INTRODUCTION:-

The observation made by Justice S. Vaidyanathan of the Madras High Court that “unfortunately, there is no law like Domestic Violence Act for husband to proceed against the wife” has drawn massive attention of the public, jurist and litigants, because the remarks made by the Hon’ble Justice seems to be true in the current scenario when Indian courts too are witnesses of false litigations particularly women laws such as Domestic Violence, 498A, Maintenance and in some instances divorce law also. 

BACKGROUND OF THE CASE:-

The remarked matter as published was a case arising out of a matrimonial dispute between the husband and wife which was decided by the Hon’ble Justice S. Vaidyanathan on 31.03.2021. The petitioner/ husband had filed a divorce case vide H.M.O.P.No.11 of 2015 on the ground of cruelty and voluntary desertion on the part of the wife against the husband before the family court and the same was decided in favour of the husband on 19.02.2020 and as a result, thereof the marriage of the couple was dissolved by a decree of divorce. It appears that days prior to the decree of divorce, anticipating verdict against her, the wife had filed a complaint alleging cruelty and harassment against the petitioner/husband, and based on the allegations made in the complaint, the petitioner/husband was removed from service on 18.02.2020 as he was employed in the Department of Animal Husbandry and Veterinary Sciences. The petitioner/husband had challenged the order of removal from service before the Madras High Court and during the course of hearing the Hon’ble Justice S. Vaidyanathann has made certain relevant and important remarks concerning the misuse of women laws against the husband and also put across that there is no law in favour of the husband to seek redressal for his grievances in case husband faced domestic violence or harassments in the hand of the wife like the Domestic Violence Act. 

It is not the first instance where the court has uttered its views about the misuse of law but there are several occasions where analogous views were expressed through their respective judgments.

MISUSE OF WOMEN LAWS:-

Since the very inception of 498a IPC, we have seen that Sec.498A IPC became a more controversial section in the IPC as 498A IPC was being misused at a very high scale. Misuse of 498a IPC was also noticed by the many High Courts and also by the Supreme Court. Time and again various High Courts and Supreme Court have also recommended the Law Commission of India to bring suitable change in the law to prevent misuse of sec.498a IPC. The law commission has recommended that the offence under section 498A IPC should be made a compoundable offence with the permission of the Court. Justice Malimath Committee also recommended that it should be made compoundable as well as bailable. The Men’s rights activists insist that the law is not serving its purpose and being misused by women to harass their husbands and their relatives. There are many instances where the woman has filed the complaint with a mala fide intention of causing harassment to her husband and in-laws to settle her personal score. In such cases, even though the husband and his relatives got acquitted or discharged even then, they suffer from immense mental and economic distress. Not only above it has also been noticed that whenever marriages failed for some other reason, the wife has filed a case of 498A IPC against the husband and his family members and also distant relative who has nothing to do with the matrimonial affairs of the parties and even when they are living in different cities for decades. In the case of Sushil Kumar Sharma V. UOI, (2005) 6 SCC 281 it has been observed by the Supreme Court that:-“Merely because the provision is constitutional and intra virus, does not give a license to unscrupulous persons to wreck personal vendetta or unleash harassment. It may, therefore, become necessary for the legislature to find out ways how the makers of frivolous complaints or allegations can be appropriately dealt with. Till then the Courts have to take care of the situation within the existing frame-work.” Court further observed that by misusing the provision, new legal terrorism can be unleashed. In the case of Arnesh Kumar v. the State of Bihar, (2014) 8 SCC 273 The Hon’ble Supreme Court has issued necessary guidelines to command the illegal arrest in the cases related to 498 A IPC. In the case of Rajesh Sharma & Ors. v. State of U.P., 2017 SCC OnLine SC 821 the Hon’ble Supreme Court had once again occasion to deal with a question which had arisen in the case whether any directions are called for to prevent the misuse of section 498A as acknowledge in certain studies and decisions. After considering the background of the issue and also taking into the account the 243rd report of the law commission dated 30th August 2012, and 140th report of the Rajya Sabha committee on petitions (September 2011), the court issued necessary directions to prevent the misuse of section 498IPC.

MISUSE OF MAINTENANCE LAWS:- There are few acknowledged and reported instances where the court found that the maintenance case was filed to extort money by the estranged wife. In the case of  Suman Bhasin Vs.Neeraj Bhasin CC No.316/3/2007 Dated 27.05.2015 MM, Saket District Court” the Court came heavily and imposed a cost of Rs. one lakh for filing a false Domestic Violence case against Husband and in-laws. The court in its judgment has observed that Domestic Violence law has been misused. In the case of Tanushree Dahiya Vs. Sachin Dahiya case no.26/2016 decided on 15.01.2019,ADJ Saket District Court N.Delhi  the court while rejecting the maintenance petition filed by the wife who is well qualified has also observed that Court should not be allowed to be used to extort money and junked woman’s maintenance plea and imposed a cost of Rs. One lac on the woman, saying the proceeding u/s 125 Cr. P.C was filed only to blackmail the Husband.

