Importance of –The Protection of Women from Domestic Violence Act, 2005

A 2nd year student of W.B.N.U.J.S, Kolkata

 Reported Crimes Against Women”[1] – Year 1999-2000: 1,55,553[2]; Year 2005: 1,41,373[3]; Year 2010: 2,13,585[4]; Year 2013: 2,95,930.[5]On perusing the above data it can be seen that, crimes which are committed within the four walls of a woman’s house are categorised   under merely two heads, namely – Homicide for Dowry/Dowry Deaths or their attempts (Section 302/304-B IPC) and Torture, both mental and physical (Section 498-A IPC).  Even though the number of ‘reported crimes’ against women are increasing at an alarming rate and considering the fact that in our patriarchal society more crimes are being committed than are  reported,social activists, feminists and several non-governmental organisations have  persistently  demanded  bringing amendments to the present criminal laws and if needed, also to enact  specialised legislations.

Before the introduction of ‘The Protection of Women from Domestic Violence Bill, 2000’, several other amendments and new laws were introduced such as the Dowry Prohibition Act, 1961 and the Criminal Laws Amendment Act, 1983 – which specifically worked towards  improving the laws that govern domestic violence against women. To some extent they did a good job; for example, by inserting Section 498A of IPC, violence in the form of ‘torture’ was introduced and it provided stern punishments to offenders causing dowry death, suicides or tortures inflicted on women in pursuit of dowry demands.

But does restricting the definition of ‘torture’ to merely mental and physical suffice in dealing with several other harms such as economic and sexual? What about the woman who is not the wife of the man she is living with? Violence inflicted towards her cannot be   for the purpose of obtaining of dowry and hence, neither the Indian Penal Code, 1860 nor any specialised laws can come to the rescue of such women. ‘The Protection of Women from Domestic Violence Act, 2005’ (hereinafter written as DV Act) was drafted keeping in mind all these issues. It widens the scope of ‘cruelty’ – in the name of domestic violence. It has categorised abuses as physical/sexual/verbal/ emotional and economic.[6]It has addressed a woman in general – she can be someone’s daughter, wife, mother and even a live-in partner. The DV Act has taken care of the hindrances and social apathies that a woman faces after reporting a criminal complaint and how these problems discourage other women to raise their voices against such crimes. The DV Act introduced provisions such as alternate residence for ensuring that the victim is not  thrown out of her house by the alleged offenders[7], protection of victim and her children by appointing ‘Protection Officers’[8], monetary reliefs such as loss of earnings, medical expenses[9], custody of children till the final court hearing[10] etc.These provisions have become a great boon for all those women who had earlier found it impossible to get out the vicious circle of the society and file a criminal complaint against their own relatives and live-in partners. The DV Act has also given a fair chance to all those voluntary organisations which have always worked selflessly and intervened to help these women in their misery. These organisations are empowered to act as intermediaries[11] between the alleged offenders and the victims in domestic violence matters.

But since perfection is hard to be achieved, the DV Act has led to debates on topics, such as the non-availability of provisions where the relatives of the man (such as his mother, father, sister etc. who are also living with the couple) can come to court complaining domestic violence inflicted against them by a woman residing with them (that can be their daughter, daughter-in-law, live-in partner of their son/brother etc.). Also, the National Crime Records Bureau (NCRB) data, post-2005 and till date, do not indicate that crimes against women in the name of domestic violence have reduced to a satisfying number. But it is equally unfair to blame an Act if one finds several lacunae due to the lack of budgetary provisions[12]to successfully implement the Act.

[1] “Although Women may be victims of any of the general crimes such as ‘Murder’, ‘Robbery’, ‘Cheating’, etc., only the crimes which are directed specifically against Women are characterised as ‘Crimes Against Women’.”http://ncrb.nic.in/ciiprevious/Data/CD-CII2005/cii-2005/CHAP5.pdf [Last seen on July 5, 2014].

[2]http://ncrb.nic.in/ciiprevious/Data/CD-CII2005/cii-2005/CHAP5.pdf [Last seen on July 5, 2014].

[3]http://ncrb.nic.in/ [Last seen on July 5, 2014].

[4]Id.

[5] Id.

[6]The Protection of Women from Domestic Violence Act, 2005 § 3.

[7]Id., § 6, § 17, § 18, § 19

[8]Id., § 2(n), § 8 & § 9.

[9]Id., § 2(k) and § 20.

[10]Id., § 21.

[11]Id., § 10.

[12]BhumikaJhamb, The Missing Link in the Domestic Violence Act, EPW, August 13, 2011, 33. The writer here has provided extensive insight regarding lack of central as well as state government funding so as to fulfil requirements regarding successful implementation of DV Act. Fore.g. – Funding’s to construct shelter homes, allowances to be provided to Protection Officers etc.

Mu’tah Marriage – A Marriage for sale?

