Manupatra Legal Essay Competition, 2009

GENERAL INFORMATION

01. Name: - Mr. Shail Shakya

02. Date of Birth: - 22nd May, 1989

03. Address: - Room No. 205, Boy’s Hostel, Dr. Ram Manohar Lohiya National

Law University, Sector-D1, LDA Colony, Kanpur Road Scheme, Lucknow, PIN-

226012

04. Telephone No: - 9598250590, 9580383289

05. Email:- shail.shakya1@gmail.com; shail.rmlnlu@gmail.com

06. Name and Address of college/university: - Dr. Ram Manohar Lohiya

National Law University, Sector-D1, LDA Colony, Kanpur Road Scheme, Lucknow,

PIN- 226012

07. Student identification number/ Roll No. : - 200624 (enrollment number)

08. Course:- B.A., LL.B. (Hons.) [Five year integrated course]

09. Academic Year: IV th year

Manupatra Legal Essay Competition, 2009

ABSTRACT FOR THE ESSAY

TITLE OF THE ESSAY:- Do We Need Gender Biased Laws- Domestic Violence Act

BRIEF SYNOPSIS:-

THE constitution of India, in most expanded interpretational analysis, has done

whatsoever possible, to curb all the incidents that could be subrogated with the events
of discrimination and biasness. After so many years of debate and research, India
came out with Domestic Violence Act with the spiritual as well as legal perspectives
and high aims. The central issue that still is pending for concluding remarks is this
that “Whether the issue of Domestic Violence has been resorted in more anti-men
approach?”. The matter is not just constitutional but in the wider terms is practical,
humanitarian, moralistic and of pursuit of justice. The facets of the judicial process
are the demarcating features through which the fact that “there is a shift from the
regard to legal values to have more and more regard to human values”- could be
appreciated and enlightened. The substantive analysis clearly gives momentum to
issues pertaining to the success of the legislative interpretations and justice being
imparted and administered in an inquisitorial legal system. Retrieving the importance
of protection and enforcement of the fundamental rights, there should be emphatic
illustrations to be done on principles of natural justice. Reflections of social justice
and empowerment without consideration to the realities of human rights could not be
prima facie ignored. The unanswered questions in relation to the gender biasness in
furtherance of the concept of equality are to be aptly dealt and answered. The core
issue that penetrates the minds of the concerned is this that:- “As per the experts on
the subject, the law in its widest dimensions of administration and interpretation,
treats the husband and the wife as the one and the same person, being natural in the
ordinary discourse of course; then, in what context possible, the law may itself
subject the rights, liabilities and governance of the husband and the wife in two
separate and distinct legislations?-evidenced by the fact that the current legislations in
India are feministic in their approach. The debate has no ends to meet as far as the
indirect involvement of the human rights tend to complicate the issues in hand. The
conclusion could be carved out just on the basis of legality and morality but will these
as well lead us to a fair, impartial, unbiased and unconfused democratic legal system
et. al. In light of the issues presented, arguments from both husband and wife could
be advocated to resolve the indeterminate matrix on the count. Applicability and the
misuse are also to be admired while arriving at the conclusion as to the biased nature
of the legislation. The specific illustrations and the depths of the phrase “equal
protection of the laws” as enshrined in the Art.14 of the constitution are to be cross-
examined in a great detail. Gender inequality may have substantial impacts upon the
communal harmony and the national integrity of the nation as the country tends
towards imparting justice and equality to all thus maintaining the supremacy of the
law of the land.
Manupatra Legal Essay Competition, 2009

BODY OF THE ESSAY

There has been a great debate and conflicts as to the equality of the men and women

before the laws and equal justice to be rendered to both of these. The term “domestic

violence” was for the first time appreciated with a great spirit in this struggle for the

enforcement of the rights of women and protection of the same from the incidents of

domestic violence.1 The regard to the equal status and freedom of opportunity were

some of the notable points over which the Rajya Sabha of India had started promptly

answering the reasons for the misdemeanors done by the husbands to their wives.

Emancipation of leading activists, NGOs and Feminists has resulted the enactment of

this legislation. Whatsoever required; observing the protection of the women with the

tools of the legislation, was done by the government.2 Experiencing the lessons from

the flawless fatality of Sec.498-A of the Indian Penal Code, the misuse of the laws

and the loss to the innocents were the main concerns of the law commission and the

parliament this time.3 These laws tend to pose the question before the government and

the constitutional protectors that whether men are not entitled for the equal protection

1
In 1999, the Lawyers Collective came out with its draft law on domestic violence after nation-wide consultations
with many women's groups. Drafted in accordance with the UN Framework for Model Legislation on Domestic
Violence, this bill had the broad support of the women's movement to its major provisions. After much pressure
from women's groups, the Government of India introduced a Bill on domestic violence in the Lok Sabha, titled
'The Protection From Domestic Violence Bill 2001'.