Justice S. Vaidyanathan also makes another important observation in the very same case with regard to the concept of Hindu marriage. He observed that “The present generation must understand that, marriage is not a contract, but a sacramental one. Of course, the word ‘Sacrament’ has no meaning after coming into effect of the Domestic Violence Act, 2005, that, approves live-in-relationship. Husband and wife must realize that ‘ego’ and ‘intolerance’ are like footwear and should be left out of their house when they enter the home, else, the child/children will have to face a miserable life” The anxiety and expression of the court is quite clear and logical that by way of special legislation the status of a legally wedded wife has been put at par with the woman who is in live-in-relationship. For better understanding the term of live-in-relationship and its authenticity, we could take advantage of relevant definitions where the word of live-in-relationship got a legal sanction as given in the Protection of Women from Domestic Violence Act 2005.

“Domestic Relationship” has been defined in Section 2(f) in the following words:-  "domestic relationship" means a relationship between two persons who live or have, at any point of time, lived together in a shared household, when they are related by consanguinity, marriage, or through a relationship in the nature of marriage, adoption or are family members living together as a joint family. 

“Aggrieved person” has been defined in Section 2(a) in the following words:- 

 “aggrieved person” means 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 expression “respondent” is defined in Section 2 (q) in the following words:- "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: Provided that an aggrieved wife or female living in a relationship in the nature of a marriage may also file a complaint against a relative of the husband or the male partner.

The words “adult male” as occurring in Section 2(q) has been struck down by the Supreme Court in the case of Hiral P. Harsora and Ors. Vs. Kusum narottamdas Harsora and Ors., (2016) 10 SCC 165. Consequently, the respondent can also be a female in a domestic relationship with an aggrieved person.

Therefore by virtue of the above definitions, no doubt the live-in-relationship has got legal shield in India since the implementation of the Protection of Women from Domestic Violence Act 2005 and the relationship in the nature of marriage like live-in-relationship has been legalized equally as marriage relationship solemnized under the Hindu Marriage Act so for as the case under Domestic Violence Act is a concern. But a fundamental question arose here as to what is the law about the dissolution of live-in-relationship?. For example, if a person who is in a live-in-relationship wants to terminate it in a legal way or a couple who are in a live-in-relationship wants to terminate it in a legal way then what is the law to govern them and which legal process they should adopt? Law is very much silent on this aspect so it can be said that it is a very poorly drafted law which does not meet all legal requirement as it has no provision to deal with all the issues arising out of a relationship in compare of the other law such as Hindu Marriage Act. But so for marriage is a concern, the concept of Hindu Marriage under the Act is still a sacrament as envisaged under the Hindu Law. It cannot, therefore, be contracted by the mere consent of the parties to it. As such a marriage to be valid under the act must satisfy the conditions as laid down in section 5 and should be solemnized as specified in section 7 of the Hindu Marriage Act 1955.

CONCEPT OF SACRAMENT:-

In ancient times, there was no concept of Divorce in Hindu Marriages and once marriage solemnized between the male and female, it could not be broken down by either spouse and marriage runs up to the death of the parties. Since the inception of Hindu marriage, the concept of marriage is a religious sacrament and it was considered to an act of GOD which was not allowed to be broken by the married couple and was carried till last breath. The object behind it was that having regard to the high ideals which the Hindu community always has lived up to the end of the life and Divorce should not be made easy and the law should be so framed as to provide the maximum opportunities for mutual adjustment. But after the enactment of the Hindu Marriage Act 1955 the concept of marriage and its spirit has been changed as mainly, the Hindu Marriage Act 1955 allowed dissolution of marriage and judicial separation under the order of the competent court. 

CONCLUSION:-

Therefore the observation and expression given by Hon’ble Justice S. Vaidyanathan are quite important and the same is required to be considered in a way as the current situation demands. It is necessary to deal with the issues judicially and now the time has come to think over by the Parliament to enact proper legislation to curb the misuse of women beneficial laws and also legislate a proper law which will redress the grievances of the men who are facing domestic issues and false implications.

*The writer is a practicing Advocate in the Supreme Court of India. The views are personal which are based on judgments passed by the Hon’ble Courts. The contents are not for the purpose of legal advice.

*By Mahesh Tiwari Adv.