (“The Act”) was primarily introduced to protect women from atrocities meted out on them. Women-centric laws were the need of the hour that led to far-reaching changes in the legal system. The 243rd Report by the Law Commission of India states that legislations like The Domestic Violence Act have been specifically enacted to safeguard vulnerable sections of the society who have been victims of cruelty and harassment.
The said Act was enacted with a view to providing more effective protection of rights of women who are victims of violence of any kind occurring within the family. Those rights are essential of civil nature with a mix of penal provisions and Section 3 of the Act defines Domestic violence in very wide terms.[i] The intention of the present Act has always been effective protection of women’s rights guaranteed under the Constitution of India from violence of any kind not only from the husband but any domestic relation.[ii]
With changing social scenarios and incidental realities of growing misuse of the provisions of the DV Act, there is a need to shift the approach and balance the women-centric nature of the Act to a more inclusive law and protecting “Relatives” of the husband from harassment and exploitation at the hands of the wife at the same time. There is a growing tendency towards using the provisions of the DV Act for personal gains or/and to get favourable settlements. Therefore, it is imperative to look into the statute and judicial pronouncements with respect to Relatives as Respondents in these cases and the approach to be adopted by courts in this regard.
Relatives as Respondents
Black Laws of England defines a “Relative” as ‘Kinsman, a person connected with another by affinity.[iii]’ The Act is not completely silent on Protection of the women from Relatives of the husband.
Though the term, ‘Relative’ has not expressly been defined in the statute, Section 2(q) of The Act defines “Respondent” as “any adult male person who is, or has been, in a domestic relationship with the aggrieved person and against whom the aggrieved person has sought any relief under this Act; Provided that an aggrieved wife or female living in a relationship in the nature of a marriage may also file a complaint against a relative of the husband or the male partner[iv].”Any Relative of the husband is covered under Section 2(q) of The Act.[v] .
The question that has constantly arisen before the Courts is whether cases can be filed against the Relatives of the husband and whether they can be considered as Respondent. The Bombay High court in Ambreen Akhoon’s case[vi] held that the scope of the term under Section 2(q) is wide in the Act[vii].
Respondent is not restricted only to the husband but his relatives are included within the scope of the definition. The wife can file a complaint and also seek other reliefs against the husband and his relatives. It specifically, categorically & unambiguously permits her, to file a complaint against relatives too even without proceeding against the husband. It is also not necessary that the husband be a mandatory party.[viii] As no restrictive meaning has been given to the expression ‘Relative’, females haven’t been expressly excluded from the ambit of such complaints. [ix].
Domestic Relationship: A Prerequisite in Domestic violence Cases
The Delhi High Court in Vijaya Verma v. State of NCT Delhi, 2010[x] was of the view that ‘Domestic Relationship’ arises if the aggrieved person lived in a shared household with the Respondents before filing the petition or ‘at any point of time.’ Any point of time means that the aggrieved was continuously living in a shared household. It can’t be defined as any point in the past whether the right survives or not. The right survives as long as parties live under the same roof and enjoy living in a shared household.
A domestic Relationship needs to be properly established to move a petition in such cases between the Relatives and the wife. Domestic violence will only be considered to have occurred if one is living in a shared household with Respondents. The Act, however, does not cover instances wherein the relatives live separately but may be covered by other statutes such as IPC.
The Bombay High Court in another case[xi], ruled that Domestic Relationship is a must for the maintenance of action within the Act. The Madhya Pradesh High court ruled in Kuldeep Singh v. Rekha[xii] if the husband and wife have left the shared household to establish their own household, the Domestic Relationship comes to an end with respect to the parents. A domestic relationship is to be established to invoke the Act.
The Karnataka High Court ruled that only women in a Domestic Relationship can invoke either in the past or present, who has been subject to Domestic violence by Respondents can seek reliefs within the Act.[xiii] In Amit Agarwal v. Sanjay Aggarwal[xiv] the court held that parties could have lived together in a shared household with continued Domestic Relationship and can’t be made a Respondent on the ground that there was a past relationship, continuing with such a complaint would amount to travesty of justice and abuse of process of law.
The Bombay High court held in Prakash Vinayak Gaikwad v. State of Maharashtra[xv] that short visits of parental Relatives would not be sufficient to rope in relatives in proceedings under the Act. As Domestic Relationship wasn’t sufficiently established the Hon’ble Supreme court dismissed the Domestic violence complaint as persons were not living in a shared household.[xvi]
Approach Required to be Adopted by the Courts with respect to Relative Respondents
Lucid allegations need to be established against the Relative Respondents. The Hon’ble Supreme court in Shyamlal Devda v. Parimala[xvii] was of the view that there must be specific allegations in cases of Domestic violence. When an act is alleged, the court has to be prima facie satisfied that there have been instances of Domestic violence. Averments made should constitute an offence of Domestic violence against the Relatives [xviii]and how they have caused the act and if this is not present the proceedings are liable to be quashed.
