RESEARCH PAPER
SEMESTER & PROGRAM: LLM (Second Year) Semester(III)
TITLE- DOMESTIC VIOLENCE IN INDIA
SHIVANI CHOUHAN, ROLL No: A06
HINDI VIDYA PRACHAR SAMITI’S COLLEGE OF LAW MUMBAI
(Year-2022)
ACKNOWLEDGEMENT
This acknowledgement for my dissertation shows and respects all my faculty members and my mentor(s) who played an important role in the making and creation of this Research Paper. First and foremost I would like to give thanks to my mentor and guide at Hindi Vidya Prachar Samiti’s College of Law (HVPS),Mumbai, for their valuable advice and knowledge in writing this Research Paper. Their valuable guidance, constant support and plentiful experience have always encouraged me throughout the making and completion of this Research Paper. I am grateful to all present teaching staff of Hindi Vidya Prachar Samiti’s College of Law (HVPS), for providing all the required academic facilities in accomplishing my research work. I am also thankful for all the support I received from the rest of my family and friends who have guided me while writing this Research Paper.
Last but not least but I am also thankful to my college, Hindi Vidya Prachar Samiti’s College of Law for providing me with the opportunity to complete this project.
INDEX
| Title | Page no. |
| Introduction | 4 |
| Historical Period of Domestic Violence | 4 |
| What is Domestic Violence | 4 |
| Laws for domestic violence against women | 5 |
| Domestic violence against Men | 9 |
| Need for Gender Neutral Legislation | 10 |
| Recent Changes brought in Domestic Violence Act | 13 |
| Conclusion and Suggestions | 13 |
| References | 14 |
INTRODUCTION
The article will be discussing Domestic violence in India which will explain the history of the violence, various laws upon it and recent changes and amendments made to it.
Domestic violence is one of the most prominent and frequent forms of crime which is committed against gender. Both men and women are the victims of this violence. It does not have any universal definition but commonly it is verified as Intimate Partner Violence including children, elder person abuse etc.
The submitted report of the WHO shows the statistics that every third person of the population is a victim of some form of physical or sexual violence. The IPC, 1860 contains various forms of crime which relate to domestic violence like kidnapping and torturing, marital rape, dowry death, genital mutilation, stalking and humiliating and many more like this.
In India, about 70% of the total population of women and 40% of the total population of men are the victims of domestic violence. Thus, it cannot be denied that the force of violence is quite rough and concerning.
WHAT IS DOMESTIC VIOLENCE?
Domestic Violence or Domestic Abuse or Intimate Partner Violence can be understood as a series of behaviour that is taken to maintain the power, domination and control over the partner or any other person. The behaviour we are talking about is most prominently is some form of a brutal act that is committed towards a particular person in order to cause some form of physical and mental harm.
The term is defined under S.3 of The Protection of Women from Domestic Violence Act, 2005. According to the sec, Domestic Violence is any act or omission; or any commission or conduct done by the respondent which likely to cause harm or injuries or threat to health, life, safety or wellbeing whether mentally or physically including physical, emotional, verbal and sexual abuse towards an aggrieved person. It also includes the harassment, injuries, harm caused to coerce the aggrieved person in order to fulfil the unlawful demand of the respondent.
LAWS FOR DOMESTIC VIOLENCE AGAINST WOMEN
It has been considered and shown in many surveys and reports that about 70% of women in a nation are a victim of domestic violence. To curb it, The Protection of Women from Domestic Violence Act, 2005 was introduced. It is a civil statute with an aim to look up to the female victim of domestic violence and support them in a four-fold manner by providing residential order, custodial order, protection order and compensation order.
Earlier, there were no strict laws on domestic violence. The statutory law of crime, the Indian Penal Code had only S.304B for dowry death and S.498A which women could seek recourse. The Domestic Violence Act 2005, defines Domestic Violence in a broader sense by including married women, daughters, mothers.
