Domestic Violence

DOMESTIC VIOLENCE 

Domestic violence is one of the most prevalent and pressing problems India suffers with as a society and with the present conditions it is evident that there needs to be proper protection of women from this deadly evil.

According to the National Family Health Survey-III, 37.2% of women “experienced violence” after marriage. Strangely, 63% of these incidents were reported from urban families rather than the state’s most backward villages. In the year 2015-16 National Family Health Survey IV was conducted which indicated that 31.1% of married women aged 15-49 years experienced spousal violence at least once in their lives. As per the report of The National Crime Records Bureau “Majority of cases under the category of ‘crimes against women’ as recognized by the Indian Penal Code were registered under ‘Cruelty by Husband or His Relatives’ (31.9%).”

Keeping these facts in mind it becomes important to not just have proper and specific laws for domestic violence in India but also to have proper awareness and implementation. 

DEFINITION 

Domestic Violence as defined under Section 3 of Protection Of Women from Domestic Violence Act, 2005 includes 

• Physical, mental, verbal, emotional, sexual and economic abuse
• Harassment for Dowry
• Acts of threatening to abuse the victim or any other person related to her. 

This definition is applicable not just to married women but includes women in live-in relationships as well as family members. 

TYPES OF REMEDIES 

There are mainly two types of legislation which are available as a recourse to the victim 

• CIVIL LEGISLATION 

• CRIMINAL LEGISLATION

Civil legislation which includes Protection of Women from Domestic Violence Act, 2005 came much later and is a more specific and detailed law in order to protect women from domestic violence rather than Section 498a of IPC which never used the term domestic violence. In fact, the only similar class of offences addressed by the IPC dealt with cruelty to married women. All other instances of domestic violence within the household had to be dealt with under the offences that the respective acts of violence constituted under the IPC without any regard to the gender of the victim. However, if increased the ambit of cruelty as a crime it incorporates domestic violence. 

PROTECTION OF WOMEN FROM DOMESTIC VIOLENCE ACT, 2005 

This is a civil piece of legislation which came into force in order to acknowledge every woman’s right to be at home without violence. It is a long, comprehensive and detailed law which gives a specific definition of domestic violence and incorporates every possibility to provide remedy to the victim. 

Women and their relatives can file a complaint under this act. It recognizes  a women’s right to reside in their matrimonial household and lays emphasis on the fact that she cannot be forcefully evicted from there. If in case she is evicted, she has the right to seek monetary compensation and safe shelter. She even has the right to seek free legal aid and medical aid from her perpetrator. In order to ensure that the abuser doesn’t contact or get close to the survivor a magistrate can pass orders for the same under this act. This law is to ensure that women do not get kicked out of their homes and are able to sustain themselves, so that every woman in the country can raise her voice against domestic violence without any fear. 

SECTION 498A OF INDIAN PENAL CODE 

It is a criminal piece of legislation which provides recourse to women in case of cruelty by either the husband or the relatives of the husband. Cruelty as defined under this section includes: 

1. Any conduct that drive a woman to suicide or causes grave injury to her life or health – including mental health. 
2. Harassment in the name of Dowry. 

Even though marital rape is not recognized in India, forced sex with one’s wife can be considered cruelty under this section. 

The courts over the years have recognized different forms of cruelty which are stated as under: 

• persistent denial of food,
• Insisting on perverse sexual conduct,
• Constantly locking a woman out of the house,
• Denying the woman access to children, thereby causing mental torture,
• Physical violence,
• Taunting, demoralizing and putting down the woman with the intention of causing mental torture,
• Confining the woman at home and not allowing her normal social intercourse,
• Abusing children in their mother’s presence with the intention of causing her mental torture,
• Denying the paternity of the children with the intention of inflicting mental pain upon the mother, and
• Threatening divorce unless dowry is given.

The punishment provided under this section extends to three years of imprisonment with fine. 

DOWRY PROHIBITION ACT, 1961 

Dowry as defined under this act includes any property or valuable security given or agreed to be given either directly or indirectly by any party or the parents of either of the parties. Dowry Prohibition Act, 1961 is a criminal piece of legislation which punishes the husband or his relatives who demand dowry with an imprisonment which shall not be less than 6 months and may extend to 2 years and with fine which may extend to ten thousand rupees. 