Specific instances of Domestic violence are necessary rather than omnibus allegations.[xix] Courts certainly need not be a mute spectator if acts of Domestic violence are prima facie established nor when it’s a ploy to make personal gains or to use the law as a tool to seek revenge.
Magistrates are required to be careful while issuing summons to Relative Respondents. In Vijaya Baskar v. Suganya Devi[xx] the court observed that at the initial stages it is not justified to treat Respondents as accused also while issuing summons to treat them as accused. The magistrate is empowered to pass Protection orders under Section 18 of the Act, prohibiting the Respondent from committing any act of Domestic violence after hearing the Respondents and prima facie being satisfied that such activity has occurred or is likely to take place.
The Respondents need to be dealt with in a gentle manner while passing of Protection orders unless there is a violation of the same. Magistrates can take the assistance of a welfare expert, preferably, a woman for the proceedings. Conciliatory efforts at the first instance should be made according to provisions of the Act by the Magistrate so that the disputes can be amicably resolved and does not become problematic at later stages.
A Way Ahead
The necessity of a neutral & unprejudicial law was asserted by some High Courts so as to strike the required balance between the protection of genuine victims of Domestic violence and the safeguards to Relatives in false and frivolous cases. It shouldn’t be open to easy misuse by women, opined the Madras High Court. With the changing times, there is an exigency for exclusive laws to be added within the Act or corresponding legislation.
Rules and guidelines to be adopted within court procedure to avoid mala fide use of the present provisions. Protection orders under Section 18 of the Act are specific to women but to make the law all-inclusive safeguards should be extended to those who are unreasonably roped in and unnecessarily harassed. The Law Commission Report[xxi] expresses that the social purpose behind it will be lost if the rigour of the provision is diluted.
The misuse can be curtailed within the existing framework of the law. The intent of the Act needs to be guarded and make sure that it is not used merely as a bargaining tool. It is imperative to show consciousness to the growing requirements of a society in law. The judicial approach should never be pedantic and rigid but accommodative of issues of the day and foreseeable future.
Smt. Pratibha Patil, the first woman President of India while addressing the National Conference of Lady Lawyers and Lady Teachers on Justice for Women expressed that Laws made to prevent women from harassment should not become instruments of oppression and calling upon the legal fraternity to ensure that provisions designed to prevent exploitation and suppression of women are “fairly invoked” and “honestly implemented”.[xxii]
[i] Law Commission of India, Report No. 243
[ii] State of Kerala v. Sheeja Prison, Cr. Rev. Pet. No. 328/2013
[iii] Black Laws of England, Volume II
[iv] The Protection of Women from Domestic Violence Act, 2005
[v] Ambreen Akhoon v. Shri Aditya Arun Paudwal, W.P No. 5648/2015
[vi] Ambreen Akhoon v. Shri Aditya Arun Paudwal,2015, W.P No. 5648/2015
[vii] Sou. Sandhya Manoj Wankhade v. Manoj Bhimrao Wankhade, SLP (crl.) No. 2854/2010
[viii] Cr. Rev.P. No. 328/2013
[ix] SLP (Crl.) No. 2854/2010
[x] Vijaya Verma v. State of NCT Delhi, 2010 Crl. M.C. No. 3878/2009
[xi]Sejal Dharmesh Ved v. The State of Maharashtra & Ors (4) APL 160/11
[xii] Kuldeep Singh v. Rekha M.Cr.C No. 5644/2016
[xiii] Smt. N.S Leelavath v. Dr.R. Shilpa Brunda ,2019 Cr.R.P. 1146/2019
[xiv] Amit Agarwal v Sanjay Aggarwal,2016 SCC Online P&H 4200
[xv]Prakash Vinayak Gaikwad v. The State of Maharashtra,2020 Cr. W.P 4806/2019
[xvi] Kamlesh Devi v. Jaipal & Ors,2019, SLP (Crl.) No. 34053/2019
[xvii] Shyamlal Devda v. Parimala , MANU/SC/0067/2020
[xviii] Cr. W.P 4806/2019
[xix] MANU/SC/0067/2020
[xx] Vijaya Baskar v. Suganya Devi,2010
[xxi] 243rd Law Commission Report
[xxii] http://pratibhapatil.nic.in/sp261208.html