This article is written by Pallavi Chandrasekhar, pursuing a Diploma in Advanced Contract Drafting, Negotiation and Dispute Resolution from LawSikho.

Introduction

Every third woman above the age of 15 has faced domestic violence of some form in India, according to the National Family Health Survey. If we include psychological, emotional, sexual, verbal, and unreported cases, the ratio would be higher. For this purpose, the Prevention of Domestic Violence Act 2005 (DV Act) was enacted. Under Section 3 of the DV Act, domestic violence is defined as any act, omission or commission that a) harms or injures the health, safety, life, limb, well-being of a person including physical, sexual, verbal, emotional or economic abuse, and or b) harasses, harms, endangers, injures the aggrieved person for demand of dowry, and or c)has the effect of threatening the aggrieved person or anyone related to the aggrieved person by any conduct mentioned in (a) or (b); and or d) otherwise causes the aggrieved person physical or mental harm.

The “aggrieved person” in the above-mentioned definition is defined as a ‘woman’ who has been or is in a domestic relationship with the ‘respondent’ and who is alleged to have been subjected to domestic violence by the aggressor. The ‘respondent’ means ‘adult male’ who is in a domestic relationship with the aggrieved person. It would include the respondent’s relatives if the aggrieved person is the respondent’s wife.

History of domestic violence

It is said that in ancient times, women were treated as sources of “shakti” or power, they were treated equally and were even eligible for “Brahmacharya” or to get “Brahma” knowledge. During the Vedic age, women were in fact more equal to men than their counterparts in Greece and Rome. After this period women’s education was badly neglected which led to large scale of illiteracy and superstition. Also, the discontinuation of Upanayanam and its linkage to marriage and other rituals had a very disturbing effect on the status of women in India.  

Discontinuance of Upanayanam automatically reduced women to the status of “shudras.” Values of sacrifice, honor, patience, tolerance towards her husband and male relatives were glorified qualities for a woman to possess which was demonstrated by religious practices of Sati, prevention of widow remarriage, etc. Their virtue and honor was linked to their chastity as daughters and as wives it was linked to serving the husband and his household with loyalty. Sita from the Hindu epic Ramayana was regarded as the ideal wife-following her husband to exile in the forest, proving her honor and purity by taking the “agntipariksha”/test of fire is glorified even today. Furthermore, existence of polygamy further reduced the status of women in their marriages. Even in Christian families and Islamic families,men were taught that physical violence was good for women and was a means of controlling and disciplining their wives. The practice of marrying girls below the age of 18 to an adult male also caused domestic violence due to the apparent power dynamics between an adult and a child.

Marriages were an essential gateway to success for every woman. The stronger her spouse in ancient times to the wealthier her husband in modern times, the greater was her achievement. The stigma attached for an unmarried woman and dependency syndrome with which she is raised all become factors for the perpetuation of domestic violence. From early years women are taught to be dependent on their fathers and brothers for economic support and later her husband for financial support. This lack of agency additionally reduces the chances of complaints, discussions and opening up about domestic abuse.  

Myths have been propagated such as the existence of domestic violence only in poor, uneducated and/or alcoholic households, but, most of them are untrue. Domestic violence is prevalent across class, caste, religion, education, or dependency on alcohol. Moreover, children of abusive families do not necessarily turn out to be perpetrators of violence, likewise kids of non-violent families could possibly become aggressors.

Even today, it is normalized to the extent that female relatives and friends of the aggrieved person (who could possibly be educated and living in an urban surrounding) would ask her ‘to tolerate’ or state things like ‘it happens to everyone.’

History of laws against domestic violence

1. As early as 1829 due to the efforts of Raja Ram Mohan Roy, the then Governor General of British India, Lord William Bentick declared the practice of Sati as illegal. 
2. The Child Marriage Restraint Act of 1929 defined a child as a female below the age of 18 and a male below the age of 21. Any male aged between 18-21 marrying a child would be punished with imprisonment of up to 15 days, a fine of Rs. 1,000/- or both.  Punishment for a male above the age of 21 marrying a child was imprisonment of three months or fine or both.