In case of giving and taking of dowry the penalty includes imprisonment for a term of five years and a fine of fifteen thousand rupees or the amount equivalent to the dowry whichever is more. 

CRIME AGAINST WOMEN CELLS 

It is an initiative of Indian government to help female domestic abuse survivors in a better way. In every District’s police station, a Crime Against Women cell was put in place. 

Women suffering from Domestic Violence may approach these specialised help desks for direct assistance from the police, whether to file an official complaint or follow up on one. Each one is headed by an assistant commissioner. 

This program began in 2010 as Indian Government’s answer to steadily growing numbers of abuse targeting women. 

While the Indian Government has made significant efforts in reducing the largely unchecked epidemic of violence against women, there is still a long way to go. Passing laws against domestic violence is one step towards achieving protection of women from the abuse.However, the fact that humans tend to exploit people they consider inferior to them is one of the reasons why domestic violence is still a large issue in our society and in order to get away with it, the other step is to treat and consider women as equal beings. 

Can a woman seek shelter and financial aid after filing the complaint for domestic violence from the perpetrator? 

Yes. A woman has the right to reside in her matrimonial household and if she is forcefully evicted from there she has the right to seek monetary compensation and safe shelter from her perpetrator. She even has the right to seek free legal and medical aid from her perpetrator.

Is domestic violence a crime only when it is perpetrated by a spouse?

No, domestic violence can be perpetrated by any person who is or was in a domestic relationship with the victim; it is a domestic relationship when two people who live, or have at any point of time lived, together in a shared household, or when they are related by blood or through a relationship in the nature of marriage or adoption. This crime extends to women in live-in relationships as well as family members.

Is domestic violence an offense only when a woman is harmed?

Only a woman who is/was in a domestic relationship with the aggressor can take action under the Protection of Women from Domestic Violence Act, 2005.

While the statute specifically defines the aggressor as “any adult male person,” a number of Supreme Court judgments have held that even a woman can be an aggressor against another woman for committing and/or aiding and abetting acts of domestic violence.

What is the usual procedure followed once a legal complaint is filed? 

Once a complaint is lodged, notices are issued to the aggressor(s) and after hearing them, necessary orders and directions will be passed by the Court.

In cases of extreme urgency and imminent threat to the victim, special orders may be passed by the court at the first hearing itself. 

After the complaint is lodged the Protection officer and the courts take steps to prevent any further acts of domestic violence and to ensure the safety and wellbeing of the victim. 

What should be the first legal step which is to be taken in case of domestic violence?

First legal step would be to approach the police for help or to seek the help of a Protection Officer, appointed by the government to assist victims of domestic violence. A complaint can also be filed before the Magistrate’s Court, a Family Court or the District Court within the jurisdiction of where the act(s) of domestic violence has taken place or where you reside. In taking any of these steps, it is important to be prepared to narrate the acts of domestic violence which were committed in order to seek remedial action from these authorities.

SAMPLE DOMESTIC VIOLENCE COMPLAINT

Domestic Violence Section 12 Complaint Format

Domestic Violence Case Report – India Justice Foundation

About the Organisation

The India Justice Foundation is a non-profit organisation dedicated to providing legal services that meet the needs of the community while fostering the independent practice of the advocates.

The primary aim of the organisation is to provide accessible and affordable justice. The primary cases which the organisation takes up are family law matters, domestic violence cases, civil disputes, mediation, landlord-tenant disputes, contractual disputes, and constitutional violations.

Facts of the Domestic Violence Case

A middle-aged-woman got in contact with the India Justice Foundation to ask for assistance with the predicament she faced at home. The woman was forced out of her own house, and her husband had taken all the money she had saved in her bank account. The incident took place after the lockdown had been imposed nationwide, so when the woman was forced out of her house, she had nowhere to go other than her father’s house.

OUR Response

The India Justice Foundation advised the woman on all the recourses she had available to her. She was advised by the organisation to contact the woman cell of her local police jurisdiction and take up the matter with them. The India Justice Foundation helped the woman to file the complaint and recommended her the lines on which she could solve the issue. When she did so, the police got back in contact.

Response FROM THE POLICE

The concerned Police Station issued a stern warning to the woman’s husband. Both parties had to come to the concerned police station to address the matter. The amount he had taken from her savings account was given back to her, and he had to put it in writing that he would not take actions similar to this in the future. The husband even expressed the desire for them to resolve their matrimonial issues.