Domestic Violence/Cruelty to Male and Need for Legislation

To curb the menace and cruelties to women being the weaker sex several legislations have been enacted in India, i.e. Section 498A of the Indian Penal Code, Section 113-A of the Evidence Act, Section 125 of the Code of Criminal Procedure, Dowry Prohibition Act and some other provisions in the Indian Penal Code and also the latest legislation Protection of Women Against Domestic Violence was enacted.  The latest legislation of Protection of Women from the Domestic Violence Act 2005 for protection of women was enacted in consonance with several International Accords and Conventions under the norms and principles adopted by the United nations for protection of women. In AIR 1951 Nagpur 53 (Sheoshankar v. State of M.P.), the Full Bench of the Madhya Pradesh High Court while discussing Article 14 of the Constitution of India was also pleased to hold that the concept of equality before law implies equal treatment in equal circumstances and the dominant idea common to both the expressions is that of equal justice.  In subsequent decisions commencing from the decision reported in AIR 1954 Supreme Court 321 (Yusuf Abdul Aziz v. State of Bombay), the Apex Court while describing the ambit of Article 15 of the Constitution of India, held that the legislations awarding punishment to males and exempting females from the same offences were found to be valid as the classification was not based on sex alone.  The concept of protection of women against cruelties and tortures have brought, us to a situation where all protective legislations are being enacted for the benefit and protection of women only and the male persons and more particularly male spouses are left at lurch and at the mercy of the women who can use and misuse the legislations to suit their objects and ends. This is of course is not a generalization but from time to time such situations do occur.  After the Independence of India we have made great strides in our social, economical, cultural and educational front and also the advancement of science in its various forms had taken us a long leap forward. The women of yesteryears are more and more educated, enlightened, independent excepting in some grey areas of rural India and the women have started enjoying their new found upliftments and overall developments in all possible ways. The development of education has also taken the women to the road of self-sufficiency and much needed independency but in some areas it has also created more matrimonial rights between the male spouse and the female spouses. For every petty action between a male and female spouses Section 498-A of the Indian Penal Code along with other provisions of law are being resorted to and in some cases it is used as a machine for causing distress and harassment to the male spouse and his family members.  In AIR 1975 Rajasthan at page 7 (Priti Parihar v. Kailash Singh), it was observed by the Court that the cruelty include actions or omissions which injures the susceptibilities of the affected spouse and cause him mental agony to which sufferer alone can state. Reliance was also placed in the decision of Richardson v. Richardson (1949 All ER 330). The principle laid down by the Punjab and Haryana High Court and reported in 1988 Cr LJ 1048 (Jagadish Chandra v. State of Haryana) the Court was also pleased to observe that the willful conduct of the accused taking liquors daily in spite of protects by his wife and coming home late at night does not fulfill the essential requirements and conditions of cruelty as given in Section 498A of the Indian Penal Code.  We may also consider the fact that in the present day in our social context a large number of women are required to perform their jobs in odd hours of the day and night and as such it cannot be accepted that the women would be physically and mentally alert to bestow proper care, love and attention to male spouses for a happy matrimonial blissful life particularly in the urban areas and the same being a cause of mental agony the offence of cruelty and torture can very well be bestowed by women to male spouses. There are also other avocations and jobs which demands more from a women and as a result the male can be left at the receiving end of the women without any legal protection whatsoever.  In the several areas of the society the women are also taking part in social, political, educational and cultural activities leaving the entire household in the control of relations and servants thereby depriving the male from their companies when they are most needed.  In AIR 1988 Kerala 244 (Gangadharan v. T. K. Thankam) the Court was also pleased to observe that the amended provisions of the Hindu Marriage Act was not intended to re-introduce the concept of danger to life and limb but the Courts will have to interpret and analyze what constitute cruelties depending on many factors such as status of parties, education physical and mental condition and should come to its own conclusion in a given case.  The concept of cruelty cannot be attributed to women only and the male can also be a subject thereof from the hands of the women as was rightly pointed out by the Apex Court in a number of cases where the Court held that cruelty or harassment need not be physical but mental torture in a given case and is sufficient to cause cruelty. It can never be safely and conclusively said that the males are beyond the domain of cruelties and tortures caused by women and the definition of cruelties as has been pronounced by Judicial decisions are not bestowed on male by women at the present stage of the society where the male domination is fast losing its ground.  The Protection of Women from Domestic Violence Act 2005 was enforced to protect the women from harassment ranging from physical beating, emotional torture, sexual abuse, denial of basic amenities, verbal insults of calling of names, maligning characters and other offences but no attention was given by the law-makers to the fact that males can also be subject to such offences in the hand of women in certain circumstances and as such the time has now come for a re-thinking of the matter of protection of males from the hands of women as well.  In D. K. Basus’ case reported in AIR 1997 Supreme Court 610 the Apex Court although speaking in a different matter was pleased to hold that the term ‘Torture’ has not been defined in the Constitution of India and other laws. Torture of a human being is an essentially an instrument to impose the Will of the strong over the weak by sufferings. This also leads to a irresistible conclusion that where the women are strong they can safely impose their Will on the weaker male and which will come within the purview of torture.  The Parliament now in its wisdom recently appreciated the problem now being faced by male spouses in particular although belated by publishing on Sept. 2004 Dr. Justice Mallinath Committee report whcih has made recommendations for public suggestions and in one of its recommendation felt that a less tolerant and impulsive women may lodge a FIR on trivial acts and as a result the husband and the family members may languish in jail custody. To avoid such cruelties and tortures to males the time is ripe enough to enact an appropriate legislation to protect the males also from all kinds of cruelties and tortures in the hand of women as and when they are so committed.  It was rightly observed by the Apex Court in Madhu Kisawar v. State of Bihar reported in AIR 1996 Supreme Court 1864-Law is the manifestation of principles of justice, equity and good conscience. Rule of law should establish a uniform pattern for harmonious existence in a society where every individual would exercise his right to the best of his advantage to achieve excellence, subject to protective discrimination. The best advantage of one person could be the worst disadvantage to another. Law steps in to iron out such creases and ensures equality of protection to individuals as well as group liberties...... Justice, equality and fraternity are trinity for social and economical equality. Therefore, law is the foundation on which the potential; of the society stands.’

Author Name: Taranga Pandit