Observing that the Domestic Violence Act, 2005 has remained in “oblivion and indifferent” to violence faced by men, the Punjab and Haryana High Court, in a verdict, has said that multiple laws “which are lopsided (and) heavily weighing in favour of women” are being evolved due to political compulsions and less out of a social need.
Justice Fateh Deep Singh, in the verdict on the issue concerning the existing law regarding domestic violence, said the magistrates need to be sensitized for adoption of practice of counselling, requisitioning marriage counselors and welfare experts and ensure that entire proceedings are held in camera in accordance with the law. The order has been directed to be circulated among all the subordinate courts of Punjab, Haryana and Chandigarh to bring about “uniformity in approach and outlook” towards the Domestic Violence Act.
“The courts embark upon a journey of dealing with the respondent as a ‘criminal’, which is in fact not in the true spirit of the Act and even goes to the extent of issuing arrest warrants, thus compelling a party to seek shelter of this court…which needs to be discouraged,” Justice Singh said in the order.
The judgment came on November 5 in at least 14 petitions challenging the proceedings initiated against the petitioners under the Act. The order was made public this week.
The court has directed the order copies to be sent to the home departments of Punjab, Haryana and Union Territory of Chandigarh “to prod them into taking necessary and immediate steps in facilitating fulfillment of state’s obligation in achieving the objects for which the Act has been envisaged”.
Observing that the 2005 Act falls short of constitutional obligation as enshrined under Articles 14 and 15 and that it has tried to concretely deal with the problems of domestic violence “from feminist perspective of law”, Justice Singh said that in spite of the concept of equality in the constitution, there is a still huge gap in gender equality as women are often “misnomered as ‘weaker sex’”. The court further said that the Act was one of the “most aggressive” even if it was “progressive” and enacted in favour of women’s rights.
“There is general failure in the application of human rights throughout the world and there is no uniform application on account of varying cultures and traditions of a society, which is still patriarchal, medieval in its outlook towards the women and hence, in spite of international resolve…relentless efforts have failed to achieve the ultimate, so our country is no exception,” reads the judgment further.
The court also said the proceedings of the Act are predominately civil in nature and apparently the application of criminal proceeding to it was created to give it more teeth and deter the perpetrators of violence. The Act does not lay down at what stage a magistrate can pass interim orders by way of protection orders, residency orders, monetary reliefs, custody orders and compensation orders, the court said.
“The courts need to be slow in doing so at the preliminary stage before taking cognizance of the application, else the provisions of reconciliation/counselling might become a casualty,” Justice Singh noted, adding it is often seen that the respondents get “alarmed” at mere issuance of notice when its only a ministerial function and cannot be equated with summons.
On Protection Officers
The High Court also noted that there are only 21 Protection Officers in Haryana – none of them male – while in Chandigarh there are only five Protection Officers and all are male. In Punjab, there are 154 Protection Officers out of which 124 are women. “Majority of these are having additional charges and thus unable to carry on fully their obligations under the Act. Sadly, to observe, there is only one specifically notified shelter home under the Act which is in Chandigarh and both the other states are yet to open their account on that score solely for the purposes of the Act,” the court said, adding there is no information readily available to the public about the Act as well as the Protection Officers or Service Providers of an area to whom a distressed woman would approach. There is a lack of experts like psychologists, psychiatrists for the purpose including the marriage counselors, for which the fixed budget allocation need to be made, the court has noted.