Laws against domestic violence

1. The earliest legislation against domestic violence post-independence is the Dowry Prohibition Act of 1961 (DP Act). Under Sec 2 of the DP Act, dowry is defined as any property or valuable security given or agreed to be given, directly or indirectly, one party to a marriage to the other, by parents of a party to a marriage to the other at or before or any time after the marriage. Under Sec 3 of the DP Act, the minimum punishment for giving or taking dowry is five years and fine is not less than Rs 15,000/- and the penalty for demanding dowry is between six months to two years. 
2. Under Sec 5(iii) of the Hindu Marriage Act, 1955; a marriage may be solemnized between two Hindus if the bridegroom has completed the age of 21 years and the bride has completed the age of 18years at the time of marriage. These ages were inserted in 1978. Marriages between adults and children are voidable under the Act and punishable for up to two years of imprisonment or a fine of up to Rs. One Lakh, or both.
3. The Commission of Sati (Prevention) Act, 1987 was enacted in 1988. Despite the practice of burning the widow alive with her husband (definition of Sati) appearing to be abhorrent for years, it was only criminalized 32 year ago. Under Sec 3 of the Act, attempt to commit Sati is punishable up to six months imprisonment or with fine or both.  Abetment to commit Sati is punishable with death or life imprisonment and with fine.  This has gone a long way in almost eradicating the practice in India.  However, it is still glorified in parts of Rajasthan and Madhya Pradesh.
4. Sec 498A was also inserted in the Indian Penal Code (IPC) in 1983 punishing the husband and his relatives for cruelty to his wife. This act is punishable with up to three years of imprisonment and fine.  
5. Similarly, Sec 304B was inserted in the IPC in 1986 punishing the husband and his family members for death of the wife due to demand for dowry within the seven years of marriage.  
6. Prohibition of Child Marriage Act, 2006 was enacted in 2007. Under Sec 3 of the Act, child marriage is voidable at the option of the contracting party who was a child at the time of marriage. Under Sec 9, if a male above the age of 18 marries a child (girl below the age of 18), he shall be punished with imprisonment which may extend to two years, or with a fine of Rs. One Lakh. Any person solemnizing such a marriage would also be punished for the same term and fine.
7. The Prohibition of Domestic Violence Act, 2005 defines domestic violence and the parties involved. Sec 3 defines physical, verbal, sexual abuse, and even economic abuse.  It also lays down the duties of service providers, police officers, magistrate shelter homes, and medical facilities, while handling cases of domestic violence (Ss. 5,6 and 7).  It appoints protection officers in each district to assist the magistrate (Ss. 8&9).  It lays down duties of the government as well (Sec 11). Chapter IV entirely deals with procedure for obtaining orders and reliefs which includes amongst other things counseling, in camera proceedings, protection orders, residence orders, monetary reliefs, child custody, compensation orders, etc.

Effect of domestic violence on children’s psyche

Usually daughter’s model their childhood and adult behavior and emotional response based on their mothers’ behavior and response to situations. If in a household, the daughter observes the mother being abused (physically, emotionally, verbally, economically or sexually)by her father or relatives, and the mother tolerates/internalizes the abuse without reporting it, the daughters believe that this is how they should also react to abuse if such were to happen to them in the future. It might not be true always; but the possibility of such an occurrence is quite high.  It impacts her future intimate relationships where she starts to believe that all men are like her father/abusive relative and she must either emotionally shut off from the intimate partner or not emotionally invest in intimate relationships at all.  

The child could also be in depression and resort to coping mechanisms of drugs, alcohol, cigarettes, multiple non-intimate relationships, dishonesty, etc. She might also have trust issues with her friends as well.  It will also have a negative effect on her grades in school/educational institution, thereby affecting her career as well. Several studies have shown the adverse impact of abusive parental relationships on the psyche of the child.

Young men also learn that it is ok or even good to control their wives or discipline them by abusing them. Such fathers would be poor role models to their children. They start at a young age by abusing their female friends, objectifying them or not treating them with respect or looking at females as people who are below them in the society. The young male child could also find himself feeling powerless for not being able to protect his mother in such a circumstance and vow to be better than his father. Any violence at home affects the child’s relationships at school and also their studies.

Empowering yourself against domestic violence

Empowerment comes from educating oneself about the causes, symptoms, and solutions.  One can educate oneself about causes and domestic violence in the following manner:

1. Reading books, articles, journals, studies, reports, etc. on domestic violence in India and abroad.
2. Watching movies/documentaries/TV shows on intimate partner violence.  Some recommended by this author are Thappad (2020, available on Prime Video), Gully Boy (2019, on Prime Video, parts on polygamy, domestic violence, mother-in-law indirectly allowing the abuse, etc.)Big Little Lies (2017, on Hotstar), Secret Superstar (2017, on Netflix), Provoked (2006), etc.
3. Talking to other friends/family/even children openly if you have survived domestic abuse in any form.
4. Reading the related laws on domestic violence such the DV Act, DP Act, etc.

One can attempt to conquer the abuse being faced by oneself, loved one, or third party by:

1. Calling a women’s rights’ lawyer or the police.
2. Approaching the State Commission for Women or National Commission for Women for their help.
3. Contacting support groups such as Sneha for support from others who are domestic abuse survivors.
4. Talking about the abuse with loved ones especially children of such abusive marriages and realize that there is no stigma attached to the domestic abuse survivor.
5. Getting counseling or psychotherapy for coming out of the abusive relationship.
6. Trying to get economic independence from the abuser to reduce financial dependency.

Drawbacks of present laws 

While the DV Act was a watershed legislation in covering all forms of abuse including sexual and economic abuse, marital rape was not specifically defined in it.  Explanation I (ii) to Sec 3 of the DV Act defines sexual abuse as sexual conduct that abuses, humiliates, degrades, or violates the dignity of a woman. It does not talk about consent or define it. Marital rape is only recognized during marital separation and not while the woman is still living with her spouse.  The Supreme Court in Francis Corallie Muin v. Union Territory of Delhi, 1981 AIR 746 stated that Article 21 of the Constitution includes the right to live with human dignity. At the same time, in The Chairman, Railway Board v. Chandrima Das, (2000) 2 SCC 465 the court held that the crime of rape abuses the right to live with human dignity under Article 21. Yet marital rape which violates a woman’s Article 21 right to live with human dignity is not recognized.