Aakanksha Chauhan is a 2nd year student at Jindal Global Law School, Sonepat

A young Christian woman, who believed in the sanctity of marriage, always felt that one should indulge in sexual relations with a man only with the permission of God. At the young age of 19 she was a promising student in college. One day she chanced upon a young man who needed help in calculus. They slowly fell in love but her faith in God restricting her from indulging in love. One day he sat her down and told her that in his religion (He was a Muslim) courting was not allowed. He suggested that they both must get into a Mu’tah marriage.[i]

The word Mu'tah if translated would mean “Enjoyment of use” and in terms of legal context would translate into “marriage for pleasure.”[ii]. Prophet Mohammed permitted this marriage for a while until it was declared to be unlawful by all schools of Muslim law except the IntnaAshari Shia School.[iii]The Shia schools of law only practice Mu’tah marriage as of today. [iv]Hence in a Mu'tah marriage a man pays a woman money in return for sexual relations with her for however long it is agreed upon in the contract (the time period may be as long as 99 years or even as short as an hour).[v]

She immediately agreed and they contracted a series of Mu’tah marriages. They courted for some time and eventually she converted into Islam and they contracted a permanent Nikah (Muslim marriage). She shared her experience on a blog, which attracted a lot of negative comments. Some even accusing her for abusing their religion. One of the comments read, “Lol u need to get a life Pishabi… If ure hydro ure a disgrace to us all.”

 

She felt that there was nothing wrong with Mu’tah in fact it opens doors to Muslims to experience courting and find out about their spouse without abusing their religion. Then why all this negativity and why such comments? The old custom of Mu’tah marriages was justified as it was useful while men were at war or on travel.This was continuously suppressed and ruthlessly condemned by the Caliph Omar thus giving a probable reason as to why the IthnaAshari School still practices this union. [vi]

More often than not this union has been used and abused by men. It is used as a ruse by men to trap ignorant women, children, orphans and illegitimate children and force them to indulge in sexual relations with them.[vii]The Sunni school of thought has categorized this kind of union between two people as ‘Haram, meaning that act which is forbidden or prohibited by Islamic law.'[viii]

Fatima, another 20 year old who lived in the United States of America, met a man online four years ago. They fell in love and she was taught about Islam by him. She slowly converted herself and he convinced her to contract a Mu’tah marriage after muttering a small prayer she was told they were married. Later on she discovered that he was cheating on her and went to reside with her mother. While she was at her mother’s she found out she was pregnant and was convinced by her husband that he would abandon his infidel ways and devote himself to raising their family. When she was seven months into her pregnancy someone close to her told her that Mu’tah was not an accepted form of marriage and while the continuance of such a marriage it is preferable not to conceive a child. She was devastated on finding this out. She asked her husband to convert their marriage into a Nikah. She was asked to stop insisting on such a marriage by her husband as a Mu’tah marriage was equally permanent. Later on much to her horror her husband ended the marriage by paying her the required dower, hence abandoning her child and her.

So how did this form of marriage come into existence? After the emergence of Islam many men were asked to go on wars and were hence separated from their loved ones for a very long time. Furthermore they longed for their wives and their company hence constantly being in fear of indulging in adultery that was prohibited[ix] .The “weak ones” feared that they would inevitably commit the crime of adultery hence breaking their strong faith and committing an act of evil and sin.[x]

Hence came in the concept of temporary marriage or Mu’tah that solved the problem which many men faced, including the strong and the weak. This added many powers to the already powerful Muslim man who could form and break ties with a woman without severing his faith at his whims and fancies. Mu’tah hence became a medium through which one could indulge in sexual pleasure as much as he wanted so long as he could financially support these unions. Women who indulged in Mu’tah were termed as “Hired women” [xi] and hence this contract could be carried out with any woman irrespective of conduct or character.Furthermore no witnesses were required. Moreover there was no compulsion of providing a roof or food to this hired woman so long as the woman was paid the money promised for the length or duration of the marriage as mentioned in the contract[xii].

[i] This story was taken from What is wrong with Mu’tah? A true story.http://www.naseeb.com/journals/whats-wrong-with-mutah-a-true-story-33124 (Last seen 15th June, 2014)

[ii]A.Fyzee, Outlines Of Muhammadan Law, 87 (Oxford University press 5thed) (2008)

[iii]Sachiko Murata, ‘Temporary Marriage in Islamic Law’ http://www.al-islam.org/al-serat/muta/ (last accessed April 29, 2014).

[iv]NayerHonarvar, Behind the Veil: Women's Rights in Islamic Societies, Journal of Law and Religion, Vol. 6, pp. 355-387 (1988).

[v]SatyokiKoundinya, The Concept of Muta Marriage: Is it a Social Evil?,http://ssrn.com/abstract=1666848 (last visited May 25th 2014)

[vi]Id.

[vii]Id.

[viii] However it is still practiced in several parts of the Shia dominant regions of the world. The rulings on Mu’tah have been different in different regions. Whereas, some jurists have banned the Mu’tah, others have upheld the same basing their conclusions on Quranic texts and Hadith.

[ix]A.Fyzee, Outlines Of Muhammadan Law, 69 (Oxford University press 5thed) (2008)

[x]SatyokiKoundinya, The Concept of Muta Marriage: Is it a Social Evil?,http://ssrn.com/abstract=1666848 (last visited May 25th 2014)

[xi]Supra 9

[xii]See Temporary marriage and its illegitimacy in Islam, http://www.islamicweb.com/beliefs/cults/muta.htm (Last visited May 27th 2014)