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Domestic Violence Act: Battle Half-won

Domestic Violence Act: Battle Half-won
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The Delhi HC has ruled in favour of aggrieved women estranged from husbands by enlarging the scope of interim maintenance

By Venkatasubramanian

The Protection of Women from Domestic Violence Act, 2005, aims to protect the rights of women who are victims of violence of any kind occurring within the family. It is a rare example of the invocation of constitutional principles in the private domain of family and home. While its objective is to bring equality into the home, its success, in the words of senior advocate Indira Jaising, who played a key role in drafting the law, depends on the extent to which the required support services are put in place by the State, how the law is interpreted by the judiciary and how far women are able to invoke the law. According to the National Crime Records Bureau (NCRB), a total number of 426 cases in 2014, 461 cases in 2015 and 437 cases in 2016 were registered under the Act.

A key provision of the Act is Section 22. This empowers a magistrate, on an application made by the aggrieved person, to pass an order directing the respondent to pay compensation and damages for injuries, including mental torture and emotional distress, caused by acts of domestic violence committed by him.

Under Section 23(1), the magistrate may pass such an interim order as he deems just and proper. Under Section 23(2), if the magistrate is satisfied that an application filed by the aggrieved person prima facie discloses that the respondent is committing, has committed or is likely to commit an act of domestic violence, he may grant an ex-parte order.

In addition, under Section 20, the magistrate may direct the respondent to pay monetary relief to meet the expenses incurred and losses suffered by the aggrieved person and any child of hers as a result of the domestic violence. Such relief may include maintenance for the aggrieved person as well as her children. This can be in addition to an order of maintenance under Section 125 of the Code of Criminal Procedure or any other law. Under Section 20(3) of the Act, the magistrate shall have the power to order an appropriate lump sum payment or monthly payments of maintenance as the nature and circumstances of the case may require.

Recently, in Kanupriya Sharma vs State, the Delhi High Court expanded the scope of maintenance which can be granted under the Act. It laid down that relief of interim maintenance cannot be declined to the aggrieved person unless undisputed evidence is produced by the husband clearly establishing that the estranged wife is gainfully employed.

In this case, the trial court had held that the income of the husband was Rs 50,000 and apportioned it into three parts, awarding Rs 16,500 per month to the wife as maintenance. The appellate court reversed the maintenance awarded by the trial court on the ground that the wife was duly qualified and an educated person and there was no reason mentioned as to why she was unemployed.

As the wife was in a position to work and earn her livelihood, she could not be said to be a victim of vagrancy and being a self-created situation, she was disentitled to maintenance, the appellate court had held.

The trial court, on the contrary, held that at the stage of determining interim maintenance, the court has to form a prima facie view, and the disputed questions with regard to the wife’s employment require trial.

Agreeing with the trial court, Delhi High Court judge Justice Sanjeev Sachdeva found that the husband did not produce any material to show that the wife had secured any employment or was receiving any salary or income. Relying on the Supreme Court’s judgment in Bhuwan Mohan Singh vs Meena (2015), Justice Sachdeva said that the concept of sustenance does not necessarily mean to lead the life of an animal, feel like an “unperson” to be thrown away from grace and roam for her basic maintenance somewhere else.

In Bhuwan Mohan Singh vs Meena, the Supreme Court had held: “She is entitled in law to lead a life in the similar manner as she would have lived in the house of her husband…In a proceeding of this nature, the husband cannot take subterfuges to deprive her of the benefit of living with dignity. Regard being had to the solemn pledge at the time of marriage and also in consonance with the statutory law that governs the field, it is the obligation of the husband to see that the wife does not become a destitute, a beggar.”

In this case, then Chief Justice of India Dipak Misra, sitting with Justice V Gopala Gowda, deplored the fact that the case continued for nine years before the family court and that on certain occasions, family courts had been granting adjournments in a routine manner. As a consequence of this, the bench said, both parties suffer and the wife becomes the worse victim. “When such a situation occurs, the purpose of the law gets totally atrophied,” he observed.

The bench took note of the fact that most of the time, the husband had sought adjournments, and sometimes, the family court dealt with the matter in a totally lax manner. “The wife sustained herself as far as she could in that state for a period of nine years. The circumstances, in our considered opinion, required grant of maintenance from the date of application,” the bench concluded.

Justice Sachdeva, disagreeing with the appellate court in the present case, held that in case there is a dispute as to whether the wife is gainfully employed or not, the court cannot assume that because she is educated or was employed prior to her marriage, she would be gainfully employed. Justice Sachdeva also relied on another judgment of the Supreme Court in Shailja vs Khobbanna (2018) in which it had categorically held that whether the wife is capable of earning or whether she is actually earning are two different requirements. In this case, the High Court had reduced the maintenance awarded to the wife and the son by the family court from Rs 25,000 to Rs 12,000 on the ground that the appellant-wife was capable of earning.

The Supreme Court was dissatisfied with the High Court’s order considering that the income of the husband, a senior lecturer in a college, was more than Rs 80,000 a month.

It also took note of the fact that the husband was the owner of 26 acres of irrigated land. More important, the apex court disagreed with the High Court and held that merely because the wife is capable of earning is not sufficient reason to reduce the maintenance awarded by the family court.

Making a distinction between Section 125, CrPC, and the DV Act, Justice Sachdeva said the expression “unable to maintain herself”, which qualifies for the claim of maintenance by a wife under the former, is missing in the Act. He emphasised that under Section 20(2) of the DV Act, the monetary relief granted has to be adequate, fair and reasonable and consistent with the standard of living to which the aggrieved person is accustomed. The expression “unable to maintain herself” found in Section 125, CrPC, does not mean capable of earning, Justice Sachdeva interpreted.

Justice Sachdeva thus restored the trial court’s order awarding the maintenance of Rs 16,500 per month to the wife. He also directed the husband to pay it from the date of filing of the application by the wife seeking its grant, ie, with effect from May 3, 2017. He gave the husband four weeks’ time to clear the entire arrears of maintenance.

The rise in the number of cases under the DV Act heard by the judiciary doubtless indicates the rising confidence of women in the ability of the courts to render justice. It also underlines the growing intolerance for domestic violence among women.

Activists, however, have been concerned over the lack of sensitivity among judges to the Act’s potential to come to the rescue of aggrieved women. The Act supports the contention that emotional, sexual and economic violence within the home should be suitably compensated. Put in this context, Justice Sachdeva’s judgment is refreshing, and is likely to be hailed by activists for being sensitive to the objectives of the Act.

Reviewing the Act’s working in 2009, Jaising commented in an article that having a law on domestic violence puts in place a norm that violence against women is unacceptable, and such a norm is backed by State sanctions. But having a norm will not by itself end violence, she had cautioned. “It is also necessary to facilitate access to justice by the endowment of material resources,” she had explained.

By enlarging the scope of interim maintenance to be granted to an aggrieved wife, the Delhi High Court has sought to advance her access to justice, as envisaged by Jaising almost 10 years ago.

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