When wife hits husband, is it domestic violence? Delhi case puts law ‘limited to women’ under lens

When a self-proclaimed “ideal husband” filed a domestic violence case against his “dominating” spouse in October, a lower court in Delhi heard him out and issued a summons to the wife. However, the wife has now approached the Delhi High Court with the plea that India’s domestic violence law applies only to women.

The case, born out of an acrimonious marriage where both parties have alleged abuse, has thrown up a thorny question — can a case be registered by a man against a woman under India’s domestic violence law? According to the lower court it can, but the wife’s lawyer Ashima Mandla has argued that it cannot in a petition to the high court.

The law’s full nomenclature is Protection of Women from Domestic Violence Act 2005, but for the first time in Delhi, the mahila (women’s) court in Karkardooma East passed an order on 5 November, issuing a summons against the wife on the basis of a husband’s complaint, which he had filed under section 12 of the law.

This section allows an “aggrieved person” to file an application before the magistrate demanding relief under the Act.

The wife has now approached the Delhi high court challenging the summons and the domestic violence case against her. The petition, filed Wednesday through advocate Ashima Mandla, demands the quashing of the proceedings against her.

The woman asserts that “the very title of the Act is self-explanatory that the protection and recourse under the Act are limited to a woman being an aggrieved person”.

What does the law say?

Section 2(a) of the 2005 Act defines an “aggrieved person” as “any woman who is, or has been, in a domestic relationship with the respondent and who alleges to have been subjected to any act of domestic violence by the respondent”.

The Supreme Court, in 2016, had expanded the scope of Section 2(q) of the Act. This provision defines the “respondent”, and earlier said, “respondent means any adult male person who is, or has been, in a domestic relationship with the aggrieved person and against whom the aggrieved person has sought any relief under this Act”.

However, the Supreme Court had struck down the words “adult male”, widening the scope of the law. The judgment paved the way for the prosecution of even women under the law.

However, this judgment only altered the definition of a respondent or an accused under the law and not the definition of “aggrieved woman”.

However, the Karnataka high court, on 18 April 2017, made headlines after it allowed a Bengaluru man to file a domestic violence complaint against his wife. Justice Anand Byrareddy relied on the Supreme Court’s 2016 judgment, to say that men can also invoke provisions of the domestic violence law. However, days later, on his last working day as a judge, Justice Byrareddy withdrew his own order, calling it “patently erroneous”.

The Supreme Court, in July 2018, set aside both the orders passed by the Karnataka high court and asked the petitioner to pursue his pending appeal in the case before the sessions court instead.