CONSTITUTIONAL PERSPECTIVE OF PROTECTION OF WOMEN FROM DOMESTIC VIOLENCE ACT, 2005


The Protection of Women from Domestic Violence Act was enacted under Article 253 of the Constitution. This provision confers on the Parliament the ability to form laws in pursuance of international treaties, conventions, etc. The impugned Act was passed in furtherance of the recommendations of the United Nations Committee on the Convention on the Elimination of all Forms of Discrimination Against Women, commonly referred to as CEDAW.

The Statement of Objects and Reasons which was released along with the act states that the act was passed in furtherance of Articles 14, 15 and 21 of the Indian Constitution and thereby to provide equal opportunity to women and protect them from the evils of the society. Foll1owing are some of the judicial precedents which laid down the principle of equal rights and protection of women.

Francis Coralie Mullin v. Union Territory Delhi, Administrator [1] The Supreme Court herein observed: “any act which damages or injures or interferes with the employment of any limb or faculty of someone, either permanently or maybe temporarily, would be within the inhibition of Article 21.”

This right is incorporated within the Act through the definition of physical abuse, which is a form of domestic violence under Sec 3 of the Act. Physical abuse is claimed to contains acts or conduct of such nature that cause bodily pain, harm, or danger to life, limb or health, or impair the health or development of the aggrieved person. The Act also includes similar acts of physical violence and certain acts of physical violence as envisaged within the Indian Penal code within the definition of Cruelty against women or abuses against women. By enlisting and protecting women from such sort of violence, the Act has empowered their right to life and living that life with dignity.

Ahmedabad Municipal Corporation v. Nawab Khan Gulab Khan[2]

The Supreme Court observed that “right to life includes the right to live with human dignity. The right to dignity further includes the right not to be subjected to sexual harassment.”

These two principles of the right to life have been enlisted by the impugned act under the definition of Domestic Violence by incorporation sexual and emotional abuse as forms of offences, respectively. A laudable aspect of the legislation is that the very ideology of emotional abuse as a form of abuse and the sexual harassment and torture a wife faces at the hands of her husband has been incorporated like never before. It is pertinent to note that sexual harassment by the husband was never an offence under the Indian Penal Code and a woman had no remedy against the same. But now, they have been recognised as offences and brought under the purview of domestic violence.

Chameli Singh v. State of U.P[3]

The Supreme Court herein observed that “right to life also includes within its ambit the right to shelter

Section 6 of the impugned act places the responsibility on the Protection Officer to provide the aggrieved party accommodation in circumstances where the party lacks a place for accommodation, on the request of the part or suo-moto on recognition of a problem. Further, under S.17, the right of the aggrieved party to continue residing in the shared household is provided. Thus, even though the case is underway, women do not lose the right to have a proper shelter for themself.

Royappa v. State of Tamil Nadu[4]

The Supreme Court addressing the issue of laws passed under Article 14 states that laws should be based on intelligible differentia and there is a prohibition of class legislation and any law that's arbitrary is taken into account violative of Article 14 additionally.

This provision is important in putting a stop to arbitrariness within the exercise of State power and also in ensuring that no citizen is subjected to any discrimination. But it preserves the State’s power to legislate for a particular category of individuals.

Article 15 disallows discrimination on the grounds of faith, caste, sex, race, etc., but permits the State to form special provisions for sure classes of persons, including women and kids. The provisions of the impugned act promote the rights of women guaranteed under Articles 14,15 and 21. Violent abuse is one amongst the several factors that hinder women in their progress, and this Act seeks to guard them against this evil. It indeed affects a classification between women and men, protecting only women from the evil of domestic abuse, but this classification is founded on an intelligible differentia i.e. gender, and also contains a rational nexus with object and purpose of the Act. Further, the Act is way from arbitrary and it's a well-thought and necessary policy to curtail repeated abuses against women and eventually vanquish it. At this juncture, it is to be observed that it's generally women who are the victims of domestic abuse and other forms of violence, and not men.

[1] 1981 AIR 746: 1981 SCR (2) 516: 1981 SCC (1) 608 [2] A.I.R. 1997 S.C. 152 [3]1996 2 SCC 549 [4] 1974 AIR 555, 1974 SCR (2) 348

22 views0 comments
 

©2020 by JURIS COGNITIONIS. Proudly created with Wix.com

©ALL RIGHTS RESERVED