At the outset (well, already tired of using this for a start) P.W.D.V. Act – 2005 has been credited as a path defining act for aggrieved women. It was formulated to provide a sense of security in getting monetary compensation, a place to stay, compensation on damages, getting back her valuables, smooth custody of child and a steady income till an alternative source is achieved by her own-self. In addition also ensuring her physical safety and safety from any verbal abuses. All of these from a civil procedure code rather than a criminal procedure code which is already existing.
There must have been a huge brain storming (well, I assume so) to provide a better alternative to the aggrieved women from the already existing criminal codes in the form of Dowry Prohibition Act and the draconian 498a. From these the later has been termed as a ‘grossly misused law’ and coined as ‘Legal Terrorism’ within the judiciary circles by the judiciary system.
The idea of bringing a new act was to give benefit via a civil procedure to the aggrieved females with a humble motive to allow females to resettle with the matrimonial family with a legal protection and ensuring monetary benefits for her to be given by her husband.
To ensure this ,appropriate steps were put in place and various authority positions were formed. Also it was directed that when and if the matter goes to the court then it has to be completed within a stipulated period of 60 days. Yes, NO MORE THAN 60 days.
Over and above this , an aggrieved female can file this domestic violence case through various Mahila Takrar Kendra’s or a PO or a SO or even by a citizen who becomes aware of such a domestic incidence around him/her area. The work policy and rules are also clearly defined for these Service officers (SO) and Protection officer (PO).
In all ,many positive clauses were brought keeping the spirit of a civil procedure and to ensure that the matrimonial related matters are dealt with more sensitivity and females are benefitted too from it. Also the claimed act was created to make females comfortable to resettle in the matrimonial family with dignity.
So does it really harm females as claimed? Lets try to evaluate few major short comings in the PWDVA.
To safegaurd all class of females i.e poor, medium, higher , the act has been kept very generic. Further all aggrieved females can seek monetary compensation from her husband for any perceived domestic violence on her. Thus keeping the rationality of the aggrieved female to get a monetary compensation in domestic violence the education of the female and her capacity to generate income for self has not been considered at all. Over and above that numerous clauses are formed for her to stake monetary benefits
- So where is the harm for the females? : In the world of commercialization multiple members in a family set out to earn including females, whether the family is in urban or rural areas. Its an age old tradition. Agriculture sector is the best example of it. So it seems that while formulating this act the income generating capacity of a female was kept aside. It may have been done since the foremost aim of bringing this act might have been to provide only monetary benefit to the female rather than making her resettle in her matrimonial home. Thus the dignity of both the parties were compromised from the start itself. This very nature of the act shows that the indian females were looked from a single eye and were considered to always remain ‘abla gender’. It relied on the base idea that the female gender will never become a strong contributing factor to the GDP of the nation.
- No surprise that as per world bank report – 16 March 2018 , indian women had opted out from workforce by 20 million after 2005, between 2005-2012. Was this because of this act? This act was introduced in 2005 remember?
- Is it not then that this act failed to delve to know the real strength of indian women and makers of the act kept their eyes wide shut by ignoring the examples set by strong national female leaders like Indira Gandhi and many more with. It is actually a slap on feminism to be considered ever weak.
There are multiple areas which are covered under PWDV that can only be speculated or derived. eg. protection to the female is given from verbal abuse and taunts from husband and his relatives. Another, female should be handedover all her valuables/belongings by the husbands claimed by her
- The basic aim to give a civil act for a matrimonial dispute was to help females resettle early in their life and avoid the rigmorale of the courts. To help the females the act basically presumed that the gender is innocent and thus all her grievieances are considered as a gospel truth. It in literal sense considered weighing her words as 3:1 in her favour. Thus infact the main juriceprudence of ‘Innocent till proven guilty’ is automatically killed for the respondents, bringing further bitterness in the already cracking marriage bond.
- There are hardly any evidence/proof sought or any investigation done on the exaggerated claims of her valuables/belongings remaining at the husband’s home. There is hardly any verification done nor even simple cross question done on her claims. It is left to the respondent to prove himself innocent.
- It leads us to the core missing aspect i.e consideration of the human vices aspect. It was basically strongly assumed that all females will complain against her husband only when conditions will become unbearable for her and PWDVA would never be misused by indian ‘Sita’. In their zeal to bring the act they forgot that ‘Holika’ too existed who misused her powers and finally succumbed to her own boon. It seems the makers of this act completely ignored the human factor of ‘lying’. This human vice is NOT attached with any gender. Hence the misuse of this act was never considered which was a badly misplaced idea. Family bonds and values are increasingly sidelined and inturn we are seeing increasing number of rising divorce cases making more fatherless families. So we see another harm which the act does to the females only. It is nurturing the wily nature of the females leaving their inner ‘Sita’ in utter distraught.
When a female files a DV case 99.99% it is only a wife against her husband. If the act is named as ‘Protection of Women From Domestic Violence ACT’ then why the act is so explicit about a female being harmed only by husband and his relatives and a complaint has to mandatory have a connection to a male i.e. Husband of her OR a relative of husband?
- This leads us to the next contemplation i.e females harming the elderly females. When most of the time a wife files a complaint, she will be putting the allegations under some influence and will 100% exaggarate them because she wants to ensure that the outsiders who peruse her allegations believes in her story fully and generates sympathy towards her. So because of her own distrust in the judiciary the allegations are added , exaggarated and twisted to create a grim story. Most of them without any proof or lacking any substance or specifics.
- Now, the women NGOs claims that many husband related domestic violence go unreported because wives do not want to report them, but in the same breath they fail to note and state that there are wives who brutally beat their parent-in-laws , husbands, children without any repentance in their act. Where will such elderly female go to report such brutality and abuses thrown on them at such a late stage of their life. This act all together fails to address such violence done on a female by a female and still we term this act happily as a protection for women.
- Further, since there is no leash to her allegation list, she usually goes overboard in alleging numerous people from husband’s side and creates a long false list of people. Usually allegations are to be proven by the alleger but in the process of PWDVA the burden to prove innocence is heidously thrown on the respondents. Thus given this free hand to the female alleger let us see who are the 33% of the alleged people roped in to defend themselves [ironically this is the reservation percentage sought for women in all fields]. They are the females and it majority are the elderly females of the home where the complainant had stayed. Many times it also includes sister of husband or wife of brother-in-law. But while filing the complaint the process of the PWDV act ignores the fact that it has to protect the females. There are no checks in place. There is no sensitivity in the procedure of filing the complaint/petition. Hence females are given power without responsibility. This is extremely dangerous for the society where misuse of power goes unchecked.
So after all, this being a civil act in principal what benefit does it bring to the complainant in lying on any fact?!! This has been a crucial question haunting me during my traumatic times and there is no simple straight answer to it.
The first and the foremost advantage that a civil suit gives to the female is that unless she lies on oath OR unless lies while giving statements on affidavit the complainant will not be punished. Even if she has to be punished then such lies have to be brought to the court’s notice. Even if it brought the court’s notice there is no provision to punish her. So why on earth she should fear of any backlash of her wrong doings?!!
The second part is that till the case do not come to a conclusion the female can demand for an interim money from her husband. This makes the strongest reason to file a dummy case.
It is to be noted that there is no time limit adhered for filing a DV. It is inherently considered as a continuous harassment to the female even she opts to stay away from her husband.
Who checks what she did all the time while she was away from her husband and her family? Who verifies her education before filing the case? Who questions how she managed to maintain herself with the same status which she enjoyed at her matrimonial home while she stayed away? Who cares if the complainant has the capacity to earn livelihood? Who asks whether she is currently working anywhere?
A surprising answer to all of these questions is – NO ONE.
Why? Because inherently we are made to believe that our indian females are weak and no matter what it is assumed that they cannot lie OR earn for their livelihood even if they are highly educated. They are to be considered as only innocent ignorant non-qualifiable females. We have to believe that our indian females are dumb.
Due to such incoherent thoughts based on which this act is formed, it gives time to all the wily females to come up with various type of miserable strategies to suck the money out of her husband. To do so she uses the legal system as her tool, involving those people who are in the legal field and are fighting to give justice to the justice seekers. And when you are able to make use of the justice system itself to deliver a wrong judgment then who cares for justice?
So, after filing the DV case the female immediately puts application for “Interim Maintenance”. The interim orders are delivered based on ‘Prima facie’ i.e. The proof of the allegations are never sought. So the authenticity of the claim is never verified but they are only browsed through and a judgement are delivered. No pain is taken to know whether if the complainant even deserves such a sympathetic view of awarding her an interim maintenance. Thus she starts getting money from her husband even before any verdict is delivered . With such a favorable pre-order in her hand why would a female think of closing the case early? She will rather start thinking on how best she can delay the case. So a civil suit becomes an ugly boon of her wrong doings.
It will be important to note that she still is able to file other available criminal suits, majorly in same manner where she will never be questioned or counter questioned till the cases starts. Just imagine the trauma the distraught that the husband family goes through with such long list of false cases.
So a major question comes up is whether the PWDVA court process is carried with the spirit with which the act was made? Is this PWDVA-2005 really helping the real needy females to get the JUSTICE?
Does these questions really have a meaning with so many loop holes in the act?
But one thing is sure that many males are badly affected due to the short comings of this act. To avoid the burnout ,more and more husband’s are now seeking help from NGOs like Vaastav. Vaastav helps such males and provides them absolutely free guidance and support. Vaastav group also helps them come out of this mental shock and trauma and win their cases.
We now enter into another crucial stage of our matter i.e. then where does this end? how is it going to benefit a real justice seeker? Is it really helping the women to reconcile and settle any earlier than a criminal suit? Is it turning out to be only a sense of security of things demanded as compensation?