2
Implementation was pending as detailed consultations were required with the State and other agencies for
framing the rules. The Ministry has simultaneously issued another notification laying down the rules framed for
the implementation of the Act. These rules may be called "The Protection of Women from Domestic Violence
Rules, 2005". These rules provide for, among other things, appointment of protection officers, service providers
and counselors. Action can be taken in the event of the respondent breaching the protection order passed by the
Magistrate in favour of the aggrieved woman, which is also provided in these rules
3
Judge J.D.Kapoor (Delhi High Court) urged the review while rejecting a plea by a woman petitioner, Savitri
Devi, seeking the arrest of her brothers in-law and sister in-law for allegedly harassing her by demanding more
dowries. Kapoor said in his order passed: “I feel constrained to comment upon the misuse of the provisions (of
law) to such an extent that it is hitting at the foundation of marriage itself and has proved to be not so good for the
health of the society at large”. The judge observed: “There is a growing tendency to come out with inflated and
exaggerated allegations, roping in each and every relation of the husband. If one of them happens to be of higher
status or of vulnerable standing, he or she becomes an easy prey for better bargaining and blackmailing.
Manupatra Legal Essay Competition, 2009

of the laws as against women in matters of cruelty under Sec. 13(1) (i) (a) of the Act.

The legislation is thus feministic in approach and anti-men.

INTRODUCTION TO THE TOPIC

The issue of gender inequality in some legislation like the Domestic Violence Act,

2005 has been the important point to focus upon. The fact that the legislation has been

implemented for the protection of women from the domestic violence stands in the

ambit of examination. If we lay emphasis upon the fact that domestic violence Act

has limited application being feministic, we drive the conclusion that domestic

violence may happen with anyone including the men as well. By contrast, the Indian

Domestic Violence Act specifically and clearly exculpates women from being

prosecuted as the principal accused of Domestic Violence, excepting mothers, sisters,

etc. of the accused man being prosecuted as abettors etc., and also specifically

provides that the prescribed reliefs, such as maintenance, restraining orders, can be

obtained ONLY by a woman and NEVER against a woman!.4 Domestic violence may

happen to men and children as well, but who is there for their rescue? For the sake of

the legislation, the term domestic means inside a family or between a relationship but

in noway has connoted the same to imply only for the women. Domestic covers men,

children, relatives and friends and many more as well. The verity that the only

beneficiaries of the Act are the women is substantiation of the statement that the

legislation is anti-men.5 Men and women should not be discriminated or this is not a

reasonable classification in so far as the fact that both are prone to domestic violence

4
http://mynation.net/study-report-dvact.htm
5
Who are the primary beneficiaries of this Act? Women and children. Section 2(a) of the Act will help any
woman who is or has been in a domestic relationship with the 'respondent' in the case. It empowers women to file
a case against a person with whom she is having a 'domestic relationship' in a 'shared household', and who has
subjected her to 'domestic violence'. Children are also covered the act; they too can file a case against a parent or
parents who are tormenting or torturing them, physically, mentally, or economically. Any person can file a
complaint on behalf of a child. (http://www.rediff.com/news/2006/nov/01spec.htm).
Manupatra Legal Essay Competition, 2009

has been accepted.6 It has been accepted and well admired even by the Hon. Supreme

Court of India that the legislation has been cynically ignorant of the first principle of

human rights, dignity, law and justice.7 It could be said that the struggle for the rights

of the women is greatly disturbing the decorum maintained by Part III of the

constitution. Another thing to be taken into consideration is the misuse of the special

legislation. It has been used as a tool by the women for harassment and blackmailing

of men. This fact is substantiated by the reality that most of the men prove their

innocence in such cases even before trial. If this is not probably the misuse, then what

it really is?8 If we go with this interpretation, the struggle becomes more and more

psychological rather than constitutional or legal. The man if subject to cruelty by his

wife hesitates to speak off because of his reputation and several other these annexed

thereto. The special legislation that has been enforced for the protection of the women

is now indicted for several serious consequences leading to family disturbances and

domestic irregularities being created by the women.9 In light of these arguments, we

6
Proof that women are not the only victims of domestic violence appears in the 1998 Justice Department report
"Intimate Partner Violence." Of 1,830 domestic-violence murders, 510, or almost one-third of the victims, were
men. The study also indicated that males are 13 percent less likely to report being a victim of intimate violence
than females. Another 1998 Justice Department report, "Violence Against Women Survey," found that while
1,309,061 women were assaulted by an intimate partner in the prior year, 834,732 men were victims of domestic
violence, 39 percent of the total. Extensive research concludes that men and women are almost equally likely to
initiate domestic violence. While women may be more severely injured when domestic violence escalates, they
can and do commit serious crimes of violence against men. Women's advocates continually downplay the
existence of female violence. This obscures the fact that men are at risk of being victimized, and leaves them less
prepared for the potential for violence against them.
(http://mensightmagazine.com/Articles/Scott/genderbias.htm)

7
The Protection of Women from Domestic Violence Act (DV Law), which evens the Hon’ble Supreme Court of
India, has termed as clumsily drafted, has several provisions that are wrong and goes against the common sense
and tramples the fundamental rights, such as equal protection under the law and the right to own property. This is
to bring to your notice these wrongs and request a review for changes, or scraping of this Law to help the society.
Under section 17 of the DV Law, women can seek entry into any house, she ever lived in the past 10 years,
whether she has any claim or right to it or not. (http://savefamily.org/index.php?Itemid=63&option=com_content)
8
Still in this special LAW more than 92.3% People proved their innocence, where as in normal IPC the
convection is more than such LAW, then why need this special LAW? The Answer : To do the Legal Terrorism
and earn the money from Husband's Family as a whole sale free license and openly Blackmail and do the extortion
of money by Wives family in front of Police/Court/Media and the same is not to be termed as crime.
(http://savefamily.org/index.php?Itemid=71&option=com_content)