Secondly, the DV Act is not gender neutral. It requires that the aggrieved party can only be a ‘woman’ not a ‘man’/trans-person, homosexual/queer person, etc. A textbook case of domestic violence would be a woman facing abuse from her male relative and his relatives, but a more inclusive definition in today’s age would bode well for reporting and prosecuting.

Thirdly, battered woman’s syndrome (BWS) is not a recognized private defense mechanism under the IPC. BWS is a psychological term where women who face domestic abuse continue to stay with their partners and may sometimes be compelled to kill their partners despite options of escape being available to them.  Prolonged tolerance of intimate partner violence by the woman can also lead to BWS. It is, however, recognized as a legal defense, by some countries such as Canada. In the case of B.D. Khunte v. Union of India, (2015) 1 SCC 286, 296, the apex court stated that if sufficient time had passed between the provocation and murder, the exception of grave and sudden provocation under first exception to Section 300 of the IPC. This gradual and not immediate reaction to a provocation in battered women requires a need to include ‘sustained provocation’ as an exception to murder under the IPC.

Fourthly, child marriages continue to take place in rural India despite legislation being in place.  Fifthly, in urban areas sometimes women file false cases using the DV Act as a weapon to humiliate and traumatize their husbands and in laws. Lot of such women are advised by their lawyers also to do so to get more money from the other party.

Sixthly, the DP Act punishes the dowry giver equally as the person demanding the dowry.  This should ideally be reduced since most families of the bride give dowry under coercion from the groom’s family and in most cases do not do so voluntarily.

Helplines for domestic violence in India

• National Commission for Women, Delhi Helpline Numbers: 011-26942369, 26944740, 26944754, 26944805, 26944809, email- [email protected], complaints and investigation cell: [email protected], legal cell: [email protected]
• Delhi Commission for Women: 011-23379181(all working days, 10 AM. to 5:30 PM),Email: [email protected], Chairperson’s mail: [email protected]
• Maharashtra State Commission for Women: (022) 26592707, 07477722424, Email: [email protected]
• Tamil Nadu State Commission for Women: 044 2859 2750 (does not have a website)
• Karnataka State Commission for Women: 080-22216485/486 Fax: 080-22216485, E-mail: [email protected]
• Sneha in Mumbai Crisis Helpline:  98330 52684 / 91675 35765,One-Stop Crisis Centre At Kem Hospital:  022-24100511

Conclusion

There appears to be several legislations in place for protection of women against domestic violence. The Codes would have some lacuna that could probably be rectified by case law. However, domestic violence would not be eliminated if there was not a complete attitude and behavior change on the part of both men and women with regard to abuse being perpetuated and tolerated.  

In the current COVID-19 pandemic situation, complaints against domestic violence have risen according to the National Commission for Women (NCW). It has not only risen in India but has risen globally at an alarming rate because domestic partners are forced to stay indoors due to lockdowns or quarantines.  Even the United Nations Secretary General has acknowledged this fact.  When women in India have tried to escape and complain to the police, they were asked to “Go home, and sort it out.” The shutdown of even the shelter homes mentioned under the DV Act has left domestic abuse survivors with no choice but to continue living with their abusers.  All this shows the lack of planning on the Indian Government’s part regarding its response to the global pandemic. The NCW has therefore launched a WhatsApp alert number specially for the duration of the lockdown period in India.

References

1. https://www.news18.com/news/india/the-elephant-in-the-room-every-third-woman-in-india-faces-domestic-violence-1654193.html
2. https://shodhganga.inflibnet.ac.in/bitstream/10603/64297/10/10_chapter%204.pdf
3. https://timesofindia.indiatimes.com/Why-sati-is-still-a-burning-issue/articleshow/4897797.cms
4. https://www.aljazeera.com/news/2020/04/locked-abusers-india-domestic-violence-surge-200415092014621.html
5. Battered Woman: The Gendered Notion of Defenses Available, by KeerthanaMedaramerla http://docs.manupatra.in/newsline/articles/Upload/F1D66902-8FAE-4580-BDB1-479D1768B695.pdf
6. https://www.epw.in/engage/article/covid-19-domestic-abuse-and-violence-where-do
7. http://nujslawreview.org/wp-content/uploads/2018/03/11-%E2%80%93-1-%E2%80%93-Aman-Deep.pdf
8. http://www.legalservicesindia.com/article/2369/Marital-Rape.html

---

Students of Lawsikho courses regularly produce writing assignments and work on practical exercises as a part of their coursework and develop themselves in real-life practical skill.

LawSikho has created a telegram group for exchanging legal knowledge, referrals and various opportunities. You can click on this link and join: