This article is written by Astitva Kumar, a student at Guru Gobind Singh Indraprastha University. The article is the outcome of detailed research and analysis on domestic violence as well as the legislation that surrounds it and punishes the culprits thereof.
Approximately 86% of women, who were victims of violence, never sought help, and 77% of the victims never told anybody about the incident(s). Domestic violence isn’t a new issue; it’s been around for a long time. An alarming spike in incidences of domestic violence in India has recently become a major source of concern during the shutdown era. Nonetheless, this evil has spread over the world and continues to develop.
Women are the most susceptible in such situations and are frequently targeted, but this does not exclude men. Most countries have laws in place to deal with such situations; India, for example, has a thorough statute called The Protection of Women from Domestic Violence Act, 2005. (hereinafter, referred to as DVA).
What is domestic violence?
- Causing mental or physical harm, injury, or risk to life, limb, health, safety, or well-being.
- Causing the lady pain, injury, or danger to coerce her or any other person related to her to satisfy any dowry demand.
- Assault, criminal intimidation, and criminal force are all examples of “physical abuse.”
- Forced sexual intercourse, forcing the aggrieved person to watch pornography or other obscene material, forcibly exploiting women to entertain others, or any other act of sexual nature, abusing, demeaning, degrading, or otherwise violating one’s dignity are all examples of ‘sexual abuse.’
- Accusation/aspersion on character or conduct, insult for not bringing dowry, Insult for not having a male child, etc. Forcing a woman to not attend school, college, or indeed any educational institution, blocking her from getting a job, making repeated threats to harm anyone she likes, and preventing her from marrying a man she likes. There are a lot of scenarios that include economic exploitation that is mostly related to the maintenance of basic needs for a woman and her children. Not providing shelter and throwing them out of the house, not giving food for having the basic nutrients in the body, restricting or obstructing one from accessing or using any part of the house, preventing or obstructing one from working, non-payment of rent in the case of rented accommodation, selling or pawning stridhan or any other valuables without informing and agreement. Taking away a person’s salary, income, or pay without their consent. Other bills, such as electricity, remain unpaid.
Domestic violence as a criminal act
Domestic violence is described as aggressive and threatening behaviour occurring well within the house, most commonly including the serious assault of a spouse or partner. Except for a few nations in the Middle East, Western Asia, and Sub-Saharan Africa, most countries have condemned it as a heinous and horrific crime. At some period of life, it is estimated that 35% of women globally have encountered physical and/or sexual established relationship violence or sexual violence by a non-partner (excluding sexual harassment). However, according to certain national studies, up to 70% of women have experienced physical and/or sexual violence from an intimate partner at some point in their lives. Domestic violence not only harms a woman physically but also has serious mental health ramifications. Serious, long-term domestic violence can lead to PTSD, notably battered woman syndrome, in which the survivor fears there is no way out and suffers in silence. This one hurts one’s consciousness, ego, and confidence.
Domestic violence is affected by a multitude of circumstances, including alcoholism, drug abuse, substance misuse, loveless marriages, mental illness, patriarchy, and so on. It is a severe crime that destroys a person not only physically but also psychologically, which is why it is illegal.