9
According to Pandurang Katti, one of the 12 SIFF founders and a senior software professional, men face a host
of issues due to lack of protection from the law. "The current Domestic Violence Act suffers from gender bias as it
is only made for protection of women," he said. Uma Challa, director of the US-based Protect Indian Family
Foundation which has opened a branch in Hyderabad, said: "Women call me up just to ask if they can use the Act
Manupatra Legal Essay Competition, 2009

can state with confirmation that the legislation stands biased without any meaningful

purpose. There is no problem in providing rights to the women through such

legislation but the same should uphold the rights of the men as well. The terms like

cruelty, torture, abuse are included in the Sec. 498-A10 of the Indian Penal Code and

enforcement and the administration of the same should be ensured rather than

overburdening the judiciary by enacting such special legislations. The equal

protection of the laws as is guaranteed by the constitution of India appears to be of a

diminishing value in this context in so far as the protection is accorded only to the

woman irrespective of the fact that violence exists in a relationship and not

necessarily only with a woman. The more favored connotations of the legislation

makes it gender biased in the sense that the biasness is now coloring into the spirits of

exploitation of the men on the contrary. It is thus submitted in the context thus

emancipated that the legislation has clumsily upheld the rights of the women without

taking into consideration the further and future consequences likely to happen with

the innocent men. On the other hand, the legislation creates undue burden over the

judiciary of the nation saved to the context that the court is now busy in determining

the truthness of allegations made by the woman.11

to bring around their husbands or to separate them from their parents. They do not understand the seriousness of
the law. This is predominantly an urban phenomenon," she said. "We have websites and helplines that reach out to
only internet-savvy people. But we want to create awareness among those who do not have access to the net," she
added. (http://www.dnaindia.com/india/report_harassed-husbands-now-take-to-the-streets_1146460)

10
498A. Husband or relative of husband of a woman subjecting her to cruelty. Whoever, being the husband
or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment
for a term which may extend to three years and shall also be liable to fine. Explanation-For the purpose of this
section, "cruelty" means- (a) Any willful conduct which is of such a nature as is likely to drive the woman to
commit suicide or to cause grave injury or danger to life, limb or health whether mental or physical) of the
woman; or
(b) Harassment of the woman where such harassment is with a view to coercing her or any person related to her to
meet any unlawful demand for any property or valuable security or is on account of failure by her or any person
related to her meet such demand.] (http://www.vakilno1.com/bareacts/IndianPenalCode/S498A.htm )

11
India is a country that has adopted the inquisitorial system of justice dispensation whose primary
objective is to impart justice and not to waste time in exploring the legitimacy of the statements made
by the woman. Thus, the legislation creates undue influence upon the courts as most of the time gets
exhausted in determining the legitimacy of the allegations.
Manupatra Legal Essay Competition, 2009

THE CONSTITUTIONAL PERSPECTIVE

There is a fact to be substantiated with the conversation that the constitution is the

supreme law of the land and the varsity of the same is to be maintained. In

furtherance of the fact, interpretation of some of the features of Part III; particularly

Art.14 and Art.15 is to be duly appreciated and rewarded. The illustrations as to the

nature and extent of the proclamations that could be made under Artr.14 seem to be

erroneously interpreted by the legislature. The demand of equality (amongst women)

by the leading feministic activists and other NGOs have been circumscribed within

the purview of the term “equality before the laws” and which enshrines the reason as

to why the legislation appears biased. It could be clarified here that the right to

equality under Art.14 of the constitution earmarks another provision which entertains

“equal protection of the laws”. The current issue; on the other hand, could be

summarized as follows: - “The Domestic Violence Act, 2005 is thus congratulated

for succeeding in its struggle for the claim of equality for the women and thus

clarifying the meaning of “equality before laws” under Art.14 but the same

should be summoned to state the reason as to why there is no appreciation; done

by the legislation, of the phrase “equal protection of the laws” even after being a

part of the Right to Equality”. The conclusion is thus brought out that the

legislation has been drafted in an anti-men approach and is clearly biased. There is no

evidence that the scope of the Act extends for the protection of men from cruelty

being done by the women. It shows that the meaning of domestic violence has been

delimited by the legislature and is narrowed to women solely. The benefit is thus only

to the woman and children but there is no one for the rescue of men.12 It depicts that

12
An aggrieved person as defined by the Act is a woman who is, or has been in a domestic relationship
with the respondent. While the Act does define a child as any person below the age of eighteen years,
the definition of domestic violence itself refers at all stages only to an aggrieved person and not to a
child; the only relevant place in which a child is mentioned is S.18(c),
Manupatra Legal Essay Competition, 2009

the legislation contravenes Art.14 which commands for equal protection of the laws

to be done among the citizens. As far as this argument is ascertained, the fascinating

feature of the legislation is this that in the whole of the Act, everything has been

mentioned in a negative way. It pops out the question that whether negative language

is to be interpreted in a negative way? The conclusion that the Act is not negative but

is discriminatory holds the weight here. A legislation; which under the umbrella of

protection of women from domestic violence, provides the woman a naked tool to be

used for exploitation, harassment and extortion of money from the man, contravenes

the spirit of the constitution (social order) and is also substantially affecting the health

of the society at large and thus should be ceased to operate rather than disinfect the

social peace of the families. Another thing which has been brought into the

interpretation as far as the issues of constitutionality is explored in the legislation. As

per the connotations; all forms of discrimination, on the basis of the criterion

provided for in the constitution has been discouraged. The nature of the Domestic

