Lex Bona Fide – Law Journal

Domestic Violence

Author: Nivethi Natarajan

Introduction Domestic violence is not physical violence alone. Domestic violence is any behavior the aim of which is to realize power and control over a spouse, partner, girl/boyfriend, intimate loved one. Abuse may be a learned behavior; it’s not caused by anger, mental problems, drugs or alcohol, or other familiar excuses.    Types of Domestic Violence When the general public thinks about domestic violence, they usually think about physical assault resulting in visible injuries to the victim. This is only one type of abuse. There are many categories of abusive behavior; each has its own consequences. Lethality involved physical abuse may place the victim at higher risk. Still, the long term destruction of personhood that accompanies the other forms of violence is significant and cannot be minimized.  
  1. Physical violence
The use of physical force against another. Examples include hitting, shoving, grabbing, biting, restraining, shaking, choking, burning, forcing the utilization of drug/alcohol, and assault with a weapon. Physical violence may or might not end in an injury that needs medical attention.  
  1. Sexual violence
The violation of an individual’s bodily integrity (sexual assault), including coercing sexual contact, rape, and prostitution, as well as any unwelcome sexual behavior (sexual harassment), include treating someone in a sexually demeaning manner or the other conducts of a sexual nature, whether physical, verbal or non-verbal. Sexual abuse also includes behavior, limiting reproductive rights, such as preventing the use of contractive methods and forcing abortion.    
  1. Economic abuse
Making or attempting to make the victim financially dependent on the abuser. Examples of this include preventing or forbidding an intimate partner from working or gaining an education, controlling the financial resources, and withholding access to economic resources.  
  1. Psychological abuse
Intimidation, threats of harm, and isolation. Examples include instilling fear in an intimate partner through threatening behavior, damaging property or abusing pets, constant supervision, or controlling what the victim does and who they ask.  
  1. Emotional abuse
Undermining an individual’s sense of self-worth. Examples of emotional abuse include constant criticism, name-calling, embarrassing, mocking, and humiliating.   What causes domestic violence?   Domestic violence may be a choice, and it’s a learned behavior. For these reasons, it is difficult to say that any single factor causes domestic violence. However, subsequent beliefs and attitudes are common for abusers:  
  • Sense of entitlement
  • A feeling that they should have power and control over their partner
  • The belief that they can get away with it
  • The learned experience that being abusive gets them what they need
  • The belief that their lives should take priority
  Domestic Violence Cases across India   Everyone has heard of someone amongst their families, friends, or acquaintances who have suffered domestic violence, i.e., some kind of verbal, physical, sexual, or economic abuse.   There are also plenty of statistics substantiating these unfortunate realities.  
  • 1 in 3 women worldwide experience physical or sexual abuse from their intimate partners or non-partners (WHO 2017). In India, the definition of a ‘domestic relationship’ includes a woman’s relationship with her husband or live-in partner and with his relatives.
  • As per the National Family Health Survey IV conducted in 2015–2016,31.1% of married women aged 15-49 years experienced spousal violence at least once in their lives.
  • The National Crime Records Bureau reports that “Majority of cases under the category of ‘crimes against women’ as recognized by the Indian Penal Code was registered under ‘Cruelty by Husband or His Relatives’ (31.9%).” These statistics show how prevalent private violence is and how grave and urgent an issue is, requiring our collective attention as a society.
