This article is written by Kartikey Mishra, from Lloyd Law College.
Legislation can only achieve results by staying relatively close to prevailing social norms[i]
-Johan Vilhelm Aubert
Table of Contents
Introduction
Nowadays Domestic Violence or Intimate Partner Violence (IPV) has regained the attention of the people. The phenomenon of violence is a deep-rooted act which is coming from the time immemorial.
The roots of domestic violence can be traced from “ancient society” itself, Sources like Manusmriti also contain information relating to Domestic violence.[ii]
It is a truism that domestic violence is a global issue, almost all countries, irrespective of the fact that whether developed or underdeveloped countries, all countries have cursed of ‘domestic violence’.
Recently the issue of Domestic Violence grabbed the attention of people, because in our newspapers with the news of COVID 19, we have news of ‘reported a case of domestic violence’.[iii] Also, recently in the month of April, United Nations Secretary-General Antonio Guterres called for a “ceasefire” to address the “horrifying global surge in domestic violence”.[iv]
Fundamentals
Our parliament had passed a law in 2005 to eradicate Domestic violence i.e. Protection of Women from Domestic Violence Act, 2005 (hereinafter DV Act) with this Act, we had Indian Penal Code, 1860; they are the chief laws which deal with the Domestic violence cases.
Definitions
According to Black’s Law Dictionary, “violence” is an unjust or unwarranted exercise of force usually with the accompaniment of vehemence, outrage or fury.[v]
According to DV Act, “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 like marriage, adoption or are family members living together as a joint family;[vi]
According to DV Act, “shared household” means where the person aggrieved lives or at any stage has lived in a domestic relationship either singly or along with the respondent and includes such a household whether owned or tenanted either jointly by the aggrieved person and the respondent, or owned or tenanted by either of them in respect of which either the aggrieved person or the respondent or both jointly or singly have any right, title, interest or equity and includes such a household which may belong to the joint family of which the respondent is a member, irrespective of whether the respondent or the aggrieved person has any right, title or interest in the shared household.[vii]
According to DV Act, “domestic violence” is (for this Act only)-
In 3(a) 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;[viii]
In 3(b), the acts are by the respondent; only the purpose for that act is added i.e. for unlawful demand for any dowry or other property or valuable security. There are two other clauses 3(c) and 3(d), they are only expanding the scope of this definition so that the cases like threatening or causes harm.
The above mentioned sections also include two explanations which assist in understanding the ‘words’ used in section 3.
So, the definition part tries to inculcate almost all aspects of domestic violence and the definition provided is inclusive as it uses “includes” in explanations so the provided definition is not ‘straight jacket formula’, it can be expanded through interpretation by the judiciary as time demands.
Background
The phenomenon of violence against women which has been haunting millions of women from centuries, has transformed into a serious worldwide issue cutting across the barriers of religion, wealth, status, and society.
Each day thousands of women in the nation are being abused physically, psychologically and sexually by their male counterparts. These acts of violence take several forms including domestic violence, sexual assaults, rapes, IPV etc.[ix]
So, it is very clear that it is not a naive issue like Bitcoins; it is following us from centuries and still existing with us.
In India, legal development of Domestic violence started in the 1980s, when India ratified Convention on the Elimination of All Forms of Discrimination against Women.[x]
In 1983 India took the first step by inserting 498 A in IPC i.e. Cruelty by husband or his relatives, but after this amendment, a plethora of cases Domestic violence continued.