- It may be futile to question whether justice done in such civil procedures but infact we should raise important social questions that comes up due to act – Will the husband ever be ready to take such a female as his wife ever again after such a humiliation for an act which he or his other relatives may not have ever done? Will ever , the dignity of the man and his family be restored after such court room circles? It is my belief that the makers of the law had never consulted a group of psychologist while formulating such a law. It is a big disaster in itself and is working against the core spirit of this law.
- Further there are numerous additional avenues given to females in this act like
- Shelter homes can be provided to the needy females : Are these ever availed by females? If yes then can anyone provide the percentile of filers of the petition who availed it?
- Ensuring that the order given are followed : Are they ever in true sense sought or even is there ever a necessity arose to invoke it? How many may be reaching till judgement stage as most of them may be getting settled outside the court rooms.
- The people who had done so called domestic violence are ordered to stay away from the aggrieved female: But what if the aggrieved female herself meets and provokes the respondents, are proofs ever sought from her? What if she threatens the elder females from husband’s relatives?
- The female needs to get back her claimed belonging: Is there ever an investigation done? What if the female’s claim is found to be incorrect or false is she ever punished?
- The custody of the child is mostly handed over to this aggrieved: Interesting is it not, because this is the female who herself is demanding money for her own survival.
- Coming back, finally after gulping down husbands money for few years through interim order she may turn up for a settlement. Imagine the state of the husband by then. He would have realized that it is only him who has to circle around the courts and prove his and his relatives innocence. He has to loose his dear child’s custody to a person who cannot maintain herself and is dependent on his money. He helplessly sees his parents health deteriorating due to this purposefully inflicted trauma. He faces the risk of loosing job/ income and health. HE MAY EVEN THINK OF SUICIDE. He would think of being arm twisted to shell out money with no choice.
So if a settlement is done then the female separates herself out of the relationship. She is then unsettled , filling her coffers temporarily with husband’s money, having onus of child/children. Was this then the justice for which the case was done? YES? It should then be simple to infer that this PWDVA suit is largely done by those females who never wants to settle in the same matrimonial family. So then is it not a delusion that this act brings the aggrieved female a sense of security on various things and aspects of life?
Below are few facts and figures on how females are harmed more through various such available gender biased laws
That is awful lot of number of female arrests.
This should raise next level of question – Is there any way to stop this PWDVA menace before the family culture is devastated with this onslaught of fake , frivolous cases? PWDVA only seem to degrade society’s productivity slowing it down and along with it the nation’s progress. It may even systematically degrade empathy among the society. The consequences are far reaching for our beloved nation.
Let us try to see through some ways and means of improving the act if not disbanding it in totality as a redundant act :
- Keeping the spirit of the law for quick judgments i.e. Completing it within 60 days , the 1stthing to be done is
- There has to be a scrutiny of allegations and a DIR should be made compulsary. The allegations noted should be considered as statement/s on OATH and not a normal verbose
- The Protection Officer / Service Officer should be mandated to take statements from both parties and incase a party is in other district then for that party the PO/SO of that district should make the report and statement of that party. The report and statement should then be forwarded the original PO/SO
- Female should disclose her education certificates and earning history [before as well as during the marriage] without any prejudice and it should be mandated. It should be handed over to PO/SO itself so that there is no delay in the process.
- Female should produce all her domestic violence evidence before the PO/SO itself so that the concerned officer can decide the seriousness and gravity of the situation
- For PWDVA civil procedure there has to be no process of interim maintenance as the main objective is to have the female settle early in her life and deliver early justice via a civil process. Since the female would have already submitted all her grieviances and evidences in the DIR then directly her cross examination should be started. Then let the respondent give the reply and evidences within a stipulated time. This will bring the true spirit for which the act was brought. It will thus eliminate majority of false cases and reduce the burden from the courts
- Also after the maintenance order is given if the order is unfulfilled then let the aggrieved bring it to the notice to the same civil court rather than approaching different courts. It will bring in the much needed power to the civil suit of ensuring the adherence of orders
- It should also be taken care that if the petitioner is demanding maintenance for her day to day needs and upkeep and to maintain herself with same status of her husband and if such couple has an issue from the wedlock then the custody of the child should automatically be considered to be given to the husband since it would be injustice to the child to have a benefactor who is incompetent to sustain,earn and maintain self.
- It should not be mandated to hold only males responsible in domestic relationship. Elderly females are at equal risk of being harmed by younger females in a domestic relationship where male members would not have played any role. Clause should not mandate to have male be the main responsible person for act of other. Each citizen has to behave responsibiliy in today’s society
Judicial acts should be such that it takes care of both parties. Matrimonial related acts has additional responsibility to bring sensitivity into the system. Till such changes are made in PWDVA we can only hope for a justice to any gender and justice will be far fetched for the justice seeker.
May the needy get the justice. May the jurisprudence of “Innocent till proven guilty” prevail.
“Satyamev Jayate” .
– Rajeev S Shah
PS : Humble thanks to the Vaastav team for being the life support during my trying times.