Currently, in India, the only specific statute that deals with domestic violence, with a special emphasis on domestic violence on women is the Protection of Women from Domestic Violence Act, 2005. It is a secular law and aggrieved persons irrespective of their personal laws, religious inclination can seek relief under this statute.
Section 3 of the Protection of Women from Domestic Violence Act, 2005 (hereinafter referred to as the PWDV Act) enumerates as to what may constitute domestic violence. It can be summarized to state that domestic violence includes physical, sexual, verbal, emotional or economic abuse, threat, and injury and also when the same is with the intent to meet any unlawful demand for dowry or any other property or valuable security. In such a case, the aggrieved person as defined under Section 2(a) of the PWDV Act may file an application to the Magistrate under Section 12 of the PWDV Act, 2005.
When we deal with domestic violence cases, the most important question to be considered is as to whom all can be considered as the “aggrieved persons” and the “respondent”. In light of the former, the provision defining aggrieved person in the statute states that an aggrieved person means any woman who is, or has been, in a domestic relationship with the respondent and who alleges to have been subjected to any act of domestic violence by the respondent. This implies that only a woman is competent to pursue a domestic violence case, provided that she is in a domestic relationship with the respondent. In such a case it becomes essential to determine what may constitute a domestic relationship. The same is given under Section 2(f) of the statute and recently in 2010, the Supreme Court in the case of D.Velusamy vs. D.Patchaiammal, (2010) 10 SCC 469 determined the interpretation of the term “a relationship in the nature of marriage” and went on to state that:
“It seems to us that in the aforesaid Act of 2005 Parliament has taken notice of a new social phenomenon which has emerged in our country known as live-in relationship. This new relationship is still rare in our country, and is sometimes found in big urban cities in India, but it is very common in North America and Europe.”
In furtherance to this, the Court also observed that:
“In our opinion a `relationship in the nature of marriage’ is akin to a common law marriage. Common law marriages require that although not being formally married :-
(a) The couple must hold themselves out to society as being akin to spouses.
(b) They must be of legal age to marry.
(c) They must be otherwise qualified to enter into a legal marriage, including being unmarried.
(d) They must have voluntarily cohabited and held themselves out to the world as being akin to spouses for a significant period of time.
In our opinion a `relationship in the nature of marriage’ under the 2005 Act must also fulfill the above requirements, and in addition the parties must have lived together in a `shared household’ as defined in Section 2(s) of the Act. Merely spending weekends together or a one night stand would not make it a `domestic relationship’.”
However, while the Court partially brought certain live-in relationships into the ambit of the PWDV Act, the Court further went on to state:
“34. In our opinion not all live in relationships will amount to a relationship in the nature of marriage to get the benefit of the Act of 2005. To get such benefit the conditions mentioned by us above must be satisfied, and this has to be proved by evidence. If a man has a `keep’ whom he maintains financially and uses mainly for sexual purpose and/or as a servant it would not, in our opinion, be a relationship in the nature of marriage’
35. No doubt the view we are taking would exclude many women who have had a live in relationship from the benefit of the 2005 Act, but then it is not for this Court to legislate or amend the law. Parliament has used the expression `relationship in the nature of marriage’ and not `live in relationship’. The Court in the grab of interpretation cannot change the language of the statute.”
Yet another important element or to say the ingredient in the case of a domestic violence case is to consider as to whom all can fall within the ambit of “respondent”. The Supreme Court in the case of Sandhya Manoj Wankhade vs Manoj Bhimrao Wankhade & Ors., (2011) 3 SCC 650, interpreted the meaning of the term “respondent”. The Court in this case observed that:
“It would be apparent that although Section 2(q) defines a respondent to mean any adult male person, who is or has been in a domestic relationship with the aggrieved person, the proviso widens the scope of the said definition by including a relative of the husband or male partner within the scope of a complaint, which may be filed by an aggrieved wife or a female living in a relationship in the nature of a marriage.
13. It is true that the expression “female” has not been used in the proviso to Section 2(q) also, but, on the other hand, if the Legislature intended to exclude females from the ambit of the complaint, which can be filed by an aggrieved wife, females would have been specifically excluded, instead of it being provided in the proviso that a complaint could also be filed against a relative of the husband or the male partner. No restrictive meaning has been given to the expression “relative”, nor has the said expression been specifically defined in the Domestic Violence Act, 2005, to make it specific to males only.
14. In such circumstances, it is clear that the legislature never intended to exclude female relatives of the husband or male partner from the ambit of a complaint that can be made under the provisions of the Domestic Violence Act, 2005.”
Therefore, it has been made clear that a domestic violence complaint can also be filed against a female member of a family that the aggrieved person has shared a domestic relationship with while living in a shared household.
This brings us to the third most important aspect of ingredients in relation to domestic violence i.e. shared household. In the case the Supreme Court in a recent judgment of Satish Chander Ahuja vs. Sneha Ahuja, held that a woman can claim right to residence in the houses owned by relatives as well. This means that, she can seek residence order with respect to property which belongs to in-laws, if she and her husband lived there with some permanency after marriage. The judgment reads:
“The definition of shared household given in Section 2(s) cannot be read to mean that shared household can only be that household which is household of the joint family of which husband is a member or in which husband of the aggrieved person has a share.”
These statutes have provided an effective protection of the rights of women guaranteed under the Constitution who are victims of violence of any kind occurring within the family, however, considering the aspect of gender neutrality in today’s world and considering that men are also victims of domestic violence, there needs to be an efficacious remedy for the men of our country as well.