The Lawyers Collective based on consultations with prominent groups and the UN Framework for Model Legislation on Domestic Violence drafted the current version of the bill, which after deliberations and amendments was passed by the President in 2005 and is known as the Protection of Women from Domestic Violence Act, 2005.[xi]
The preamble of the Act uses the word “more effective”, this is itself evidence that before this Act the condition of the Domestic Violence victim was miserable and no proper law was there. It was a landmark achievement for the battered women who could now see a ray of hope that promised them an end of legal and social subordination.[xii]
This act provided a new direction to the society for filing a case of Domestic violence because it subtracted many psychological barriers and fear of women that come in mind while filing of a case against the ‘in-laws family’, like it provided for an alternative residence to the women U/s 19[xiii] and monetary relief U/s 20.[xiv]
Theories of Domestic Violence
In the past few decades, with increasing evidence regarding the phenomenon of violence, domestic violence has grabbed the attention of several concerned feminists, human rights groups, social scientists and social work practitioners. They had given a plethora of theories, and some of them among are listed here:
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Feminist theory
This theoretical perspective emerged during women’s movement at its peak around 1970. At the core of feminist explanations is of the view that violence is a reflection of unequal power relationship; domestic violence reflects the unequal power of men and women in society and also, therefore, within their personal relationship.[xv] Basically this theory concentrates on the views that since Men are superior to women so they dominate.
-
Psychological theory
The followers of this theory believe that the main reason behind physical violence or abusive nature of ombre with querida is his psyche which evolved in his early times.[xvi]
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The Cycle Theory of Violence
This theory is a very interesting theory because it has divided domestic violence into three phases: (1) The tension building stage (2) The acute battering incident and (3) Kindness and contrite loving behaviour. It emerged from The Battered Women and was published the first time in 1979.[xvii]
In the first stage, when minor battering incidents occur, the woman adapts, rationalizes and externalizes the problem. Tension mounts in the second phase leading to the acute battering incident leading to severe repercussions on the woman physically, emotionally and psychologically. Phase three is welcomed by both the partners, which is marked by uncontrolled love, affection and promises by the husband never to repeat the incidents again. This cycle keeps repeating itself in the lives of almost all battered women.[xviii]
-
Structural Theory
This theory is sub theory of Socio-cultural theories; this theory believes that there are two reasons behind being violent i.e. High stress and low resources. Among the possible sources of stress are economic conditions, bad housing, relative poverty, lack of job opportunities, unfavourable and frustrating work conditions are primary causes for domestic violence.[xix]
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Patriarch Theory
This theory was developed by R.E. Dobash and R.Dobash, it maintains that throughout history, violence has been systematically directed towards women. Economic and social processes operate directly and indirectly to support a patriarchal social order and family structure. Dobash’s central theoretical argument is that patriarchy leads to the subordination of women and contributes to a historical pattern of systematic violence directed against females.[xx]
The above mentioned theories are prominent theories and they can be easily connected with contemporary situations and other theories of Domestic violence revolve more or less around these theories.
Why is Evil Still here?
We call ourselves “modern”, “well cultured” etc. but still we are living with such an evil, and surprisingly not only poor families, but also some elite and as well as educated families also practice this evil.[xxi]
The factors behind continuation can be:
- Financial factors
It is a truism that financial stability brings peace in life, and most of us have experienced it. When a family struggles financially then the person who handles domestic affairs, becomes violent sometimes because of lack of resources and consequently he batters family members.
- Critical inner voice
Sometimes, hombre assumes that their querida are not obedient to them or they are fooling etc. these self prejudice assumptions and low self esteem lead to domestic violence.[xxii]
- Affairs with someone other than companion
Now this case can be with anyone, when someone is not interested in his/her companion and has affairs with someone else then to break ties of relationship from already existing companion, people use domestic violence.
These aforementioned reasons are not the only reason for continuation of Domestic Violence, but the above three reasons are prevalent in contemporary times.
How Pandemic escalated Domestic violence cases?
Violence against women and girls is “A shadow pandemic”[xxiii]. In the month of January, they received a total of 1,462 complaints, out of which 270 were cases of domestic violence. In February, there were 302 cases of reported domestic violence. In March, out of 1323 complaints, 302 were cases of domestic violence. Delhi High court directed the government for the highest level meeting.[xxiv]
Domestic violence goes up whenever families spend more time together, such as the Christmas and summer vacations.[xxv] In my view, financial factors can considered as primary factor for domestic violence in COVID 19, because we have lockdown due to which, companies are closed salaries are cut down they had lost source of income and if families are struggling financially then how peace can be expected also many people who do physical work have no work to do and they are just confined in their homes.