Violence Act gives rise to a discriminatory connotation of the provisions enshrined

and thus happens to be biased as to the upholding the rights of the men have been

underestimated. As per Art.15 of the constitution of India, discrimination on the basis

of sex, religion, place of birth etc. has been prohibited in all the forms whatsoever

they may be. On a conclusive reading of Art.21 of the constitution, the right to life

extends to right to life with dignity and should be interpreted in accordance that

unreasonable discrimination and classification. The legislation thus stands in the

contravention of the basic tenets of the constitution and the fundamentals have been

found to be vitiated by the laws in general. It imposes the question that whether the

detention of the rights of the husband in this discourse stands justified as far as

possible. It is then entertained in the defense of the discrimination that Art.15 even
Manupatra Legal Essay Competition, 2009

though prohibits discrimination on the basis of sex1314, the constitution entrusts the

power upon the state to make special laws in respect of women and children. The

definition as has been provided under the Act of domestic violence nowhere has

specifically mentioned that the phrases used therein extend to women only and the

rights of women are solely enforced. This is a psychological disaster that it is

presumed that the man may be wrong or violent but in ordinary prudence, the woman

is not so considered at all! This causes a severe violation of the fundamentals of the

human rights.15 In light of the arguments advanced above, it could be abruptly said

that the Act has been engaged in misdemeanors and is unreasonably trickling the

issues in point. The analysis and case study reveals that the courts have accepted that

the provisions of the Act have been clumsily drafted and are violative of the

fundamental rights in general. Misuse of these laws is another disrupting feature.

THE LOGICAL INTERPRETATION: BUSHES UNLEASHED

Following is the elucidation of some points that are to be highlighted in respect of the

demography of the domestic Violence Act in India: - The Domestic Violence Act,

2005 giving protection to women from domestic violence is a step in right direction.

13
The terms "sex" and "gender" are often used interchangeably in everyday life, but in sociological literature they
are frequently differentiated. The term "sex" is applied to differences between men and women that are based on
female or male attributes. The term "gender" is applied to the cultural aspects of male and female roles. In other
words, the behaviour, personality and other social attributes that are expected of males and females become the
basis of masculine and feminine roles. Sexuality and the different capacities of men and women in the reproductive
process are particularly likely to be thought of as giving "natural" reasons for gender divisions in society.(
http://www.ebc-
india.com/practicallawyer/index.php?option=com_content&task=view&id=947&Itemid=99999999)
14
Vishaka v. State of Rajasthan7 In this judgment the Court has traced the provisions in the Constitution which
prohibited discrimination on the ground of sex, as also the provisions dealing with the requirement to give effect to
international treaties. The Court makes a special reference to CEDAW in paragraph 13 of the judgment by quoting
the general recommendations of CEDAW in respect of sexual harassment, some of which are very relevant in the
context of the article
15
In Kesavananda Bharati v. State of Kerala Chief Justice Sikri observed: "148-49. I may here mention that
2

while our fundamental rights and directive principles were being fashioned and approved of by the Constituent
Assembly, on 10-12-1948, the General Assembly of the United Nations adopted a Universal Declaration of Human
Rights. The Declaration may not be a legally binding instrument but it shows how India understood the nature of
human rights."
Manupatra Legal Essay Competition, 2009

By including the unmarried sisters, mothers, widows, etc. in the list of women facing

domestic violence the Act has ensured full proof protection to the harassed women.

But the main problem has always been the reticence of women not voicing their

protests and complaining and not the law. The mindset of the women has to change.

While the intention of the Domestic Violence Act is laudable, the Act itself is

draconian and very harsh on men. Following are some of the dangerous flaws in the

said Act. Section 32(2) says that “upon the sole testimony of the aggrieved person,

the court may conclude that an offence under sub-section (1) of Section 31 has been

committed by the accused.” By treating the victim’s testimony as gospel truth without

any need for corroboration it has virtually empowered all women to punish men at

their will. This is very dangerous for innocent men. As it is the rape, adultery and

dowry laws are already skewed in favour of women. And now this Act would leave

the men with absolutely no remedy against the erring women who would lodge false

complaint. All she has to do is to go to the court/police, register the case and the

husband will be right behind bars in a jiffy. Chapter IV Section 17 makes the “right of

residence” a powerful tool in the women’s hands whether or not she has any title in

the household. By including the divorced wives, former girlfriends and live-in

partners in the list of women facing domestic violence this Act has enough leeway for

women to misuse the law. Why should a divorced wife who has legally separated in

the court of law and who has also received proper alimony, should have any right in

the husband’s household? This is an open invitation for conniving women to harass

innocent men. And why should live-in partners and girlfriends be included in the list

since these are not legally recognized relationships in India. Now, any woman will get

into a relationship with men and demand their right in the household? Also, an

adulterous woman can abuse her husband or in-laws and threaten them of false
Manupatra Legal Essay Competition, 2009

domestic violence but she cannot be thrown out of the house as per the Act. She could

even bring her paramour/lover to the house and the husband or in-laws can’t do a

thing about it. Chapter II Section 3 of the Domestic Violence Act defines domestic

violence as actual abuse or threat of abuse—physical, verbal, emotional or economic.

