Child as the Aggrieved Person

                                             CHILD AS THE AGGRIEVED PERSON

The Protection of Women from Domestic Violence Act, 2005 has been spoken about and written about extensively since the time of its enactment and not all of this writing is in favour of the legislation. Perhaps, it can be stated that the enactment is criticized for an aspect it is most applauded for, that it is a gender specific legislation.  The enactment of a legislation that is gender specific and gives relief to women in different types of relationship without making any judgment on their life is a commendable feat. This article looks at child as an aggrieved person and how the gender specific nature of the Act affects male children in particular.

Research has shown that there is a strong correlation between child abuse and domestic abuse. Studies conducted in the United States have shown that 50% of men who frequently assault their wives also frequently assault their children. The Women's Rural Advocacy Programs describes the following facts concerning child and spouse abuse in the United States:

• Children in homes where domestic violence occurs are physically abused or seriously neglected at a rate 1500% higher than the national average in the general population.
• Lenore Walker's 1984 study found that mothers were 8 times more likely to hurt their children when they were being battered than when they were safe from violence.
• A major study of more than 900 children at battered women's shelters found that nearly 70% of the children were themselves victims of physical abuse or neglect.

Although the above data and studies have been conducted in the United States, the impact of domestic violence and abuse would not be any different amongst children in different countries. The number of the abuses on children might be different in different countries based on their socio economic conditions. But, the impact on children who are exposed to domestic violence would not greatly alter. The way women subjected to domestic violence is the same in every country. Other things play a part in how and when to show the reaction of the women.  Violence and abuse would be the same irrespective of the country it is being committed in. Keeping this mind it becomes imperative to take a critical look at the PWDVA to see if it provides any relief to children.

It is well known that the PWDVA provides relief to the women who are victims of domestic violence. The "aggrieved person" is a 'woman'. Section 2 (a) of the Act defines aggrieved person as "any women 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.. However, "woman" is not defined anywhere in the Act. The Act does not define woman to be below the age of 18 yrs. Hence it can be said that the aggrieved person can be any female person irrespective of their age. Thus the female child would be included in the definition of aggrieved person. But then, where does this leave the male child?

The Act defines "child" as a gender neutral term and it can mean any person below the age of eighteen years.  Under section 2 (b), "child means any person below the age of eighteen years and includes any adopted, step of foster child." Another provision which deals with children in the Act is section 18 (c);

            "The Magistrate may, after giving the aggrieved person and the respondent the opportunity of being heard and on being prima facie satisfied that domestic violence has taken place or is likely to take place, pass a protection order in favour of the aggrieved person and prohibit the respondent from entering the place of employment of the aggrieved person or, if the aggrieved person is a child, its school or any other place frequented by the aggrieved person."

Since the definition of child, as discussed above is gender neutral, a child here need not necessarily mean a female child. It can be a male child. The section that deals with protection order and the Act very clearly states that a child has to be protected from any forms of abuse or violence and the relief is in the form of restraining the respondent from committing any acts of violence.

The Act under Section 25 provides that the Magistrate can grant temporary custody of the child or the children to the aggrieved person. The definition of the child here be the same as in the Act and is a gender neutral term. It can be a male or female child. This protects the children from the abusive parent and ensures that the children live and grow up in violence free home.

The fact that a child needs to be protected from domestic violence has also been recognized in the Rules. Rules 8 (vi) and (viii) specifically include the child with the aggrieved person. It obligates the protection officer to assist the aggrieved person and the child to obtain any medical aid at a medical facility including transportation and to provide transportation to the aggrieved person and the child to a shelter. It is quite clear that the Act intends to give protection to the child but the major question that needs to be answered is; in what capacity? And is this sufficient?

One can say that this is very clear when we talk about female children because there is no express provision to bar the female woman or child from applying for relief under the Act based on the fact that "woman" is undefined. But then is a male child exclusively is not entitled to any relief at all under the Act? Again we can argue if this were the case, then the Act itself would have limited the scope of the definition of "Child", which we have seen is not the case.

Accepting the above rationale we can state that the male child was not expressly meant to be excluded. The only way a male child can avail the benefits under the Act would be if the mother is also the aggrieved person along with the child. To illustrate, a child A if being abused by his father, then he can get relief under the PWDVA only if his mother is also being abused and only along with her can the child be the aggrieved person. If the question is about a child being abused by the mother then, the PWDVA does not provide reliefs to such children whether male or female. The definition of Respondent under the Act restricts this to exclude mothers as respondents under the Act.

 The assumption in the Act seems to be that no child would be abused individually by the respondent i.e. if the child is abused then the mother would too.  Here can we go so far as saying that the very act of committing child abuse by the respondent is also an act of abuse against the mother of the child. Domestic violence and child abuse are not necessarily separate co-existing forms of violence. "There are particular aspects of abusive men's behavior that defy categorization as either child abuse or domestic violence. Part of what needs to be understood here is a double level of intentionality: that an act directed towards one individual is at the same time intended to affect another or others. Examples would include:

• hitting/threatening a woman in front of her children;
• humiliating a woman in front of her children;

and of course the reverse:

• hitting/threatening a child in front of their mother;
• humiliating a child in front of their mother

in order to keep and/or increase control over both."

The PWDVA broadened the scope of what constitutes "violence".  Emotional abuse has been defined broadly in the Act and the definition of violence is not an exhaustive definition but an inclusive definition. Hence the Act gives room for the broadening the scope of domestic violence and emotional abuse under domestic violence.

The arguments presented in the article might seem plausible in theory, but we cannot say that the same will hold water in practice. It has been observed while studying the orders of the trial courts that they dismiss an application by a male child against his father without going into merits of the case. The reason for this dismissal is stated as "the Act does not apply to males". This is order of the trial court in spite of the fact that the mother is also the aggrieved person and alleges domestic violence.  Whether the way to deal with this is to create more awareness among the Judiciary? Or do we need a stricter regime to deal with children who are victims of domestic violence? It may be too early to answer this question and through broader and better implementation of the Act we might get some answers if there are any. An easier way would be to amend the definition of the aggrieved person to include children, both male and female.  Children are as much victims of domestic violence as adults and they would need as much protection if not more from an abusive parent. The law has recognized this in some of its provision but this recognition should be more expressly made to avoid any ambiguity in understanding of the law and its intent. 

Pooja Badarinath 

Research and Advocacy Officer 

Lawyers Collective Women's Rights Initiative

1. All the information and data mentioned here were obtained from the website of  "stop violence against women" at http://www.stopvaw.org/Effects_of_Domestic_Violence_on_Children.html last visited on 7th October 2009. 

2. Handbook on the law of domestic violence, lawyers collective at pg 21

3. Custody orders.-Notwithstanding anything contained in any other law for the time being in force, the Magistrate may, at any stage of hearing of the application for protection order or for any other relief under this Act grant temporary custody of any child or children to the aggrieved person or the person making an application on her behalf and specify, if necessary, the arrangements for visit of such child or children by the respondent: Provided that if the Magistrate is of the opinion that any visit of the respondent may be harmful to the interests of the child or children, the Magistrate shall refuse to allow such visit.

4. Under the heading "duties of the Protection Officer".

5. Section 2 (q); "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;

6. Children & Domestic Violence: Its impacts and Links with woman abuse; Presented by Linda Reagan Impact of Domestic Violence on Children Conference, London, October 2001