    Is domestic violence the next pandemic in India?   The National Commission for Women (NCW), which receives domestic violence complaints from across the country, has recorded a more than two-fold rise in gender-based violence in the national Coronavirus lockdown period. The total complaints from women rose from 116 within the first week of March (March 2-8), to 257 within the final week (March 23-April 1).    Domestic violence instances have doubled than what it had been before the lockdown. The cases of violence are high in Uttar Pradesh, Bihar, Haryana, and Punjab,” says NCW chief Rekha Sharma. She says the main reason for the rise of domestic violence is that the men are at home, and they are taking out their frustration on women, and they refuse to participate in domestic work. Women are also confined within the four walls of the house, and they cannot share their grief with anybody.   The victims are also scared of complaining to the police because they fear that harassment will increase. Sharma says, “Most of the complaints are coming via email. My team is working 24/7, and we are shifting the victims to hostels or helping them reach their parents’ homes.” Job loss, salary cuts, an uncertain future arising out of the lockdown has everyone jittery. “I see my self-esteem being crushed every day,” says Sunanda Desai, a working woman from an upper-middle-class family in Mumbai. “I am questioned every single day for things not been done well. There is stress at my workplace and reception. I am shouted at by my husband, my in-laws, and even my children. There are fights and violence in the house that I have never experienced before in my ten years of marriage,” she says.   VarkhaChulani, clinical psychologist and psychotherapist said – “Not used to getting their hands dirty, many men are struggling to cope. They feel they are being bossed around, to do the dishes, wash their clothes. Their ego is getting bruised as men are unable to stand being told to help. Stereotypical ideologies exist – it’s the woman’s job to cook, clean, wash. It’s the man’s job to earn. Even though we seem to have progressed in paying lip service to be ‘liberal,’ the actual test is in the living. And this confinement is throwing up the ‘real’ mindsets of partners.” The violence of domestic abuse is worse within the weaker section of the society.   Laws in India against domestic violence   Domestic violence at home is, unfortunately, the reality of Indian society, a cliché. In the Indian Patriarchal setup, it turned into a satisfactory practice to mishandle women. There might be numerous explanations behind the event of domestic violence. Hence India has various legislations for the same. There are three laws in place in India that deal directly with domestic violence:   Section 498A of the Indian Penal Code Indian Penal Code, 1860, is the most critical substantive criminal law to impose certain amendments in it concerning cruelties against women fundamentally married women. Section 498 A deals with certain things in terms of cruelty which read as:  
  • Any willful conduct which is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health of the woman;
  • Harassment of the women with a view of coercing her or any a person related to her to meet any unlawful demand for any property or any valuable security or is on account of her failure by her or any person related to her to meet any demands
  Explanation According to this section, married women can file the case against her husband or her in-laws when she suffers cruelty at their hands. Hence it is essential to understand the meaning of cruelty for this section. In the case of ‘Inder Raj Malik vs. Sunita Malik,’ it was held that the word ‘cruelty’ is defined in the explanation which among other things says that harassment of a woman to coerce her or any related persons to meet any unlawful demand for any property or any valuable security is cruelty. Kinds of cruelty covered under this section include the following:
  • Cruelty by vexatious litigation
  • Cruelty by deprivation and wasteful habits
  • Cruelty by persistent demand
  • Cruelty by extra-marital relations
  • Harassment for non-dowry demand
  • Cruelty by non-acceptance of baby girl
  • Cruelty by false attacks on chastity
  • Taking away children
  The cruelty under this section would include such a grave act of cruelty, which puts the women under such danger, and it is such a grave that might lead to committing suicide. It is also important to note that it was held in ‘Kaliyaperumal vs. State of Tamil Nadu that cruelty is a common essential in offenses under both the sections 304B and 498A of IPC.   Discussion of section 304 shall be made in the further section of the notes. Also, S.498A IPC does not only deal with dowry deaths but also any wilful conduct on the part of the husband, which causes harm to the wife’s ‘life, limb or health (whether mental or physical).’ To prove that cruelty was caused under Explanation a) of S.498A IPC, it is not essential to show or put forth that the woman was beaten up-abusing her verbally, denying her conjugal rights, not speaking to her would fall into the ambit of mental cruelty. Showing any mercy to abusers or giving them the ‘benefit of the doubt’ when some proofs to torture at their hands are present is entirely wrong.   