Justice Fateh Deep Singh ji has begun his judgment with this,
The surmounting rise in the number of petitions under Section 482 Cr.P.C. challenging the processes being initiated by various Courts under the jurisdiction of this High Court for the matters dealing with the Protection of Women from Domestic Violence Act, 2005 (in short, ‘the Act’) and the subdued clamour that the provisions are discriminatory qua males and lopsided acknowledging of the rights of women vis-à-vis their men folk has led to the amalgamation and clubbing of all these petitions with an effort to clear the air and haze which has engulfed the interpretation of provisions of this Act since its inception and otherwise brings about more uncertainty and confusion.
In India though there existed laws to protect women from perpetrators of violence, in fact even the legal experts felt their inadequacy in dealing with the ever bourgeoning problem of domestic violence and which phenomenon was not being adequately dealt with. One cannot look the other way that even with the coming into force of the Act it has failed to cater to the needs of abuse of male child in the house though subsequently with the enlargement of definition of ‘Rape’ it has been addressed to some extent but not completely.
This legislation has remained in oblivion and indifferent to the Domestic Violence instances concerning men in domestic relationship and thus falls short of constitutional obligation as enshrined under Articles 14 and 15 of the Constitution and violates Legal Egalitarianism as well as Article 7 of Universal Declaration of Human Rights.
Being one in such a sphere, the Act has tried to concretely deal with the problems of domestic violence from feminist perspective of law for expeditious redressal of grievance irrespective of the economic, religious and ethnic affiliations of the women.
“Next to God we are indebted to women, first for life itself, and then for making it worth living” – Bovee C.N.
Epigrammatic writer of New York who lived in the 19th century and happens to be one of the members of Literary Circle popularly called “Saturday Evening Club of Boston” has penned these famous indelible lines as a tribute to the female form of homosapiens.
Our Constitution while introducing Gandhian Socialism, Secularism did keep in mind the concept of “Equality” and which became the basic feature of the Constitution and too was acknowledged by the Supreme Court of India in ‘Indra Sawhney vs. Union of India’ (2000) 1 SCC 168. In league with thoughts of great thinkers, the Constituent Assembly introduced Articles 21, 14 and 15, the latter as a special tribute to women and eliminating gender based discrimination. In spite of the same, a debate over the Equality is getting complicated. Since women are often misnomered as ‘Weaker Sex’ and therefore in under-developed countries including developing nations like ours, there is still huge gap in Gender Equality, more dominant in Rural than Urban scenario. The approaches in gender difference broadly fall in protectionist, sameness and compensatory outlook. The Universal Declaration of Human Rights had voiced its concern against discrimination and holding out that all human beings are born free with equal rights and dignity and thus, are all entitled to equal treatment. It was stressed to ensure equal rights to men and women. That is how Declaration on the Elimination of Discrimination against Women came into being and it is with this end in view United Nations resolved the member States to adopt appropriate legislation.
Now the main point starts,
The Protection of Women from Domestic Violence Act, 2005 is one of the most aggressive approach while enacting such a progressive
Act which is enacted in favour of women’s rights. Though a challenge was made it being ultra-vires of the Constitution but the Delhi High
Court in 2008 in ‘Aruna Parmod Shah vs. Union of India’ 2008 (3) RCR(Criminal) 191 brushed aside the stand that it was discriminatory to men as protection was afforded only to women. However, it cannot be ignored that less out of social need and more out of political compulsions, multiple Laws are being evolved which are lopsided heavily weighing in favour of women offering them multiple remedies for the same very grievance and for which the present Act is one. In spite of Article 15 of Part IV of ‘Convention on the Elimination of All forms of Discrimination against Women’ which came in force with effect from 3rd September, 1981 had resolved that all State parties shall accord to women equality with men before the law but it is not so in realm.
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