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Protection
of Women from Domestic Violence in India
Dr. A.K.
Pandey
Abstract
Domestic violence is an extremely complex and vicious form
of abuse, committed most often within four walls of the
family house and/ or within a particular deep rooted power
dynamic and socio-economic structure, which do not allow
even the recognition or acknowledgement of this abuse.
Domestic violence is violent victimization of women, within
the boundaries of family, usually by (or his family). A
woman may of any age, she may girl child, and unmarried ,
married or elderly women including a widow or such women
with whom men have marriage like relationship. Violence can
be both physical or psychological or sexual. In India there
unique situation of co-existence of all forms of violence
specially of elimination of women that is selective female foeticide, female infanticide, bride burning. In last many
decades, there has been an alarming increase in the
incidence of violence within and outside family. The worst
forms of verbal, physical, psychological and sexual violence
are committed in their homes. The denial of food, turning a
woman out of house is confining her in house and denying
access to minor children constitute mental torture. The
other form of torture is repeated physical torture. To check
the domestic violence ‘The Protection of Women from Domestic
Violence Act’ was passed in 2005 because the criminal law
was not enough to deal with complex issues involved in
domestic violence. The Act recognizes the need for relief to
be granted as a basic minimum to provide women with violence
free Indians from which they can negotiate their future in
the position of equality that means the nature of relief is
quick and permanent way out to domestic violence. Thus, the
Act marks the foremost but the significant steps towards
achieving a target of equality. Women, who have for decades
being silent victims of oppression, will now have a better
chance of fighting the injustice without the slightest of
hesitation.
1. Introduction
Domestic violence is an extremely complex and vicious form
of abuse, committed most often within four walls of the
family house and /or within a particular deep rooted power
dynamic and socio- economic structure, which do not allow
even the recognition or acknowledgment of this abuse.
Domestic violence1 is defined as an act of omission or
commission stressing the fact that omission can cause as
much heat burn as acts of commission. Thus the section
provides protection against any act, conduct, omission, or
commission that harms or injures or has the potential to
harm or injure, and it will be considered as ‘domestic
violence’. Again the act of omission or commission may be
physical, mental, sexual, emotional or economical (2). Even
a single act of commission or omission may constitute
domestic violence. Now women do not have to suffer a
prolonged period of abuse before taking recourse to the law.
The legislation has widened the scope of domestic violence
and can be broadly related to human rights. In a way it
highlights the notion violence of silence also. The
expansive interpretation of violence of violence is a
critical breakthrough made by an ACT. In addition to this,
the interpretation of the fact that whether the act would
come under the ambit of domestic violence .or not has to be
arrived attacking into consideration the overall facts and
circumstances of the case3.
Domestic Violence is violent victimization of women, within
the boundaries of family, usually by men (or his family)4. A
woman of any age, she be may a girl child, and unmarried,
married or elderly women including a widow are such women
with whom men have marriage like relationship. Violence can
be both physical and psychological. It indicates threats or
aggressive behavior towards her not only to her physical
being, but towards her self -respect and self- confidence.
Domestic Violence against women may be psychological,
physical or sexual. Psychological violence is carried out
with psychological weapons like insults, humiliating
treatment, denial of human existence rather than physical
attack. Physical violence includes all types aggressive
physical behavior towards the women’s body. Sexual violence
could include both passive and active violence. It will also
include cases of perversity. Victimers of domestic violence
may be husband or his family members. Domestic violence
could occasionally be seen in other relations also like by
parents, brothers or others in parent family5.
In
India, there is unique situation of co -existence of all
form of violence specially of elimination of women that is
selective female foeticide, female infanticide, bride
burning .The incidence of violence of all forms within
family has also gone up. Even today various forms of
violence against women are prevalent in our society, though
many cases remain unreported due to one or other reasons.
Women on many occasions are victimized by all sorts of
discrimination, deprivations and obstruction in goal
achieving and responses. These incidences may occur in the
family, offices, industries or even public places.
