Gourav Deep Singh Sarngal
Gourav Deep Singh Sarngal Advocate J&K High Court, Jammu


JK News Today   

Article 15 of our Indian constitution provides: “The state shall not discriminate against any citizen on ground only of religion, race, caste, sex, place of birth or any of them.” Clause (2) of Article 15 deals with cases of discrimination as regards to the use or access to public place mentioned therein but at the same time clause (3) of Article 15 provides: “Nothing in this article shall prevent the state from making any special provision for women and children.” This clause is an exception to the rule against discrimination embodied in clause (1) as well as clause (2) signifying thereby the special provisions can be made in favour of women and not against them.

Keeping in mind the mandate of Article 15 of our Indian Constitution the State has time-to-time legislated laws favouring women. The Protection of Women from Domestic Violence Act, 2005 is one of such law meant to aid persons who have suffered domestic violence and have been thrown out of their matrimonial houses as it provides them the right to a shared household. The Act as a whole provides for more effective protection of the rights of women guaranteed under the constitution who are victims of violence of any kind occurring within the family and for matters connected therewith or incidental there to.

These new laws aimed at the better protection of women but complaints that the legislation is being abused began to rise and unfortunately, one comes across the growing instances of cases where the provisions of the Act have not been so much invoked for the betterment of those whom it seeks to protect, than by those who want to settle personal scores by giving to a ordinary family issue the colour of   an alleged atrocity.

Various courts are also coming down heavily on the misuse of the Domestic Violence Act, which was enacted a decade ago. The Apex Court of India being aware of the prevailing situations in catena of cases has passed a landmark judgements time-to-time thereby scrutinizing the law relating to the Domestic Violence Act and has interpreted various sections of the Act according to the need of the hour.  One of such landmark judgement was by the Supreme Court of India in S.R. Batra case wherein it was held by it that the definition of the “Shared Household” in section 2(s) is not very happily worded and appears to be the result of clumsy drafting and it is for the first time the Supreme Court enunciated that wife is not entitled to live in the house owned by the mother of husband, wife is only entitled to claim a right to residence to a shared household, and a shared household would only mean the house belonging to or taken on rent by the husband thereby giving relief to the parents of the husband who are now-a-days unnecessarily dragged by wife just to satisfy her personal vengeance.

The Madras High Court Bench has observed that the Protection of Women from Domestic Violence Act suffers from inherent flaws which tempt women to misuse their provisions and men to dread being prosecuted under the law without any rhyme or reason.

The Punjab and Haryana High Court has gone one step further and has held that the law relation to the Protection of Women from Domestic Violence is being used to terrorise the husbands, their families and distant relatives and this phenomenon has now acquired the name of the Legal Terrorism.

The various Courts from time-to-time reiterated that in order to bring a case under Domestic Violence Act the allegations levelled by the wife against her husband and relatives must not be vague and general in nature but should be specific disclosing the date and time and manner in which she has been subjected to domestic violence.

Trial Courts and police should closely scrutinize the allegations before taking cognizance against the accused persons. So the time has come that the law relating to the Domestic Violence Act should be amended and few sections must be incorporated which entails penalty for the unscrupulous wives who falsely implicate their husbands, in-laws and distant relatives in frivolous litigation.

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