History of domestic violence
Domestic violence in India is an odd argument: it is both the most common and the least reported and publicised of basic human rights abuses. Traditional Indian culture’s strictly patriarchal rules and structure, as well as the stark divide between public and private life, have made the issue of domestic violence a complex and nuanced one, resulting in a long list of victims. As examples of custodial rape and dowry-related violence were broadcast in the media, the subject of violence against women grabbed national emphasis, resulting in high-profile legal prosecutions. The rape case in Mathura in 1972 sparked nationwide protests calling for rape laws to be changed and for the government to accept responsibility for crimes perpetrated by its agents. During this time, the death of married women in cooking fires had also begun to become more common. These fatalities, nicknamed ‘dowry deaths’ and ‘bride burnings,’ were swiftly linked to brides being abused for failing to transfer money, assets, and wealth from their natal to marital families. In addition to the politicisation of such instances by women’s activists, the protestors exposed the multiple forms of discrimination that women face, a subject that is important to the women’s question. Though the term “domestic violence” did not exist in legal vernacular until 2005, the enactment of sections 498A and 304B of the Indian Penal Code in 1983 was a step in the right direction. Cruelty to wives became a non-bailSble criminal offence punishable by up to five years in jail after the passage of Section 498A. Section 304B made dowry deaths a crime punishable by a minimum of seven years in prison, with the possibility of life imprisonment. The National Democratic Alliance (NDA) ruling government tabled the ‘Protection for Domestic Violence Bill, 2001 in the Lok Sabha on March 8, 2002, eight years after the Lawyers Collective submitted a draft of the domestic violence bill. Instead of protecting women from domestic violence, the new bill was designed to keep the family together. On several fronts, the Bill was a setback; the rights of the offended person were disregarded, and the time frame for completing legal procedures was not mentioned. The clauses were evaluated by the Parliamentary Standing Committee to which the bill was referred, and the National Commission for Women’s opinions were consulted as well. Nothing significant happened in the intervening two years. One of the key priorities of the UPA government was the enactment of civil legislation on domestic violence, as stated in its Common Minimum Program. The draft received approval from the cabinet in June 2005. The bill was signed into law as the Protection of Women from Domestic Violence Act, 2005, after it was passed by both Houses (namely: Lok Sabha and Rajya Sabha) and received Presidential approval. It came into effect on the 26th of October 2006.
Domestic Violence Act, 2005
The provisions of the Act are undoubtedly so in terms of their increased reach and the amount to which they contradict heteronormative patriarchal notions of family and a woman’s “natural” position within it, bringing rights politics into the home. Domestic violence is now defined as violence in all forms of domestic relationships, including abuse in a woman’s natal home and relationships in the “nature of marriage”, according to the Act. Aside from child abuse, the Act also considers the prevalence of violence against older women. The Act broadens the scope of redress by granting women the right to live in shared households regardless of who owns the property. The Act divides men into perpetrators and women into victims, and it establishes a time limit for cases to be resolved.
Atrocities faced by women leads to domestic violence
Intimate partners are responsible for up to 38% of all female killings worldwide. In addition to domestic violence, 6% of women worldwide say they’ve been sexually assaulted by someone who isn’t their spouse, while data on non-partner sexual violence is scarce. Men are the most common perpetrators of intimate partner and sexual violence against women. Women’s exposure to abusive partners and multiple risk factors has led to the rapid development of the COVID-19 epidemic and its social and economic consequences, while their access to treatment has been limited. Humanitarian crises and displacement can increase current kinds of violence, such as violence perpetrated by intimate partners and non-partner sexual abuse, and can also result in the launch of various forms of violence.
Potential causes for both intimate partner and sexual violence
- Lower levels of education;
- A history of child maltreatment;
- Witnessing family violence;
- Antisocial personality disorder;
- Harmful use of alcohol;
- Harmful masculine behaviour, including having multiple partners or attitudes that con don violence;
- Low level of gender equality;
- Low levels of women’s access to paid employment etc.
History of exposure to violence, marital disagreement and discontent, communication issues between couples, and male domineering behaviours towards their spouses are all factors linked to intimate partner violence.
Women suffer substantial short- and long-term physical, mental, sexual, and reproductive health problems as a result of intimate relationships (physical, sexual, and psychological) and intimate violence. They also have an impact on the health and well-being of their children. Women, their families, and societies bear tremendous social and economic costs as a result of this abuse.
- Have fatal consequences, such as homicide or suicide.
- Intimate partner violence causes injuries, with 42% of women who have experienced it reporting a due to the severity of it.
- Maternal deaths, stillbirths, ovarian issues, and sexual transmission illnesses, including HIV, are all repercussions. Women who had been physically or sexually abused were 1.5 times more likely to have a sexually transmitted pathogen and, in some parts of the world, HIV, as shown in 2013 WHO study on the health burden associated with violence against women.