Inflicting and experiencing violence in many subtle forms
causing and suffering mental pain in day- to- day life has
become ways of our world in interpersonal relationships. The
cruelty, the hate that exists in ourselves is expressed in
the exploitation of the weak by the powerful and cunning.
The worst part of problem is that women today are not
feeling safe and secure even in the family. The concept of
home, sweet home is no more, so far many women, who suffer
violence against themselves by the members of the family
whom is no safe place when it comes to aggressive behavior.
In
last many decades, there has been an alarming increase in
the incidence of violence within and outside family .Today,
we hear more about wife beating, dowry deaths, and sexual
crimes. There are differences between the husband and wife
resulting in increasing divorce. Human feelings are
gradually evaporating and man resorts even to murder the
wife if he does not get the expected dowry or some other
reason. The growing dowry system is gradually making the
baby girl unwanted. People are resorting to foeticide and
sometimes, baby girls are even killed after birth. Women are
ignored in house work and outside home. They are suffering
innumerable tortures from their in-laws and husbands. The
women, right from the moment of stepping into the husband’s
home tries to forget her own identity and adjust everything
according to needs of new place and the people living in it.
In spite of it, she is under a constant watch and is often
criticized for many things. The society, the religion, her
parents and in-laws everyone expects her to become her
husband’s shadow. The worst thing is that all this come as a
rude shock to her after marriage, because the institution of
marriage in our society is highly glamourized. Hence for
women, ‘the union of souls’ turning into a nightmare is a
truly horrifying and shattering experience. The mental
violence may be committed in such a subtle manner that
others will never come to know of it6.
II. Causes of Domestic Violence
In India, where there is no discrimination on grounds of
caste, sex and where each human being has the right to
participate in social process to create conditions of
equality for the socially suppressed and disadvantaged
sections of society, ‘the dice is heavily loaded against
women.’ Female oppression continues from womb to tomb7. In
particular, discrimination occurs within the family, where
norms regarding women’s secondary status are reinforced in
children from birth. Women are viewed as dependants within
the family, hence face severe restrictions. Sometimes the
cultural beliefs, patriarchal social norms, superstitions
and mind set that combine to produce discrimination
patterns8.
Due to
modern science and technology female infanticide has been
replaced by female foeticide. Another reason for the
dangerous phenomenon of female foeticide is the extreme low
valuation of female life and the low status accorded to
women in India. The reduction of birth rates in most of the
Indian states has also contributed to intensification of son
preference in the existing patriarchal society. Because of
traditional gender bias, the cases of female infanticide
occur and the girl child is denied equal opportunities in
terms of food, clothing and education. Fear of sexual abuse
of girl child also leads to female infanticide. Lack of
religious education and degradation of moral standards also
leads to such crime. Hence social and economic factors have
been overemphasized in dynamics of child abuse.
Violence against married women is also a manifestation of
gender discrimination. The specificity of violence in women
involves as analysis of gender and its centrality to the
family which has gender inequalities in day -to -day life.
Domestic violence, battering, dowry, rape, suicide are the
manifestations of gender inequalities within the family
system. There are indications that any social structure
which treats women as fundamentally of less value than men
is conducive to violence against women. Violence against
women in marital situation has more to do with the
relationship of the husband and wife in social matrix. The
cultural factors relating to marriage, status of women and
per structure relationship between men and women in the
society are important while describing violence against
women in the family context. It may also have its origin in
psychological factors like irrational, pathological behavior
of abuser and the victim, which subsequently affect the
interpersonal relationship of both the parties. The lack of
awareness of the right and a general social belief in
women’s sub-ordinance perpetuates a low self image in women
and her inferior status. She is taught that marriage is the
ultimate goal she has to achieve. All this conditioning
gradually becomes the nature of Indian women9. Puberty,
alcoholism, unemployment, frustration and poor role of
modeling also contribute to violent behavior.