Constitutional Provisions of domestic violence
The laws upon domestic violence were enacted by the parliament based upon A. 253 of the Indian Constitution. In India, the act upon domestic violence was introduced based upon the recommendations of the UN CEDAW Commission. The main object of the case was based upon A.14, A.15 and A.21.
a. The right of being free from any form of violence
In the case of Francis Coralie Mullin v. Union Territory of Delhi , it was held by the SC that the act which harms, interferes and impairs any individual shall be prohibited under A.21 as such act infuses physical abuse, mental torture which is against the right to life of a person.
b. Right to live with dignity
In the case of Ahmedabad Municipal Corporation v. Nawab Khan Gulab Khan , it was held by the SC that the right to life under A.21 also includes the right to live with dignity. Further, A.14 provides for the rights to be treated equally before the law. Domestic Violence violates the right under A.21 and A.14 of the Indian Constitution of women.
Domestic Violence Act, 2005
The scope of the Domestic Violence Act 2005 was discussed in a decided case BhartibenBipinbhaiTamboli v. State of Gujarat , the court, in this case, said that domestic violence in India has increased. Till 2005, the remedies for the victims of domestic violence were limited. It was either court remedies or the divorce initiation under S.498-A of IPC. Also, the relationship beyond marriage was also not recognized. This led the women to be silent in many aspects.
- Francis Coralie Mullin v. Union Territory of Delhi, 1981 AIR 746
- Ahmedabad Municipal Corporation v. Nawab Khan Gulab Khan, (1997) 11 SCC 123
- Bhartiben Bipinbhai Tamboli v. State of Gujarat and Ors, MANU/GJ/0025/2018
Within the act, there is a wide scope of aggrieved persons which includes women as well as live-in relationships and thereby focuses on protecting women from any form of violence inflicted upon them.
- Who can be dealt with the Domestic Violence Act, 2005?
- Who can file a complaint under the Act, 2005?
- Against whom a complaint can be filed?
- Who can make an application before the magistrate?
- What is the procedure involved in this Act?
Under the act, a woman can make a complaint on her part if she is dragged into domestic violence by any person. The aggrieved person definition under the act includes woman, child, daughter, sister and other domestic relationships of her. On behalf of any child, the mother of the child can proceed before the court to justice.
Further, any child who has been domestically abused can be included as a co-applicant of the case when his/her mother files for an action.
Any woman who believes that she has been dragged to domestic violence by any perpetrator or person can file a complaint under the Act 2005. Within this act, due to its wide scope, a child is also entitled to protection against such abuse. It can be major or minor. In the case of a minor child, the mother of that child could file a case against the perpetrator.
Under the Act, a complaint can be filed against any member of a particular family who shares a domestic relationship with her wife and had any act which results in domestic abuse. It can include the relative family of the husband or the partner. The relatives of the husband include both male and female members.
By the virtue of the act, any aggrieved person or the protection officer or anyone else concerned acting on the aggrieved person’s behalf can file an application before the magistrate. However, it is solely the duty of the protection officer to provide the victim women with the shelter and other required needs.
The trial for domestic violence by the courts is a speedy trial that should be disposed of within two months of the filing of the complaint. For justice under this act, the procedure has been discussed below:
Step I: Providing Information to the Protection office
Any aggrieved person who believes that she has been exposed to domestic violence or likely seems to be the same can inform the incident to the protection officer under S. 8(1) of the DVA 2005.
Once, the protection officer is informed about the incident, it is the duty of the protection officer, magistrate, service provider or police officer to make the victim know her rights. The rights given to the women are:
- Right to make an application in order to receive compensation of relief in form of protection, compensation or monetary relief order.
- Right to utilize the services being provided to the victims as provided by the protection officer. ‘
- Right to free legal services by the virtue of Legal Service Authority Act, 1987.
- Right to file a case under S.498-A of the IPC, 1860.
It is also included that if the protection officer fails to perform his/her duty, he/she is liable for 1-year imprisonment along with a fine of up to Rs. 20,000.
Step II: Making of a report of the incident by the protection officer
Once the incident is narrated to the protection officer, the officer will make the domestic incident report containing all the essentials and relief claimed by the aggrieved person before the magistrate. The magistrate taking cognizance will be the magistrate of first-class or metropolitan who will have jurisdiction in such areas where:
- The victim resides temporarily.
- The respondent is residing.
- The violence happened.
Such copies of the report will also be given to the zonal police station where the violence allegedly took place.