While physical and economical abuse can be proved it is almost impossible to prove

verbal and emotional abuse, which could result in women registering false cases as

they won’t have to prove anything (they don’t have to prove anything anyway). And

why not add spiritual abuse, philosophical abuse, educational abuse, etc. under

domestic violence? Section 18 allows the Magistrate to protect the women from acts

of violence or even “acts that are likely to take place” in the future and can prohibit

the respondent from dispossessing the aggrieved person or in any other manner

disturbing her possessions, entering the aggrieved person’s place of work or any other

place that the abused women frequents…. This means that the husband and his family

(parents, sisters, etc.) must leave their own house as the Act does not allow them to

come to a place where the aggrieved women stays or frequents. But she gets to stay in

their house (and may be with her lover). Wow! Moreover, how can the future

(imaginary?) acts of violence (acts that are likely to place) can be considered for

punishment is beyond comprehension. Why pre-empt such dangerous thing. Chapter

III Section 4 of the Act says that the information regarding an act or acts of domestic

violence does not necessarily have to be lodged by the aggrieved party but by “any

person who has reason to believe that” such an act has been or is being committed.

Which means that neighbours should take initiative on behalf of the victim? “Why

should any person who has reason to believe that such act has been committed” be

allowed to register a complaint just on his/her belief? What about authentic proofs

and evidence? It also means that even a wife’s paramour/lover can now file a
Manupatra Legal Essay Competition, 2009

complaint on her behalf. Isn’t this great! It has also been found that in the event of

altercation the police generally arrest the husband and the in-laws. This arbitrary

decision of the police to favour the daughter-in-law is a newfound ethics, to protect

the rights and liberalization of the women and it violates the principles of natural

justice. Law should take its own course to punish the guilty whoever it might be. The

important flaw in the Act is inclusion of live-in partners or any sexual partners

[Chapter I Section 2(a)]. This automatically gives legitimacy to live-in relationship.

Isn’t this unfair for legally wedded wives? Won’t the promiscuous husbands now take

advantages of this bill? There are many such howlers in the Domestic Violence Act.

The Domestic Violence Act, under the garb of protecting harassed women, has now

actually become a powerful tool in the hands of women to harass men and strip them

off all their rights. The Act will actually worsen the domestic problems leading to

breakdown in marriages as women will now be tempted/encouraged to go to

courts/police after trivial fights or heavy fights happening in the heat of the moment.

The Act discourages women to rectify their mistake. The Act not only gives sweeping

powers to females but also takes away all the rights of men. While it imposes a lot of

responsibility on men, it gives lot of rights to women who misuses the law? While

domestic laws are enacted to save the poor female, there have been many cases where

many cunning unscrupulous women have misused these laws to their advantages. For

example, the misuse of Section 498 meant to protect women from cruelty and dowry

harassment. There have been cases where women were incited by the family members

to take revenge to settle family disputes by registering false cases. Such gags of

extortioning money from innocent men and to wreck vengeance will now grossly

misuse the Domestic Violence Act that is made to protect women. By making a one-

sided Act, wives, live-in partners will now be tempted to use it against their
Manupatra Legal Essay Competition, 2009

husbands/partners. Feminists would aver as to why a women would file a case if she

is happy in the marriage. But that would be like saying that men are under mercy of

women. If wives or live-in partners are not happy for whatever trivial reasons, they

can now turn the table on their husband by filing false cases irrespective of whether

any violence occurred or not. Gender partisanship is wholly out of place in the cases

of domestic violence. Tweaking the way the law is interpreted in such a way so as to

diminish responsibility for one sex or the other could have mortal consequences for

poor men. Domestic violence is too grave a matter to be an area where the radicals

can show off how feminist they are. And at present domestic violence is a feminist

issue. For the courts and women organizations, it is a matter of obvious mistruth that

women cannot commit domestic crimes or that women cannot register false rape

cases. Why shouldn’t men also have protection against domestic violence? Why can’t

the same factors attributed to men for harassing their wives can also be attributed to

women? There are numerous cases of male harassment and a study of physical and

verbal abuse of men by women will bring out a clear picture. Suicide rate of men in

India goes up by almost 50% after marriage due to emotional abuse. The Komolikas,

Pallavis, Kaaveris, Jigyaasas, etc. of India would relish the Domestic Violence Act,

2005 and the Act gives a lot of scope for corrupt lawyers and bribes for police, NGOs

and politicians to make lots of money. The innocent men, women, children, etc. will

only get discriminated against. Let there be strict laws for domestic violence and strict

punishment for guilty and abusive men but let there not be biased laws heavily in

favour of women that would only end in broken marriage and relationship. The

Domestic Violence Act needs immediate and complete overhaul.

THE MISUSE OF LAW: FACETS OF JUSTICE

Manupatra Legal Essay Competition, 2009

To start with the story, it is important to have trailers like these: - Sonia Vs Vinod16:

“A CITY court has dismissed a petition of a woman against her family members on

finding she was harassing them, misusing the Domestic Violence Act in the process.

Dismissing the complaint, Metropolitan Magistrate Shahabuddin said, “I am prima

facie of the considered opinion that the complainant is not cooperating with her in-

laws. She prima facie appears to be harassing them on trivial matters”.

Complainant Sonia had approached the court in August, alleging her husband Vinod

and his mother and sisters used to physically harass her for bringing insufficient

dowry. The court, however, declined to allow her complaint, asking a number of relief

s, including right to residence. “The woman failed to satisfy this court that her

husband or any of his other family members had really committed any domestic

violence against her”. Discriminatory laws like IPC 498A and DV Act are harming

men, women and children of India. Due to lack of social support and legal protection

many male victims of domestic abuse are taking their lives everyday. Recently, the

increasing threat of false cases is also driving many married men to commit suicide.

False cases are severely hampering the personal and professional lives of the most

productive section of the Indian population. Aspirations of young men and women are

being crushed, and their most fruitful years are being wasted in litigation. Many men

have lost their jobs or have had to quit their professions as a result of the never-

ending legalized harassment. Parents are heart-broken to see their sons lose their

youth, health, careers, all their earnings, and sometimes even their lives, as they are

mercilessly tortured by their estranged wives, aided by the law enforcement system.

Retired elders are, thus, being denied mental peace in their old age, resulting in

deterioration of their health, and in many cases their premature demise. Falsely

16
IN THE COURT OF DR. SHAHABUDDIN : MM : ROHINI :DELHI
Application No.1192/1, PS Sultan Puri, U/s 12 of Domestic Violence Act, 2005
Manupatra Legal Essay Competition, 2009

accused senior citizens have also ended their lives unable to endure the humiliation of

being arrested and the trauma of fighting false cases. The so-called women-protection

laws are also causing more harm than good to women. In every false complaint at

least two women, a mother-in-law and a sister-in-law, are accused. Minor girls,

pregnant women, married and unmarried sisters, ailing mothers and even aged

grandmothers have been sent behind bars based on mere allegations, and subjected to

long-drawn trials before being declared innocent. Many falsely charged, poor and

illiterate women are languishing in prison every year. Due to an excess of false cases

and the systemic corruption, genuine victims of domestic abuse are denied timely

justice. Children are not being spared from the suffering either. In case of marital

disputes children are being denied access to their fathers, causing great pain to the

fathers and children. Children are also being arrested under false charges of dowry

harassment, and imprisoned along with older family members. In other cases,

children are being torn apart from their parents who are hauled away by the police in

front of their eyes, causing indelible scars and fears in their young minds. Indians

residing abroad are equally vulnerable to legalized harassment. Passports of falsely

accused NRIs are being impounded. Several individuals who visited India are unable

to return to their respective countries of residence, and several others continue to live

abroad in fear, separated indefinitely from their loved ones in India. Interpol Red

Corner Notices are being misused to force many overseas Indians to return to India.

Unreasonable and easily misused laws like IPC 498A and DV Act are creating a

situation of fear and mutual distrust, and adversely affecting interpersonal

relationships between men and women in the society. There is a fear psychosis among

men who find it difficult to repose faith in women or marriage. Increasing number of

women are being misled by false notions of liberation and empowerment, and being
Manupatra Legal Essay Competition, 2009

encouraged to shun family life. Due to misuse of laws like IPC 498A and DV Act

numerous families have been broken beyond repair, and are suffering immeasurable

economic hardship and emotional trauma. The country has already incurred a huge

social cost in addition to the enormous financial burden imposed on the public

exchequer. How does the Government propose to compensate individuals for their

personal losses, and more importantly, how will it explain the squandering of tax

payer money to sponsor its discriminatory politics? Victims of legal discrimination –

the grim statistics The statistics on suicides in India tell the tale of harsh ground

realities faced by men in Indian society. In the recent years, the number of suicides by

males in every age group studied outnumbered the number of suicides by females in

those respective age groups. Nearly twice as many married men committed suicide

compared to married women in the years 2004 and 2005. Also, nearly twice as many

men separated from their wives committed suicide compared to separated women in

both years. Men outnumbered women in every method of committing suicide, except

by fire and self-immolation. Nearly nine times more men committed suicide by

consuming excessive amounts of alcohol, or by machines. Nearly four times more

men committed suicide by firearms, by jumping of trains and fast moving vehicles, or

by self-electrocution. In almost every other category of suicide such as hanging,

poisoning, or overdose of pills etc., suicides of men were nearly twice the rate of

suicides of women. Overall, the total number of suicides by men nearly tripled

between 1983 and 2005 (whereas during the same period female suicides only nearly

doubled). Incidentally, the draconian provisions of IPC 498A were introduced in the

year 1983, and overwhelming evidence points to the increasing misuse of these

provisions ever since. Every year, there is a rising number of cases fabricated by

wives only to threaten, extort money from, and wreak revenge on husbands and their
Manupatra Legal Essay Competition, 2009

relatives, in case of marital discord. Between 1995 and 2005, the number of cases

filed annually nearly doubled. According to data obtained from the Ministry of Home