It is
also seen that the patriarchal attitude of Indian society
which perceives women as an object rather than a subject and
gives her a low status in the society. Deep rooted ideas
about male superiority enable men to freely exercise
unlimited power over women’s life. Violence is thus a tool
that men use constantly to control women as a result of
highly internalized patriarchal conditioning which accord
men the right to be their wives and thus ostensibly perform
the duty of chastising them. The Indian women directly or
indirectly encouraged to sacrifice her own needs, feelings
or interests constantly for the needs of some other person
or community like children, husband, family or community.
The social conditioning results in the basic difference
between how men and women view themselves and the reason for
their violent interactions. In Kuandalabala v. State of A.P.10. It was observed that ‘Of late there has been an alarming
increase in cases relating to harassment, torture, awaited
suicides and dowry deaths of young innocent brides. The
growing cult of violence and exploitation of young brides
continues unabated there is constant erosion of the basic
human values of tolerance and the spirit of live and let
live. Lack of education and economic dependence of women
have encouraged the greedy perpetrators of the crime.
In the
Indian society the situation of elderly is thought to be
less severe considering the value system, culture and the
still sustaining joint family system. However, the fast
changing Indian social scenario leading to the degeneration
of the joint family system, dislocation of cultural and
family bonds and loss of respect for the aged indicate that
family can no longer be a secure place for elderly. There
are indications that the elderly population still depends on
the family for economic and emotional support. The dependant
position of elderly is a major cause of abuse. Stress is one
of the major factors contributing to the abuse of the
elderly. Social isolation and poverty experienced by the
care takers are additional factors that increase the
possibility of abuse11.
III. Legal & Judicial Responses
Protection under Indian Constitution
The constitution of India contains much provision for
securing the gender justice. The preamble of the
constitution of India promises ‘to secure to all its
citizens Justice - social, economic and political; equality-
of status and opportunity. The Constitution empowers the
state to make special provisions for women and children even
in violation of the obligation not to discriminate among the
citizens. This power has been used to enact special laws for
the protection of women, women workers in factories, mines
and plantations and to provide maternity leaves to women
workers in the organized sectors. The Constitution of India
enunciates the general principle of right to equality and
prohibits the state from denying to any person equality
before law and equal protection of law12. Equality of
opportunities in public employment and office under the
state is guaranteed by Article 16 of Constitution. This
Clause has helped to ensure a significant position and its
status to Indian women. In a landmark judgment in Vishaka v.
State of Rajasthan 13, the Supreme Court has laid down
exhaustive guidelines to prevent sexual harassment of
working women in place of their work. The court held that it
is the duty of employer or other responsible person in work
places or other institutions whether public or private to
prevent sexual harassment of working women. The court also
held that right to life means life with dignity .The primary
responsibility for ensuring such safety and dignity through
suitable legislation, and the creation of the mechanism for
its enforcement, is the responsibility of the legislation
and the executive. The Directive Principles of State Policy
embodying the major goals of welfare State also contain
certain specific items affecting women while the provision
of Article 38 directs the State to bring about a
transformation of socio-economic conditions for the common
good, another Article directs movement towards the
achievement of an egalitarian and just social order, which
would affect men and women equality. Article 39 holds out
the promise of an equal right to adequate means of
livelihood , equal pay for equal work, protection of health
and strength of workers- men, women and children- from abuse
and entry into avocations unsuited to their age and strength
. Just and humane conditions of work and provision of
maternity relief are directed by Article 42.
In
Yousuf Abdul Aziz v. State of Bombay14 the validity of
Section 497 Indian Penal Code which punishes only male
counter part in the offence of adultery which exempts the
women from punishment was challenged as violative of Article
14 and 15(1 ) of the Constitution. The petitioner contended
that even though the women may be equally guilty as abettor
only but the man was punished, which violated the right to
equality on the ground of sex. The Supreme Court upheld the
validity of said provision on the ground that classification
was not based on the ground of sex alone. The Court
obviously relied upon the mandate of Article 15(3) to uphold
this provision.