- Premature babies, stillbirths, preterm delivery, and low-birth-weight kids are all increased by domestic violence during pregnancy. According to the study, women who experienced domestic violence were 16% more likely to miscarry and 41% more likely to give birth prematurely.
- These forms of violence can lead to depression, post-traumatic disorder (PTSD) and other anxiety disorders, sleep difficulties, eating disorders, and suicide attempts. It is found that women who have experienced domestic violence were almost twice likely to experience depression and drinking problems.
- Domestic/sexual violence, particularly during childhood, can lead to increased smoking, substance use and risky behaviour. It is also associated with the perpetration of violence for males and being a victim of violence for females.
Impact on children due to domestic violence
- Children growing up in violent families are more likely to exhibit a variety of psychological distress and emotional stress. These can also be linked to later in life perpetrating or experiencing violence.
- Intimate partner violence has also been linked to higher rates of infant and child mortality and morbidity (due to diarrhoea or malnutrition, for example), as well as poorer immunisation rates.
The economic and social cost
Intimate partner and sexual violence have tremendous social and economic costs that have far-reaching consequences. Separation, reluctance to work, financial loss, lack of engagement in usual activities, and restricted ability to care for themselves and their children are all potential consequences for women.
Who is covered under this specific Act
- A woman may make a complaint on her behalf if she believes she has been subjected to domestic abuse by the offender. A child is also entitled to redress under the Domestic Violence Act. On behalf of her minor kid, the mother of such a child can apply to the court (whether male or female).
- The children can be included as co-applicants in contingencies when the mother files an action against the defendant on her behalf.
Who can file the complaint?
- A woman may make a complaint on her behalf if she believes she has been the victim of domestic violence by the perpetrator or another person.
- Under the Domestic Violence Act, a child is also entitled to protection. On behalf of her minor kid, the mother of such a child can apply (whether male or female).
A complaint can be filed against:
- Any adult male member of the family who has had a household relationship with the woman.
- Relatives of the husband or current partner include both male and female relations of the male partner.
‘Domestic relationship’ refers to a relationship between two individuals who live or have lived together in a shared household at some point along the way. Consanguineous marriage, relationships, unions, and interactions like marriage are all included. A shared household is one in which the woman resides or has lived in a domestic partnership with the man.
She may or may not be living in the shared home at the time of the application for relief, but as long as the domestic relationship exists, she is entitled to remedy under the Domestic Violence Act. Even though she has no right, title, or interest in the shared residence, every woman in a domestic relationship has the right to live there.
Provision for a shelter house as well as medical assistance
An aggrieved person, or a Protection Officer or service provider acting on her behalf, can submit a request to the person in charge of a shelter house or a medical facility, for shelter or medical assistance.
Why do women stay?
Economic reliance has been identified as the primary cause. Women who lack the financial means to support themselves are obliged to stay in violent situations and are unable to be free of abuse. Women do not like the option of separation or divorce due to deeply ingrained values and culture.
They are also afraid of the repercussions of reporting abuse and express a desire to avoid the stigma of being labelled as battered women. Women are also forced to suffer silently within the four walls of their homes due to a lack of information about alternatives. Some women may believe that they deserve to be beaten because they did something wrong.
Other women keep quiet about the abuse because they are afraid of retaliation from their partners if they divulge family secrets, or they are ashamed of their situation. Women’s rights are violated when they are subjected to violence. It is a disgrace to states that fail to prohibit it, as well as to society that tolerates and even perpetuates it. It must be eradicated by political will, as well as legal and civil action across the board.
Who is eligible to make a magistrate’s application?
- An aggrieved person, a Protection Officer, or anybody else acting on their behalf may apply regularly to coerce with the magistrate.
- It is the protection officer’s and service provider’s responsibility to support the woman who is a victim of domestic violence in any way possible.