Step III: Filing of Application before the magistrate
After filing of an application before the magistrate by the aggrieved party or anyone on behalf, a date will be fixed for the first proceeding within 3 days after the filing of an application.
Step IV: Notice issued to the respondent
After setting the date of the first proceeding, a notice will be issued and served to the concerned person through the protection officer. Such notice will be served within 2 days of the date of its receipt until and unless any form of magistrate. Step V: Other options available before the magistrate
Step V: Other options available before the magistrate
Under S.14 of the Act, the magistrate can even ask any of the parties to the case to go for counselling with the service provider member who is a counselling expert.
Under S.15 of the Act, the magistrate can seek help from the person, most preferably a woman for discharging his functions.
Step VI: Announcement of magistrate order
After hearing both the parties, if the magistrate opined that the domestic abuse have happened, he may pass protection orders for the victims. Within such protection orders will restrict the respondent from committing the following acts:
a. Act of domestic abuse. b. Abetment of domestic abuse. c. Entering into any place where the victim works. d. Attempting to communicate with the victim. e. alienate the assets or any other property over which both parties have equal rights. f. Threatening those persons who have helped the victim.Residential Order
The residential order, if any, passed by the magistrate will restrict the respondent from:
a. Disposing or distributing the property in possession of the victim. b. Directing the respondent to exclude from shared household. c. Entering the place where the victim resides. d. Restraining the respondent from renouncing the rights of victims from the property. e. Restraining the respondent from disposing of the shared house.Monetary Relief
The court can order the respondent to provide a victim with some sort of monetary relief for the losses incurred by the victim. Such monetary relief includes the earnings loss, medical expenditure, maintenance of the victim and her children.
Custodial Order
It is upon the discretion of the magistrate to grant the custodial rights of a child to the victim or any other person filing an application on the victim’s behalf. The magistrate can specify the visiting arrangements only if he finds that the visit of the respondent is not dangerous for the child.
Compensatory Orders
The magistrate has the discretion to pass the order for the paying of the certain edge of compensation by the respondent to the victim for causing domestic abuse to her. If the act is repeated again and again, then the magistrate has the power to pass the interim or an ex-parte order against the respondent.
Step VII: Steps to be taken against the breach of the court’s order
Where the respondent breaches the court’s order, he became liable for the punishment of up to one year and a fine of approx. Rs. 20,000.
DOMESTIC VIOLENCE AGAINST MEN
India is always considered to be a patriarchal society. So, it is seldom to believe that a male can be a victim of domestic violence. Being in a stereotypical society like India, every middle-class male has been taught that men are strong. That men don’t have any mental weakness and are supposed to be a pillar of strength for a family. Complaining about domestic violence by a male tends to be a cause of social labelling of the man with the remarks of ‘weak’, ‘feeble’ and ‘effeminate’. Moreover, in today’s world, many gender-biased laws have been introduced in favour of women, men are forced to be silent about domestic violence. Males are subjected to abuse in many forms such as fake rape cases, fake molestation charges, inequality in the work place and public places, fake dowry cases and many more.
In a study conducted in a rural area of Haryana, it was seen that approx. 52.4% of males suffer domestic violence in India. The most common violence experienced by men is at the hands of their wives or their intimate partners in their life.
According to a study conducted by My nation, along with Family Foundation on domestic violence against men, it was seen that between the time period of April 2005 to March 2006, a total of 1650 men were interviewed, in which it was seen that Indian women are the most abusing and dominating.
Article 14 states that there shall be equality before the law and equal protection before the law. It means that each and every person is equal in the eyes of law and has the right to be equally protected by law. However, there are no provisions regarding domestic violence against men in the Indian Penal Code, 1890. Due to various laws and legal provisions, men don’t come forward fearing that no one will take any action regarding their abuse.
According to section 498A of the Indian Penal Code, 1860, only a male is held liable for cruelty or abuse against his wife. There are no statutes or sections or clauses or sub-clauses that make any women liable for domestic violence against men.
Effects of Domestic Violence against men
Any type of violence, either in physical nature or psychological nature, is a clear violation of human rights. These unnoticed and unreported violence against men may lead to depression, divorce, social awkwardness, suicides, loss in confidence, denial in accepting family and friends and many more. It has been observed suicides are more common in married men or men having intimate relations as compared to single males.
The effects may also cause the risk of indulgence in harmful habits such as smoking, drinking, drug abuse; mental illness and fear; heart diseases and chronic diseases. A study conducted by WHO concluded that women think more about committing suicide but men die by suicide more frequently.
NEED OF GENDER-NEUTRAL LEGISLATION
Human rights and equality of gender is right of both men and women across the country. In today’s scenario, where there exists strict legislation for women protection from various forms of crime and violence, these laws are though made for women protection from cruel criminal minds, the laws seem to be misused many times. Where men get falsely alleged for rape, sexual assault, violence, harassment etc. there is an alarming need for gender-neutral laws.
The term domestic violence is frequently used for most women but not for men. It is to be recognized that not women only, but men are also facing domestic violence. Despite Intimate Partner Violence, it shall be recognized as spousal violence.
With the lack of gender-neutral laws, false allegations and crime against men are also increasing day by day. It shall be taken into account and through special amendments, the exclusive provisions for the men also shall be enacted.
LEGAL ISSUES AND CHALLENGES
Although the Protection of Women from Domestic Violence Act, 2005 ensures the justice and protection of rights of the women who have gone through domestic abuse, yet with passing time, it can be seen that the effectiveness level of the act is not satisfactory. Still, the cases of domestic violence subsist due to unawareness in the country.
Legal Issues
Everyone is equal in the eyes of law and every individual whether national or alien are granted some of the basic rights which though are not absolute but cannot be taken away by anybody. The rights incorporated under the Indian Constitution ensures equality amongst men and women across the country. Below mentioned are some of the legal issues faced by the domestic violence act in India.
- It is an ignominy of the country and laws that despite their efforts, women are still struggling for their position and equality. Domestic violence is an example of the same. Coming to the justice and remedy, it is unfortunate to evaluate that there is a lack of awareness about the laws and provisions of the act which could help them out.
- According to the Act, the victim women can straightly move to the Protection Officer under the Act for the sake of justice but it has been recorded that very few persons directly move to the Protection Officer in these cases and mainly first go to make a complaint before the police.
- It is the Protection Officer who handles such cases but it is so unfortunate to see that the appointed Protection Officer take up the cases just as mere work rather than taking up to provide aid to the victim. The enactment of the law is such that the result should be given within 90 days but due to the lethargic and lenient work of officers, the cases remain unsolved within the stipulated time.
- d. Apart from the above-mentioned issues, the law has been such that now a case, the laws made for the benefits and security of women are getting misused by them to make a trap against innocent men. We come across so many cases relating to this which shows sheer injustice to the men. Due to the exclusive application of these kinds of laws, it is only women who can make a complaint against men. It clearly violates the concept of equality before the law under A.14 of the Indian Constitution.
- e. As per S.32(2) of the Protection of Women from Domestic Violence Act, 2005, the court of justice will always consider statements made by a victim as right and true. For establishing the commitment of the offence, the statement of such a woman is sufficient. Therefore, no need arises to provide any supporting evidence for it. This bars the remedial claim of men against women who have falsely trapped them by filing a false complaint to seek revenge over personal grudges.
- f. Another issue is that if a victim woman files a complaint and it is deliberately considered that the abuse has been committed by the husband without any proof. She is not even asked to prove them. Magistrate directly take steps for her protection to avoid the commission of the offence in future under S.18 of the act. This gives leverage of protection to a woman and chances of punishment of innocent person.
Legal Challenges
Apart from the issues, the act has some positive reliance as well. Although the Act is misused yet the purpose of the act was for benefit of the women. The act is a comprehensive statute. It applies to married women who have been with their partners in a shared household including both nuclear and joint families. Even the mothers, sisters, widows or single women living with such an abuser person can get legal protection under the Act.
The Act also applies to those females who are in live-in-relationship as it provided a broad interpretation of the term “domestic violence” which included live-in-relationships. In the case of Chanmuniya v. Virendra Kumar Singh Kushwaha , the issue was related to the receiving maintenance in live-in relationships under S.125 of CrPC. The court said that the term “wife” shall have a broad interpretation including such women who is living in a live-in relationship for a long time. There is no need for proof of marriage to get maintenance under S.125 of CrPC.