Protection under Civil law
The Specific recognition of domestic violence is the concept
of cruelty as ground for divorce and judicial separations.
The meaning of cruelty differs in the various personal laws
applicable depending upon the religion of the parties. There
is no specific remedy to a spouse, who does not wish to move
for a divorce or judicial separation. Further, domestic
violence in a not matrimonial situation is not recognized.
Civil remedies against domestic violence are to be found in
the Specific Relief Act and Civil Procedure Code. The basic
principle of general civil law is that an invasion of a
right or a threat of such an invasion would entitle a person
to a mandatory or prohibitive injunction as a means of
preventing the enquiry. Other Civil laws relevant to
situations of domestic violence are with respect to
maintenance and custody and guardianship of children.
The
Hindu Adoption and Maintenance Act provides for maintenance
to be provide by a Hindu husband to his wife in case of
desertion and cruelty15. The Act further lists out the
factors to be taken into consideration while determining the
amount of maintenance under the Act. In a family where
domestic violence occurs, children are the worst sufferers.
Children can claim maintenance from their father. In case
the children are minor, application can be file by a mother.
If women decide to leave her husband due to domestic
violence she is very much concerned regarding the welfare of
her children as they are worst sufferers of domestic
violence. A women will have start legal proceedings for
guardianship, if her husband is threatening to deny or has
denied access to her children or if she wishes to prevent
her husband from having access to them.
Protection under Criminal law
The incidence of domestic violence against women has been
increasing over the years. Women are subjected to violence
namely cruelty by husband or his relatives, dowry death, and
grievous hurt. The criminal law offers two options that one
is of prosecuting abusers for committing offences. If a
woman is facing violence at home, she can approach criminal
court, the abuser will be arrested. The second is a
preventive measure by getting the abuser to executive bond
for keeping the peace.
In
order to combat the increasing incidence of torture of women
by their
husbands and relatives, the legislature enacted S. 498A of
IPC and S.113A of the
Indian Evidence Act. In order to convict a person for a
crime under S. 498A of IPC,
the prosecution has to prove that the accused committed acts
of harassment or
cruelty as contemplated by the section and that the
harassment or cruelty was the
cause of suicide16. Many women have been killed by their
husbands and relatives out
of greed for more dowries. To deal with this problem, the
offence of dowry death
was included in IPC and legislature has also enacted the
Dowry Prohibition Act
1961. As the earlier law was not sufficient to check dowry
death, the legislature
introduced provisions under S 304 B in IPC. and S 113 .B in
Evidence Act. These
provisions were introduced so that the person committing
inhumane crimes on
married women could not skip liability as Evidence of direct
nature is not readily
available. Dowry deaths occur within the four walls of the
house, therefore the
concept of deemed dowry death was introduced in 1983. There
can be no direct
evidence available for the offense of dowry death, therefore
the course must rely
upon circumstantial evidence and infer from the material
available.
Domestic Violence sometimes may drive women to suicide. In
such cases, it
may be difficult to make the abuser responsible for the
death under the provision of
dowry death, but one may use the provision that provides
punishment for abetment
of suicide. If a woman has been harassed and subjected to
mental cruelty , and has
committed suicide because of this mental cruelty, the person
who harassed the woman
is liable for commitment of suicide. If a husband re marries
during the subsistence
of first marriage or if he was already married when he got
married , he would be
guilty of bigamy. Whether he is guilty or not depends on the
religion that he
belongs. Relevant provisions regarding bigamy are content
under S. 494 and 495
IPC. If husband is having a sexual relationship with other
women, he will be guilty
of offence of adultery.
Protection under Domestic Violence Act
Domestic violence is defined as an act of omission or
commission or conduct
of the respondent shall constitute domestic violence if it
harms or injures or has the
potential to harm or injure. It may be physical, mental,
sexual, emotional or economical17. The Act stipulates the
appointment of functionaries such as protection
officers and service providers to assists the complainant
woman in assisting the
court and other support services and assisting the court
during the course of
proceedings and in the enforcement of orders. The protection
officers are to be
appointed by the State government for each district by
notification in official gazette
and are required to do all duties entrusted to it under the
Act 18. The appointment
of service providers19 are based on registration. This
provides recognition and legal
protection to voluntary association such as NGOs and other
registered bodies that
work on women’s right and provide support to women facing
violence. The Act for
the first time gives recognition to the right to reside20.