Orders that can be passed by Magistrate under the act
The magistrate may:
- Direct the respondent or the aggrieved person to get counselling, either individually or jointly.
- Direct that the woman not be evicted or ostracised from any portion of the household.
- The proceedings may be ordered to be performed in-camera if it is deemed essential.
- Issue a protective order, ensuring the woman’s safety.
- Grant interim custody of any child or children to the aggrieved individual through custody orders.
- Compensation/damages for the injuries should be awarded. This includes mental anguish and emotional distress produced by the respondent’s actions of domestic violence.
- Breach of a Magistrate’s order is a criminal offence that is punishable by law.
Domestic Incident Report
When a wife files a domestic violence complaint under Section 12 of the Domestic Violence Act against her husband and other relatives, various documentation is included in the case application, including a Domestic Incident Report (DIR). It is, in fact, the case file’s prima facie document.
The concern is that, in the vast majority of domestic violence situations, no accused is ever summoned for an investigation. The concerned Protection Officer (short for “PO”) does not go to the house where the alleged domestic abuse took place. For the production of such a DIR, the PO does not call the accused husband’s parents, relatives, or neighbours.
Why is DIR required?
The proviso to Section 12(1) of the Domestic Violence Act states, “Provided that, before passing any order on such application, the Magistrate shall take into consideration any domestic incident report received by him from the Protection Officer or the service provider,” implying that the Honorable Magistrate must consider the DIR even before passing any order under DV application u/s 12 of the DV Act.
Preparation of DIR
The preparation of a DIR is a court action, and the PO is a public official who is completely under the direction and supervision of the concerned Magistrate, as stated in Section 9 of the DV Act.
After an unbiased investigation and study of facts, communication with both parties, and a visitation to the shared residence where suspected domestic abuse occurred, it is the responsibility of the Protection Officer (PO) to bring the truth to light. The fundamental goal of the DIR preparation provisions is to reveal the truth and determine if the application is false or frivolous. It has the potential to save the respondents from pain and humiliation. The main consequence of calling such a report must be the disclosure of facts. In other words, the act of summoning a DIR (including the production of the report) should result in the advancement of justice. The compilation of the DIR is not something that should be done regularly. Any DIR that has not been investigated shall be viewed as a normal violation of the Hon’ble Court’s processes. The concept of due process is included in the Natural Justice Principle, and most crucially, the processes should be conducted in a way that is fair to all parties, as expressed in the Latin maxim Audi alteram partem, which means “let the other side be heard as well.”
In the case of Delhi Transport Corporation v. DTC Mazdoor Congress, it has been held by Supreme Court that violation of rules of natural justice results is arbitrary and discriminatory in the same way where discrimination is the result of the state action; it is a violation of Article 14, and therefore, a violation of the principle of natural justice by state action is a violation of article 14. Article 14, however, is not the sole repository of the principle of natural justice. What it does is that any law or state action violating them will be struck down. The principles of natural justice, however, apply not only to the legislation and the state action but also where any tribunal authority or body of men, not coming within the definition of “state “ Article 12 is charged with the duty of deciding the matter. In case the principle of natural justice requires that it must decide such a matter fairly and impartially.
The Supreme Court, in the case of Santosh Bakshi v. State of Punjab and others, emphasised that investigation is a serious matter in a domestic violence case and DIR cannot be submitted without paper verification and investigation.
The Supreme Court, in the case of State of Orissa v. DR. Bina Pani Dei (1962) 2 SCR 625, held that even an administrative order or decision in matters involving civil consequences has to be made consistently with rules of natural justice.
Rights that are recognised by this law
The law is so liberal and progressive that it recognizes a woman’s right to live in a joint household with her husband or partner even if there is a legal conflict. As a result, it prohibits husbands from throwing their wives out of the house when there is a disagreement. A husband’s behaviour will now be considered unlawful, and not just unethical. Even though she is a victim of domestic violence, she has the right to live in a shared home, which she shares with an abusive partner. Section 17 of the law, which grants all married women or female partners in the mystic partnership the right to do well in the home (known as the shared household in legal terms), applies regardless of whether she has any right, title, or beneficial interest in the residence.