The Dowry Prohibition Act, 1961 The provision of the Dowry Prohibition Act mainly deals with issues relating to Dowry and its related offenses in general. Dowry means the transfer of parental property at the time of marriage of their daughter. It is a system of providing a certain amount of financial assistance to the groom’s family in the form of money, property, gold, etc.   The Social evil of Dowry was spread to a large extent so far abolishing the act of providing and accepting Dowry, which leads to various financial crises too many families in India. The Government formulated the Dowry Prohibition Act in the year 1961 so that there will be an eye of law in regulating such actions involving delivery and acceptance dowry. The act provides various provisions relating to the term ‘dowry’ and regulations relating to the punishment for the offense of Dowry and the concerned officers. They are entitled to the authority to look into such matters. The act also provides certain powers to make rules and regulations regarding giving and accepting Dowry. But the fact is that almost all the marriages are taking place in the absolute assurance given by the family of both the spouses, mainly the bride.   The original content of the Dowry Prohibition Act was broadly decided to be ineffectual in controlling the activity of Dowry. Different types of violence against women kept on being connected to an inability to fulfill dowry needs. Therefore, the enactment experienced a subsequent amendment.   In 1984, it was changed to specify that presents given to a bride or a groom at the time of a wedding are allowed. However, the law required that a list be maintained describing each gift, its value, the identity of the person giving it, and the person’s relation to either party to the marriage. The act and relevant sections of the Indian Penal Code were further amended to protect female victims of dowry-related violence. Another layer of legal protection was provided in 2005 under the Protection of Women from Domestic Violence Act. Amendments made to the first Dowry Prohibition Act likewise established the least and most punishments forgiving and accepting Dowry and made a punishment for requesting Dowry or publicizing offers of money or property regarding a marriage. The Indian Penal Code has likewise modified in 1983 established specific crimes of dowry-related cruelty, dowry death, and abetment of suicide. These enactments punished violence against women by their husbands or their relatives when proof of dowry demands or dowry harassment could be shown.   The Protection of Women from Domestic Violence Act, 2005 The Protection of Women from Domestic Violence Act (or the Domestic Violence Act) is excellent legislation enacted in 2005 to tackle this problem. The actin theory goes a long way towards the protection of women in the domestic setup. The Protection of Women from Domestic Violence Act 2005 is a parliamentary act enacted to protect the women from domestic violence, which came into force by 26 October 2006. This act provides for the first time definition of ‘domestic violence,’ making the purview of violence broad by including physical and emotional, verbal, sexual, and economic abuse. This is a civil law for protection orders and not meant to be applied criminally. The Domestic Violence Act is an act that provides for more effective protection of the rights of women guaranteed under the constitution who are victims of any sort of violence within the family and matters connected in addition to that or incidental to that.   Definition of domestic violence is provided under section 3 of the act as “any act, omission or commission or conduct of the respondent shall constitute domestic violence in case it:  
  • Harms or injures or endangers the health, safety, life, limb or well-being, whether mental or physical, of the aggrieved person or tends to do so and includes causing physical abuse, sexual abuse, verbal and emotional abuse, and economic abuse;
  • Harasses harms injures or endangers the aggrieved person to coerce her or any other person related to her to meet any unlawful demand for any dowry or other property or valuable security;
  • Has the effect of threatening the aggrieved person or any a person related to her by any conduct mentioned in clause (a) or clause (b); or
  • otherwise injures or causes harm, whether physical or mental to the aggrieved person.”
  For the explanation of the act, ‘the Act’ also defines “physical abuse,” “sexual abuse,” “verbal and emotional abuse,” and “economic abuse.” In a country like India, wherein due to the patriarchal setup abusing women became an acceptable norm. The Protection of Women from Domestic Violence Act became consequently commendable legislation. It contemplates and acknowledges wider varieties of violence towards women. Before this act, all different domestic violence situations inside the family had to be dealt with under the offenses that the individual acts of violence constituted below the IPC, besides any regard to the gender of the victim. This posed trouble where the victims befell to be youth or ladies who had been dependent on the assailant.  


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