New Delhi: When a self-proclaimed “ideal husband” filed a domestic violence case against his “dominating” spouse in October, a lower court in Delhi heard him out and issued a summons to the wife. However, the wife has now approached the Delhi High Court with the plea that India’s domestic violence law applies only to women.
The case, born out of an acrimonious marriage where both parties have alleged abuse, has thrown up a thorny question — can a case be registered by a man against a woman under India’s domestic violence law? According to the lower court it can, but the wife’s lawyer Ashima Mandla has argued that it cannot in a petition to the high court.
The law’s full nomenclature is Protection of Women from Domestic Violence Act 2005, but for the first time in Delhi, the mahila (women’s) court in Karkardooma East passed an order on 5 November, issuing a summons against the wife on the basis of a husband’s complaint, which he had filed under section 12 of the law.
This section allows an “aggrieved person” to file an application before the magistrate demanding relief under the Act.
The wife has now approached the Delhi high court challenging the summons and the domestic violence case against her. The petition, filed Wednesday through advocate Ashima Mandla, demands the quashing of the proceedings against her.
The woman asserts that “the very title of the Act is self-explanatory that the protection and recourse under the Act are limited to a woman being an aggrieved person”.
What does the law say?
Section 2(a) of the 2005 Act defines an “aggrieved person” as “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”.
The Supreme Court, in 2016, had expanded the scope of Section 2(q) of the Act. This provision defines the “respondent”, and earlier said, “respondent means any adult male person who is, or has been, in a domestic relationship with the aggrieved person and against whom the aggrieved person has sought any relief under this Act”.
However, the Supreme Court had struck down the words “adult male”, widening the scope of the law. The judgment paved the way for the prosecution of even women under the law.
However, this judgment only altered the definition of a respondent or an accused under the law and not the definition of “aggrieved woman”.
However, the Karnataka high court, on 18 April 2017, made headlines after it allowed a Bengaluru man to file a domestic violence complaint against his wife. Justice Anand Byrareddy relied on the Supreme Court’s 2016 judgment, to say that men can also invoke provisions of the domestic violence law. However, days later, on his last working day as a judge, Justice Byrareddy withdrew his own order, calling it “patently erroneous”.
The Supreme Court, in July 2018, set aside both the orders passed by the Karnataka high court and asked the petitioner to pursue his pending appeal in the case before the sessions court instead.
From marriage to courtroom
The couple in the Delhi case tied the knot in February 2008 and have two children, aged 13 and five. The woman has, however, alleged that she was subjected to “verbal, physical, emotional and financial abuse” by the husband and his family members.
The husband filed a divorce petition on 24 August this year. On 6 October, the husband also filed a complaint under the domestic violence law, demanding relief under Sections 18 (protection orders), 20 (monetary reliefs), 21 (custody orders) and 22 (compensation orders) of the Act. The wife also filed a similar complaint on 19 October, against the husband.
In his complaint, the husband describes the marriage as the “painful story of an ideal husband”. According to him, his wife “was of very dominating nature” and was allegedly engaged in extra-marital affairs with “approx 52 persons”.
Two of these alleged lovers have even been named as respondents in the domestic violence complaint by the husband, who is seeking monetary compensation of Rs 36 lakh for being “exploited heavily” during his marriage.
The wife’s complaint, filed against her husband, brother-in-law, and sister-in-law, lists several detailed instances of physical, verbal, and financial abuse. It says that the husband “maliciously instituted” the domestic violence complaint against the woman and her family in order to “harass” them. She has demanded compensation of Rs 2 crore from her husband.
On both their complaints, the lower court has demanded a domestic incident report, which is a document containing details about the victim, perpetrator, and the alleged incidents of violence. This report is made by either a protection officer or a service provider under the law, who then sends the report to the court.
‘Law only for women’
The woman’s petition in the Delhi High Court points out that the protection under the law “is intentionally and solemnly limited to only ‘woman’ under the Act”. It also asserts that Section 498A (husband subjecting wife to cruelty) of the Indian Penal Code (IPC) also considers only women as aggrieved, while the accused can be male or female.
She asserts that the metropolitan magistrate has instituted proceedings against the wife “in an overzealous exercise of judicial overreach, without application of mind, by a non-speaking order”.
Speaking to ThePrint, the woman’s lawyer Mandla said that the the 2005 domestic violence law was meant only for women,
She explained that it is a “special legislation enacted by the Parliament to protect women from violence of any kind occurring within the family”.
She said that despite the fact that Section 498A of the IPC was already available to women, the 2005 law was enacted “to give women effective and expeditious remedies in the form of protection orders, residence orders, monetary orders etc”.
While the constitutionality of this special law was challenged before various high courts across the country on the ground that it is discriminatory and does not provide rights to men, Mandla said that these contentions did not hold water.
“All the high courts have in unanimity rejected the said challenge and upheld that this is a special law enacted by Parliament to cater to the abjectly dismal fate of women, which requires protective and ameliorate measures,” she said. “The legislative intent, reinforced with a plethora of decisions of the constitutional court, makes it manifestly clear that this law is only for women.”
(Edited by Theres Sudeep)