The legislation stipulates that if an abused woman demands alternative housing, she must be given it, and in such cases, a partner must be for both the condition and her support.
Significantly, the law recognises the necessity for emergency relief by the abused woman, which must be provided by the husband. A lady cannot be prevented from filing a domestic abuse complaint or application. She has a legal right to the protection officer’s and service providers’ services and assistance, as defined by the law.
Domestic abuse victims have the right to seek help from the police, shelters, and medical facilities. She also has the option of filing her complaint under Section 498A of the Indian Penal Code at the same time. Sections 18-23 provide a plethora of legal recourse possibilities. She can seek Protection Orders, Residence Orders, Monetary Relief, Child Custody Orders, Compensation Orders, and Interim/Ex parte Orders through the courts.
It will be considered a punishable offence if a husband abuses any of the foregoing rights of the injured woman. In addition to the charges made under this Act, the magistrate might make charges under Section 498A. In addition, the crimes are both cognizable and non-bailable. Violations of the rights listed above could result in a one-year prison sentence and/or a maximum fine of Rs 20,000.
SR Batra v. Taruna Batra (2006)
The Supreme Court ruled that because the definition of common household in S.2(s) contains drafting flaws, it shall be interpreted reasonably.
“In terms of Section 17(1) of the Act, we believe the wife is only able to claim a right to reside in a shared household, which we define as the house that the husband owns or rents or the house that belongs to the joint family of which the husband is a member. In this scenario, the property in question does not belong to Amit Batra, was not rented to him, and is not a joint family property in which the spouse Amit Batra is a part. It is the sole property of Appellant 2, Amit Batra’s mother. As a result, it can’t be considered a “shared household”.
Satish Chandra Ahuja v. Sneha Ahuja(2020)
In this recent judgment, the Supreme Court held, a shared household can be any premise if the couple has lived there together for a considerable period, even if the owner is of MIL or FIL.
Lalita Toppo v. State of Jharkhand (2018)
In this case, the Supreme Court held that live-in partners and estranged wives are included in the definition of “aggrieved person” under Section 2(a) of the Act.
Sandhya Wankhede v. Manoj Bhimrao Wandkhade (2011)
Section 2(q) of the statute was questioned as to whether it covered female relatives of the respondent. According to the Supreme Court judgment, the term “related” has not been given a limiting connotation, nor has it been precisely defined in the Domestic Violence Act of 2005 to make it only apply to men. In these situations, it is evident that the legislature never meant for female relatives of the husband or male partner to be excluded from the scope of a complaint that might be filed under the domestic violence regulations.
One key piece of legislation that has aided grieving women in our society is the Protection of Women from Domestic Violence Act. It has given courage to every woman who has been victimized by violence since it has safeguards that protect women in every home. It has been a long-standing issue in a patriarchal society, which has degraded women’s dignity. Domestic abuse legislation has had a long path that began with the Indian women’s movement and culminated in a successful law. No law is flawless in and of itself, but we as citizens of the country must recognize the challenges that they face daily.
Sections 20 and 22 provide women with economic freedom and security, as well as a sense of mental serenity. The Act has aided Indian women in ways that are beyond comprehension. Domestic abuse issues have tested women’s tolerance, which is why every woman who has experienced it is now standing up to the demons in their happy light.
Domestic violence legislation is a tool in the hands of women who are subjected to physical, emotional, and financial abuse at home. In developing nations like India, where women are still denied several basic human rights in the guise of tradition, religion, and customs, such legislation is beneficial in allowing women to live in dignity.
Protection orders, monetary relief orders, custody to coerce orders, residence orders, compensation orders, and provisions for victim counselling are among the Act’s remedies that protect and offer relief to such women. Various studies have found that during the lock-down time, there was a significant increase in domestic abuse instances, making their situation more susceptible owing to the breakdown of social and protective networks.
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