For right to secured housing
for matrimonial / shared house hold 21. Whether or not she
has any title or right in
the household, there by guarding her against illegal
disposition. Apart from this, it
creates certain other civil rights i.e. some declarative
rights such as right to protection
against domestic violence and some substantive rights such
as right to maintenance,
right to compensation, right to custody of children, right
to medical expenses etc.
Keeping with objectives of the law and the rights
recognized, women is entitled to
protection orders22. Directing to stop violence , residence
orders23 as to prevent
disposition or allow for restoration in case the women has
already been thrown out,
monetary relief24 enabling the aggrieved women to meet the
expenditure incurred
due to the violence and even include maintenance,
compensation orders conferring
damages for the mental agony suffered and custody orders25
enabling the aggrieved
to have temporary custody of children so as to guard her
against any form of
harassment over the issue of custody of children .
Though
the Act is civil in nature, since it categorically states
that criminal
procedure code would apply to the proceedings26. It empowers
the existing Criminal
Judicial System to deal with the applications under the Act.
It means, the competent
court can grant relief and orders as per the Act. The
Magistrate has been confirmed
with the wide powers. To ensure that cases are disposed off
in efficacious manner, he
can secure the services welfare experts, protection
officers, service providers, police
officers for the purpose of assisting in discharging the
functions. While disposing
the case he can punish not only the respondent for
committing a breech of order
but also the protection officers for not discharging the
duty27. The jurisdiction is
also conferred on civil court and family court in certain
cases. Application for relief
may be filed by aggrieved person or a protection officer or
any other person on
behalf of the aggrieved before the Magistrate on prescribed form28. There is no
limitation prescribed for filing the application. From the
order of the Magistrate an
appeal may lie to the Court of Session within 30 days from
the date on which the
order is served on aggrieved or respondent. The Magistrate
shall give opportunity
to both parties to be heard about the application and shall
also consider the domestic
incidence report. Again, it is specifically stated that in
order to determine what
constitutes domestic violence the court shall consider the
facts and circumstances
of the case. The onus would be on the respondent to bring
material on record to
disprove the arguments of the aggrieved. Under the Act the
offender can be punished
with imprisonment of either description for a term of one
year or fine of Rs. 20,000
or both. The offenders may also be charged under S. 498 A of
IPC or Dowry
Prohibition Act 1961.
In
Bhagwan Das v. Kartar Singh29 the court held that the
suicide was due to
demand of dowry soon before death, S. 304 B of IPC can
attracted whether it is a
case of homicide or suicide. In Kailash v. Sate of M.P.30
wife died under suspicious
circumstances . Court held that even if death is not caused
by burns or bodily injury
if it happens in unusual course and apparently under
suspicious circumstances that can be brought under the
purview of S. 304 B IPC. Again in Ram Badan Sharma v.
State of Bihar31 there was persistent demand of dowry and because of not fulfilling
it, wife was subjected to harassment, humiliation and
continuous beating by husband
and in-laws. They were convicted under 304 B of IPC.
The
matrimonial home is the household a woman shares with her
husband,
whether it is rented, officially provided, or owned by her
husband or his relatives. A
woman has the right to remain in the matrimonial home along
with her husband as
long as she is married. If a woman is being pressurized to
leave her matrimonial
home, she can ask court for an injunction or restraining
order protecting her from
being thrown out. Thus, apart from the criminal remedy the
existing civil remedy is
in the form of injunction. The Act is significant in the
context because for the first
time the term domestic violence has been widened from the
culture specific restriction
on dowry deaths and penal provisions to positive civil
rights of protection and
injunction. The Act has delinked domestic violence from mere
dowry related
offences. The complexities of two separate issues, domestic
violence and women’s
right over property were sufficiently deciphered in the
present legislation. Although
the Act reflects the need for civil law it has taken a co
coordinated approach32.