Affairs, in the year 2005 alone, 58,319 cases were registered under charges of cruelty

by husband and relatives (IPC 498A), and resulted in the arrest of 1,27,560

individuals including 339 children, 28,579 women and 4,512 adults over the age of

60. However, the statistics reveal only a small part of the grim reality. Under Section

498A, an individual is charged with a non-bailable, cognizable criminal offense, and

is presumed guilty until proven innocent. The accused have to fight the highly corrupt

state machinery at their own personal expense, all the while carrying the presumption

of guilt on their heads. Sometimes, they lose their employment. Often, they are

forced to travel to a different city or state to fight their cases. Where would these

falsely accused men and women gather the strength and the resources needed to fight

the corruption and public prosecution effectively? If the accused are already indigent

and cannot afford the best defense money can buy, their fate is sealed. They become

mere statistics in the arsenal of the proponents of this draconian legislation. Against

this backdrop, one has to examine the statistics of conviction. In 80% of the older

cases that concluded in year 2005, the accused were found not guilty. The same is true

for the years 2003 and 2004 as well. Multiple sources indicate that, nearly 98% of all

498A cases result in acquittal of the accused. Despite the presumption of guilt and the

overwhelming odds the accused is forced to face, the convictions are only a small

percentage of the total cases filed. Isn’t this is a clear indication of how frivolous the

charges usually are and how widespread the abuse of the system is? The Government

needs to act NOW Save Family Foundation urges the Government of India to make

the following amendments to the law and ensure that ordinary citizens of India are

spared from needless harassment:

Manupatra Legal Essay Competition, 2009

1.Section 498A of IPC should be made bailable.

Section 498A, being non-bailable, allows punishing the accused by imprisonment

even before guilt is established. This goes against the Universal Declaration of

Human Rights which states that everyone charged with a penal offence has the right

to be presumed innocent until proved guilty according to law. Abused women need

protection, but placing unconditional faith in the statements of a woman and

confining the accused husband and his family in police or judicial custody, until bail

is granted by a court, is not the way to accord protection to women.

2.Section 498A of IPC should be made non-cognizable.

Innocent citizens are being arrested everyday based on mere complaints without

requiring evidence or investigation. Even children and senior citizens are not being

spared. IPC 498A, being a cognizable offence, violates a citizen’s right to due

process.

3.IPC 498A and Domestic Violence Law should be made gender neutral.

Domestic abuse is not gender specific. The assumption that victims of physical,

verbal, emotional, sexual, and financial abuse are always women is wrong. According

the Universal Declaration of Human Rights "all are equal before the law, and are

entitled without any discrimination to equal protection of the law". Hence, men

should also be accorded protection from physical, verbal, emotional, sexual, and

financial abuse by women.

4. Persons who misuse IPC 498A and Domestic Violence Law should be

penalized.
Manupatra Legal Essay Competition, 2009

Misuse of the process of law not only costs the public exchequer dearly, but also

destroys the personal lives of many innocent citizens. Misuse of law should be treated

as a serious crime, and persons who use women-protection laws as weapons for

settling personal scores in marital disputes should be severely punished. Gender

Biased LAW should immediately be made crime based instead of any assumption that

all women never lie and all the men are born as Criminals. "MEN/WOMEN" word to

be replaced by word "PERSON" and word wife/husband to be replaced with the word

"SPOUSE".

CONCLUSIONS DRAWN AND SUGGESTIONS IMAGINED

As the whole of the issue went on entirely in favour of amending or having

substantial changes in the laws relating to the protection of women from domestic

violence, some of the notable points that have stroke at numerous instances could be

summarized in the enumerated form below:-

1. The present law relating to the protection of women from domestic violence is

not wide as it has been erroneously interpreted by the legislature that the

domestic violence may only happen with the woman but the same extends to

man and children17 as well and as per the perpetual quest for absolute justice,

the interests of the men and children should also be safeguarded and rescued

ensuring equality before the laws and the equal protection of the laws in

general.

2. It is totally wrong to assume and biased view that each and every suicide of a

women due to men and all the suicide of men the same to be termed as social

17
We wonder whose life is in More Danger in India: Men or Women.
Crime Bure data 2005 : Married Men Sucide : 52k vs Married Women Sucide 28K.Still there is no LAW to Protect
Men why? {http://ncrb.nic.in}
· 2006 Crime Bure Data : Married Men Sucide:55452 vs. Married Women Sucide:29869.
Manupatra Legal Essay Competition, 2009

service by women , even when it is clear evidence that the women is

responsible for the suicide of the men , still such women get Scot free . The

SIFF Study reports “Domestic Violence against Men” confirm the same

beyond the reasonable doubt (Enclosed for your reference). If we consider the

definition of the Present DV act, like Verbal abuse, mental abuse, economical

abuse, Physical abuse and sexual abuse, more than 98% Men also face the

same at their Home.

3. While Judiciary seems to have a taken a much more proactive stance in

containing misuse of DV laws compared to 498a and dowry law where in

almost a free for all free reign has been given to misuser . The obvious misuse

and abuse of families cases in DV are too numerous. All the cases filed with

only one intention to extort the money form the husband’s family, nothing

else.