Chanmuniya v. Virendra Kumar Singh Kushwaha, (2011) 1 SCC 141Further, in the case of Sandhya Manoj Wankhade v. Manoj Bhimrao Wankhade , the issue before the court was that whether the relative of the husband includes females under s.2(q) of Act? The court said that the females are considered as a relative of the husband. Although, in the proviso of s.2(q) the term “female” is not been used. However, the term “relative” does not restrict the inclusion of females.
In the case of Harsora v. Kusum Harsora , the scope of the Protection of Women from Domestic Violence Act, 2005 got broadened. The term “Adult Male” was deleted making way for the prosecution of victim women of harassment and abuse.
Main Legal Challenges
- In past years, it has been recorded that the laws made for the protection of women were getting misused by taking exorbitant advantage by filing false complaints.
- Initially, S.498-A of IPC, 1860 and S.113-A of Indian Evidence Act, 1872 were inserted through the 1983 Criminal Law Amendment to govern the horrific incidents of newly married women because of dowry and other demands of her in-laws. The objective of the provision was to look after these evil offences. Unfortunately, such women could also not receive any recourse from the public authorities as it was against the traditions.
- It was seen in several cases that women falsely allege their husbands under S.498-A of IPC, 1860 for sake of revenge and personal grudges or to get rid of in-laws. The misuse of the section and other relatable Acts are still there and increasing at a fast pace. The educated women doing so knows that the offence under this section is cognizable and non-bailable.
- The Protection of Women from Domestic Violence Act, 2005 is inexhaustive and has several lacunas for only serving the false allegations of women and punishing innocent men. It is a general principle and the accused is presumed to be innocent until proven guilty. In these cases, the process to defend and prove innocence is completely barred.
RECENT CHANGES BROUGHT IN THE DOMESTIC VIOLENCE ACT, 2005
In a significant judgment recently, the Rajasthan HC made an observation and decided that S.2(a) of the DVA, 2005 where the definition of aggrieved person is given, the definition of aggrieved will also include foreign citizen and shall be given protection under the act thereof.
Sandhya Manoj Wankhade v. Manoj Bhimrao Wankhade, (2011) 3 SCC 650
Harsora v. Kusum Harsora, AIR 2016 SC 4774
Further, the Allahabad HC clearly stated recently that a woman cannot be deprived of her marital home based upon the proceeding under the Senior Citizens Act, 2007.
The Delhi HC in one of its cases upon domestic violence stated that the DVA, 2005 cannot be used as a ploy by the son to claim either right over his father’s property or keep it his possession based upon the strength of his wife.
CONCLUSION AND SUGGESTIONS
The various forms of violence against men and women occurring in various parts of the nation holds a negative representation of the country. Despite the technological development and exclusive laws for grievous forms of violence, the cases are still alarming. Thus, it is the right time to take identify the lacunas and form more influencing and active laws. Further, the state shall realize the need to have gender-neutral laws which could not be much misused and justice cannot get denied.
A few of the suggestions to curb this is to have more comprehensive as well as extensive counselling sessions and should be advised to manage their marital bonds. Further, the punishment granted for the domestic abuse shall be such that it acts as a dissuasion for those who think of committing the act. The media shall be proactive to cover every such news when happens in any part of the country and make it aware to the people and follows to bring justice.
REFERENCES
- Chaudhary, R, Kathiwas, M & Rana, G. (n.d.). Domestic Violence Against Women in India. International Research Journal, 1(2), 1-7. Retrieved from: Click here
- Chewter, C (n.d.). Violence Against Women and Children: Some Legal Issues. Canadian Journal of Family Law, 20, 105-110. Retrieved from: Click here
- Deb, M & Choudhury, J (June 2020). Women & Domestic Violence: A Study in India. Retrieved from: Click here
- (May 2020). Domestic Violence in India. A Summary Report of a Multi-Site Household Survey. Retrieved from: Click here
- Kaur, R & Garg, S (n.d.). Addressing Domestic Violence Against Women: An Unfinished Agenda. Indian Journal of Community Medicine: Official Publication of Indian Association of Preventive & Social Medicine. Retrieved from: Click here
- Protection of Women from Domestic Violence Act, 2005. Retrieved from: Click here