IV.
Conclusion
The problem of domestic violence is as old as the
institution of family. The
worst forms of verbal, physical, psychological and sexual
violence are committed in
their homes. The denial of food, turning a woman out of
house, confining her in
house and denying access to minor children constitutes
mental torture. The other
form of torture is repeated physical violence. To check the
domestic violence, the
Protection of Women from Domestic Violence Act was passed in
2005 because the
criminal law was not enough to deal with complex issues
involved in domestic
violence .The Act recognizes the need for relief to be
granted as a basic minimum to
provide women with violence free India from which they can
negotiate their future
in the position of equality that means he nature of relief
is quick, temporary and
permanent way out to domestic violence still remains in the
realm of personal laws under which a woman would have to
decide on whether or not to continue the
relationship . Thus, the Act marks the foremost but
significant step towards
achieving a target of equality.
The
Act is criticized on the ground that it strikes at the very
root of the family
and marriage which has been in time immemorial considered
sacrosanct. Another
criticism of the Act is that it recognizes no legal
relationship by bringing within its
ambit; relationship is the nature of marriage. Here it
should be noted that such an
inclusion has been made to extend protection to women who
happen to fall in such
relationship, these sorts of relations are often seen now a
days. To them there exists
no support since all the protective provisions are available
for women who are
legally married.
There
is no doubt that given in hypocritical, patriarchal and
insensitive nature
of the society, the Act would definitely be instrumental in
putting an end to all the
degradation meted out to women. Women, who have for decades
being silent victims
of oppression, will now have a better chance of fighting the
injustice without the
slightest of hesitation. The role of judiciary as law
enforcement instrument, towards
protecting women involves the identification of rights in a
beneficial manner
wherever possible.
1. Protection of
Women Against Domestic Violence Act, 2005-Section 3.
2. Whenever one things of violence it is often
confined to physical violence which is visible but the Act
goes a step further extending its perception on other sort
of injuries being suffered by women within home which is
mental and hence considered subtle and imper ceptible.
3. Explanation II to section 3 of the Act reads “for
the purpose of determining whether any Act, omission,
commission or conduct oft he respondent constitutes domestic
violence under this section. The overall fact and
circumstances of the case shall be taken into
consideration.”
4. Sushma Sood, Violence Against Women ,1990 P.268.
5. J. Krishnamurthy , Commentaries on Living 3
Series, Edited by Dr. Raja Gopal ,1977,P.166.
6. Sushma Sood, Violence Against Women ,1990 P.227.
7. Indira Nupur Kulsherstra ,Women’s Studies in School
Education: A New Perspective(1989) P.
8. UNICEF report published in Nov 1995. titled “The
Progress of Indian States in Child Survival Health, Primary
Education”.
9. Women’s link Jan-Mar. PP- 43-44
10. (1993) 2 SCC 684
11. R.Hugman, Ageing and The Care of Older People in
Europe, 1994
12. Article 14 of the Indian Constitution
13. AIR 1997 S.C. 3011
14. AIR 1954 S.C. 321
15. Hindu Adoption and Maintenance Act ,1956 S. 18
16. State of Maharastra v. Ashok Chote Lal
Shukla(1997) II SCC 26
17. Protection of Women Against Domestic Violence Act
2005, S.3
18. Id S. 9
19. Id S. 10
20. Id. S. 17
21. Id S (5)
22. Id S 18
23. Id S. 19
24. Id S. 20
25. Id S. 21
26. Id S 28
27. Id S. 33
28. Id S 12
29. AIR 2007 SC 2045
30. AIR 2007 SC 107
31. (2006) SCC 2855
32. P.K. Dass, The Protection of Women from Domestic
Violence Act and Rules,2007 P. 5 |