4. In short, the DVA-2005 in its enthusiastic thoughtlessness has throttled all

avenues of reconciliation, has weakened the foundations of the institution of

marriage, and vitiated conjugal life by developing a false sense of ego and a

fictional helplessness among women. When it comes to man-woman

relationship let us listen to the traditional but sane voice of John Milton, the

English poet and moralist. Milton says that man represents reason and woman

passion. As long as reason dominates passion, there is cosmos, but the

moment passion dominates reason, chaos ensues. Let us view marital life from

this viewpoint for marriage is not a bed of roses but a domestic battlefield.

Unless husband and wife bring immense goodwill and sacrifice to bear upon

their marital fortunes, their situation is desperate. The DVA need to be

replaced by some more benign, sensible, gender-neutral legislation that may

Manupatra Legal Essay Competition, 2009

ensure women their rightful, honorable place at home and abroad, at the same

time not forgetting the rights of men.”18

5. The other problem is that a specious argument by similar set of lawyers is

made that residence right previously not available is being made available.

Nothing can be farther from the truth. Women and men both have same

residence rights in fact women have better rights then men. Both can rent or

buy houses. (Women actually pay less property tax in some states so it

becomes clear that women had marginally superior rights). What has

happened in the new laws that husbands and their families have been denied

their residential rights? If this is not the biased approach of the legislation,

then what it really is? And the court should do home work to explain the

meaning of terms like domestic, cruelty, man and woman, discrimination,

exploitation and biasness for the interests of justice in India.

SUGGESSTIONS OVERWHELMED

• Replace the word “Husband and Wife” with “Spouse”.

• Replace the word “Men and Women” with “Person”.
• Government should make the provision for Shelter Home and other facility to
the victim of Domestic Violence, as an interim relief.
• Establish the Family Court without Lawyers and the Domestic Disputes to be
resolved in Family Court only.
• In case found the complainant had not come to file the case in Clean Hand and
misused the LAW along with Judiciary / administrative authority, they should
be punished and the fine amount should go to Government as revenue.
• Duplication/ multiple maintenance case to be stopped. This is total abuse of
not only the natural Justice Systems and Duplication of LAW, this is the main
motivation for filling false and fabricated case to extort the money from
Husbands family.
• There should not be any direct Compensation to the Complainant, if the
offence proved beyond reasonable doubt the offender should be Punished or
fined and in such fine amount should go to the Government Revenue only.

18
View Point: Domestic Violence Act lacks perspective By Zamir Uddin , Central Chronicle
News.
Manupatra Legal Essay Competition, 2009

The same should be used for the well fare of real victim of Domestic Violence
as a collectively. There should not be any difference or discrimination of Rich
or poor people and different facility. All should be treated as same standard.
• Those cases already 498A/Divorce/CRPC125 or any other cases had been
filed and couple are not staying together and their case already pending in
court , should not be allowed to file another DV case ( This is total Violation
of Indian Constitution of article 20 , where a accused can’t be punished twice
for the same offence)
• WCD (Ministry of Women and Child Development) review committees
consist of all women committees with radical and extreme views. We seek that
representatives of NGO's like Save Family Foundation and their associates
should be included in this committee. This is to ensure that there is balance
and sanity in the review of the law.
• Service providers in DV (Domestic Violence) LAW should be neutral persons
and made accountable for their actions to ensure justice for the greater good of
society. Restricting service providers to women’s group’s activists and
organizations is like asking the wolf to guard the sheep. These groups are not
above temptation to extortion, blackmail and corruption. Besides, who will
monitor their actions and penalize them for abuses? Judges and officials
should be neutral. They should be insulated from pressure and intimidation
under the garb of gender sensitization.

IN ALL THE LIKE DECLARATION IS AS FOLLOWS:-

We don’t need gender-biased laws but we do need laws that can curb the menaces to

humanity and could uphold the true and identified meaning of worship of mankind.

All messengers of the go; including men and women, should be alike in the eye of the

laws and protection of the laws should extend to all of them. We, in spirit of

humanity, should act in furtherance of the welfare of human race and protection of the

genus. In that way, we can do what we imagine, the perpetual quest for absolute

justice!!.

BIBLIOGRAPHY

1. The documents available at the website of Save Family Foundation, in

particular, the Save Indian Family Foundation (SIFF).

Manupatra Legal Essay Competition, 2009

2. Domestic Violence and protection of women, book by Justice A.S. Anand,

Chief Justice Of India, 2004 ed.

3. Publications available at the website of Eastern Book Company, www.ebc-

india.com .

4. Archives and publications with a collaborative study of articles at the web-site

www.ebc-india/practical lawyer.com

5. The reports forwarded by the Law Commission of India (Ministry of Law and

Justice). [174th, 172nd, 216th and 217th Reports]

6. The documents available on the official website of Ministry of Home Affairs,

Govt. of India and National Commission for Women

(http://ncw.nic.in/frmPublication.aspx) .

7. Views circulated by thinkers on the subject in the various blog directories.

8. Other websites that express views by calling replies from the visitors such as

www.dnaaindia.com, www.mensightmagazine.com etc.

9. Books on domestic violence by Indian academicians.

10. Essays, articles, circulars, orders, case briefs available on the internet.

11. magazines such as Yojana, Outlook, India Today, Competition success

Review, Pratiyogita Darpan, Women’s Era, Political Quarterly Journal etc.

12. Other references through law journals and Legal services websites.