Epilogue
Recommendations for eradicating Domestic violence:
- Drastic change required in the attitude of society, women should not be considered as a burden on anyone, they should be considered as an independent being like men.
- Knock-Knock policy of the Government to be advertised again in the period of lockdown. Everyone is not a monster only some are, so if someone apprehends domestic violence must knock on the door and after this he may complain to authorities.
- Media can also contribute by advertising about the consequences of Domestic violence, which will spread awareness in society and will wake up the conscious of people.
- Patriarchal ideology is required to vanish from the instinct of society, we have to bring Equality in the real world from paper, and most of the people give reason for the patriarchal mindset behind Domestic Violence.
So, Domestic violence can be eradicated through cooperative steps of both hombre and querida and not by law.
References
[i] Steven Vago, & Steven Barkan, Law and Society, 209 (11th ed. Routledge, New York 2017).
[ii] Debasree Lahiri, Legal control of domestic violence in West Bengal a critical study with special reference to implementation of the protection of women from domestic violence act 2005, 60 Sodhganga (May 8, 2020 12:10 AM), http://shodhganga.inflibnet.ac.in:8080/jspui/bitstream/10603/154897/12/12_chapter%202.pdf.
[iii]Dhamini Ratnam, Domestic violence during Covid-19 lockdown emerges as serious concern, Hindustan Times (May7, 2020 12:10 AM), https://www.hindustantimes.com/india-news/domestic-violence-during-covid-19-lockdown-emerges-as-serious-concern/story-mMRq3NnnFvOehgLOOPpe8J.html.
[iv] EPW engage, COVID-19, Domestic Abuse and Violence: Where Do Indian Women Stand?, EPW (May 6, 2020 11:10 AM ), https://www.epw.in/engage/article/covid-19-domestic-abuse-and-violence-where-do.
[v] Bryan A. Garner, Black’s Law Dictionary, (10th Edition 2014).
[vi] §2 (f),The Protection Of Women From Domestic Violence Act, 2005 No. 43, Acts of Parliament, 2005 (India).
[vii] §2 (s),The Protection Of Women From Domestic Violence Act, 2005 No. 43, Acts of Parliament, 2005 (India).
[viii] §3,The Protection Of Women From Domestic Violence Act, 2005 No. 43, Acts of Parliament, 2005 (India).
[ix] Mohd. Ashraf , Domestic Violence and The Law: A Social and Legal Approach, 18 ALJ 97, 97 (2007-08).
[x] United Nation Human Rights https://indicators.ohchr.org/.
[xi] Jyoti Dogra Sood , Understanding Domestic Violence Law, 3 CNLU LJ 91, 93 (2013).
[xii] The Protection Of Women From Domestic Violence Act, 2005 No. 43, Acts of Parliament, 2005 (India).
[xiii] Ibid.
[xiv] Ibid.
[xv] Sharma, Bela Rani, (1997); Women, Marriage, Family violence And Divorce, p – 97.
[xvi] Lahiri, supra note 2 at 68.
[xvii] Id at 70.
[xviii] Id at 71.
[xix] Ibid.
[xx] Id at 72.
[xxi] Ashraf ,supra note 8.
[xxii] Lisa Firestone, Why Domestic Violence Occurs and How to Stop It, The Psychology Today (May 6, 2020 11:10 AM ) https://www.psychologytoday.com/us/blog/compassion-matters/201210/why-domestic-violence-occurs-and-how-stop-it.
[xxiii] Phumzile Mlambo-Ngcuka, Violence against women and girls: the shadow pandemic, UN Women, (May 6, 2020 11:10 AM ) https://www.unwomen.org/en/news/stories/2020/4/statement-ed-phumzile-violence-against-women-during-pandemic.
[xxiv] AICHLS v. Union of India, 2020 SCC Online Del 537.
[xxv] Amanda Taub, A New Covid-19 Crisis: Domestic Abuse Rises Worldwide, NY times, May 8, 2020 1:10 AM) https://www.nytimes.com/2020/04/06/world/coronavirus-domestic-violence.html.
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