Procedural Aspect
As far as the procedures for obtaining the orders and relief are concerned, an aggrieved person or PO or any other person on behalf of the aggrieved person may present an application to the Magistrate seeking relief under this Act. The Magistrate at any stage of the proceedings may direct the respondent or the aggrieved person to undergo counselling. What is important about the Act is that it rejects the Anglo-Saxon notion of locus standi. Anybody on behalf of the aggrieved person may also file a report. Secondly, the Magistrate shall fix the first date of hearing within three days from the receipt of an application by the Court. The Magistrate passes the protection order in favour of the aggrieved person, prohibits the respondent from committing or aiding in the commission of acts of domestic violence, attempting to communicate with the aggrieved, alienating the asset of the aggrieved person. The Magistrate is also empowered to pass an order of residence. From the above it is clear that the Act tries to grant relief to the aggrieved party on an urgent basis but in so doing it ends up in overlooking the ground realities of the situation of the victims of domestic violence as is evident from the judgement pronounced in the following case. The Supreme Court declared in S.R. Batra versus Tareena Batra that a woman could claim this right only in relation to a household owned and rented by her husband.32 The judgement is a clear oversight of the ground social realities of the joint family system in India. Even if the right to residence is granted, in such a situation there is always a threat to the life and dignity of the woman. Consequently she has no way but to search for an alternative shelter. Also the Act acknowledges speedy justice in the cases. Though the law is civil in nature, criminal procedure is to be applied in accessing reliefs.33 Again, though the Act addresses the need to have speedy justice in such cases, it overlooks the security needs of victims of domestic violence. Also the offence under the Act is non-bailable, and anyone may play with the Act and create problems in the family.34
The Magistrate may also direct the respondent to pay the ‘monetary relief’ to meet the expenses incurred and losses suffered by the aggrieved person. However, the Act does not take into account the financial condition of the other party (that is, the respondent)—how the ‘losses’ and ‘expenses’ are estimated being very subjective terms there are again no clear guidelines in the Act. While the maintenance provision under the HMA 1956 clearly defines the amount of monetary support (as maintenance) not to exceed one-third of the total income,35 no such provisions are enumerated in the PWDV Act (2005)—how long monetary relief shall be provided is also not mentioned in the Act. Moreover there is a provision for compensation for the damages and injuries including mental torture and emotional distress by acts of domestic violence. But the entire provision of monetary compensation, relief and other protections is largely dependent on the subjective satisfaction of the Magistrate. The Magistrate may even give custody of the child to the aggrieved (though temporary) which is contrary to the provisions of the Hindu Guardianship Act 1956 which declares the father as the natural guardian36 and which may further create guardianship tussel between the parents causing legal complications for the aggrieved. Ideally justice should be delivered within three months but in view of the fact that the courts are overloaded with work, the case may linger on for months. In many places, including the model State of Andhra Pradesh, cases may drag on for more than six months.
If in case of domestic violence the complaint is registered both under the PWDVA 2005 as well as Section 498-A of the IPC, both the agencies carry out their investigations and if the reports are contradictory then what is the way out? Double enquiry may create confusions.37
The Act may further be criticised on the following grounds:
1. A lot of scope for the Magistrate’s discretion in matters pertaining to monetary relief, monetary compensation, child custody, contradictory reports of enquiring authorities (as the complaint may simultaneously be filed under Section 498A of the IPC as well as the PWDVA 2005). Similarly there are maintenance provisions within the various personal laws (Hindu, Muslim and Christian) which may stand contrary to the provisions of monetary compensation and relief and even right to residence within the PWDVA 2005.
2. The Act is not ‘gender neutral’ since it is for ‘women’ only. There are about five petitions challenging it on the grounds of constitutional right to equality.
3. There are no safety valves in the Act to prevent its misuse. It may prove disastrous not only for an individual in case the complainant has ‘malafide’ intentions. The Act is civil in nature but criminal in procedure and offence under this Act is cognisable and non-bailable.
4. Violence faced by the ‘mother-in-law’ is completely missing. There is no mention of it. The Act completely ignores violence by the daughter in-law against the in-laws. The country has already seen the misuse of the Dowry Prohibition Act 1986. It was found that every four minutes in India, innocent persons including old mothers/pregnant sisters/children, are facing false and fabricated dowry cases and are sent behind bars without any evidence (Section 498A is non-bailable).38
5. There is no mechanism to make it mandatory by the States to enforce the law in its totality; consequently in most of the States implemen-tation is half-hearted. One can find extreme disparities in the appointment of POs: providing inadequate budgetary support, maintaining poor record thus making the collection of data difficult; for example, while Maharashtra has appointed approximately 3687 POs, Assam only 27 and Gujarat just 25. The Act needs a Centrally sponsored scheme for effective implementation.
6. Too many laws on one issue create lots of confusion in the large number of already illiterate women who are without any/adequate knowledge of law. It creates confusion for the decision-making authorities also, notably the judiciary. Consequently there is wider scope for judicial discretion—something that appeals to their wisdom than becomes the legal remedy or law. At the same time it also creates scope for further exploitation of the “victim” by lawyers.39
7. The biggest beneficiaries or main users are still ‘married women’ for whom there are already enough laws. This fact thus puts a question-mark on its wider utility and application.
8. Moreover this Act provides only temporary reliefs and on urgent basis; permanent solutions are still to be found in personal laws. The failure of personal law due to its civil nature is an open fact; for example, most of the Hindu women still prefer to seek maintenance under Section 125, CrPC rather than under the Hindu Maintenance Act 1956.40
9. At the same time creation of a new law despite the existing legal provisions on the issue of violence against women, including domestic violence, reflects the gravity of the problem. Taking into account this fact the state should have given emphasis to the overall (socio-economic and political) empowerment of women to strengthen their position in society and family. However, one may see the apathy of the government towards the issue of empowerment of women. Law, though very important, is not the complete solution for such problems.
10. Any legislation should have a simultaneous legal literacy and sensitisation plan. It is an open fact that the victims of domestic violence themselves do not accept it as something wrong. There is total ignorance regarding rights as well as the law on the part of women. Therefore, laws remain paper tigers rather than being the instruments of social change.
Conclusion
To conclude, it may be said that the strategy of the Indian state towards a problem, and particularly that of women, is to rely largely on law and often only on law. The responsibility of the state ends with the drafting of the required laws, whereas the problems relating to women, particularly domestic violence, are socio-economic and cultural problems which demand a multi-faceted approach. Multiplication of laws relating to women has led to the problem of overlapping, legal dilemmas and legal confusion. Moreover, to overcome the problem of socio-economic and cultural hurdles, it is desirable to adopt a human rights approach to women’s problems. It is only through the human rights perspective that one can help safeguard human dignity and create a “violence-free home” leading to a “violence-free society”
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