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Protection from Domestic violence

Domestic violence issue has come to spur by the recent movie “Thappad”. The same stir was made when movies like ‘Provoked’, ‘Agni Sakshi’ and ‘Suno’ were released. In another movie ‘Akashvani’, there is a dialogue by the lead actress, who was suffering from mental domestic abuse that: “It is difficult to make them (parents) understand when there are no physical marks on the body”.

So we have to understand:

  • What is considered as Domestic Violence?
  • What are the implications of domestic violence, its effects and the impact on future generations?
  • Are our laws strict enough to punish the abuser?
  • Are there any mechanisms or programs for the victims to help them in moving on with their lives?

Accordingly I have discussed the law on different headings for better understanding:

What is domestic violence ?

The definition of violence has evolved over the years to an extent it not only includes physical forms of violence but also emotional, mental, financial, and other forms of cruelty.Domestic violence Domestic violence can be described as a violent control which one person exercises over the other. It is also described as establishing control and fear in a relationship by different forms of abuse. It can range from psychological, sexual, and economical to physical torture. This issue is not just a social issue. It is also a serious human right abuse factoring the victim to health and social risks. United Nations describes it as ‘intimate partner violence’ where the behavioural pattern of one person in a relationship is to gain control of the other by use of threat, emotional abuse, manipulation, hurting, injury or economical abuse and whose victim can be anyone regardless of age, gender, race, sexual orientation, class or faith.

In cases where the abuser hits or physically tortures, it is easy to assess the violent behaviour for the victim. In the majority of the cases, the victims don’t even recognise going through domestic abuse and just take their abuser as being dominating, strict, caring too much or being possessive for the victim. Domestic violence is not only between people who are spouses or partners and it can include several relationships that a person is bound by within a family. For example in India, the legal aspect has given it a wider interpretation and it includes sisters, widows, mothers, single women or any lady living in the same household. Domestic violence includes intimate partners as well as family members. There are many forms in which domestic violence can be exercised such as controlling economic, sexual, psychological, stalking, social, physical abuse or threatening. The Domestic Abuse Intervention Project in Minnesota came up with a Power and Control Wheel which provided for abusive patterns of the perpetrators. Section 3 of the Protection of Women from Domestic Violence Act, 2005 provides that any act or omission done by the respondent which harms, injures, threatens or abuse physically, sexually, verbally or economically will commit an act of Domestic Violence.

Women are said to be more prone to such abuse than men

A WHO survey conducted in 2013 analysed almost eighty countries and it was found that one in every three women experienced domestic violence. Another report is from Home Office Research, which is a UK report on domestic violence and stalking. It stated that over eighty percent of high-frequency victims are women. The old definition and concepts of domestic abuse were limited to abuse against women and the term was widely used in the context of violence against women as they were more prone to it. It was the patriarchal setup and dominance of men in the society that compressed it to that level. It is crucial to note that even when there are examples of domestic violence against men, the majority victims are still women. This is the reason that even today various countries define the act of domestic violence in respect to women being the victim. Even in the case of same-sex marriages or same-sex partners, the situation holds.

Domestic violence against men : In modern times, the concept has become wider and has engulfed in itself the concept of violence against men as well.

Reasons that leads to domestic violence

Impunity

One of the main reasons which lead to domestic violence is the attitude of the abuser. This becomes very much prevalent in countries where there is a large gender gap and patriarchy finds itself in a deep-rooted manner. The abuser thinks of him to be exempted from the consequences of the acts that he has done. For example, he will be given immunity on the basis that he was drunk or drugged or was provoked for the same and in the end; it was the victim who should have kept calm over the situation. The abuser thinks of him in a dominant situation where his actions will not be questioned. This can happen even in a well-educated family with urban upbringing as well and has no relation to a particular country or even gender.

Desire to control

Some people are born with an attitude of dominating nature which cannot be said to be harmful as it comes under the ambit of human behaviour and natural differential nature between people. The equation becomes wrong when one extends it to an extent where the voice of another person is not at all appreciated and is controlled to the extent that it is lost. It is very crucial to keep a mark between dominating nature and a desire to control the other person. Some people show the behaviour of desiring control over their partner which in turn makes them control their every move and if they face any issue or hindrance in the same they use violence to curb it. Desiring for such control makes a person hungry for more power and control and with time the violent methods are used to satisfy it.

Lack of education

In a study by T. Lane, lack of education was one of the main factors linked with physical violence. In a survey carried out in Sivas, Turkey, it was found that 41.6% of women who expressed domestic violence had completed only primary schools. It is not a very important or strong factor as cases of domestic violence are deemed to exist in educated houses as well and that too in a very large number. The basic education is very crucial for both the abuser and the victim. It prevents the abuser from thinking of doing any such action in the future and gives an edge to know the impact of the same. For a victim, it is necessary because it helps in understanding the acts which should not be borne and the actions which can be taken if the victim has to go through such situations. Education is the very essence and solution for almost all the problems of any human nature. For a domestic violence act, it cannot be said to be a very prominent factor but there is no doubt that it is one of the factors.

Witnessing family violence as a child

This can cause major harm to both the victim and the abuser. Such a problem already existing in the family can cause a victim to think that this is how it is supposed to be and it is okay to bear such acts. On the other hand, it could inculcate in the mind of an abuser that it is justified for him to do such acts. A child goes through the most effective experiences of his/her life in childhood and it is the childhood memories that help in inculcating what a person becomes in future. Bringing up in an environment where a child already witnesses such acts is a huge blow to the future aspects. Such an unhealthy environment can bring the worst in a child and he/she may become extremely silent or extremely harsh. It is very difficult to inculcate a healthier thought afterwards and it takes a lot of effort for the same. Such psychological effects can further lead the child to indulge in drinking or taking drugs which are seen as an escape route for many.

Previous history of being abused

A previously abused person can turn into an abuser himself in the future. It is very difficult to stop the vicious cycle. Once a person has gone through such violence, it is very much possible that he/she may accept such behaviour and turn into the predator to wear out the frustration and pain they had been feeling all alone. Similarly, if a victim has a previous history of abuse, likely, she/he won’t speak out against it. In such cases, the victim, who is already in pain due to previous relations, tends to lose hope and continues to suffer without voicing it out. Therefore, past experiences become very important.

Low sense of self-worth

A person with a low sense of self-worth tends to vomit out his frustration on the victim. In such cases, the abuser, upset with his/her low self-esteem, tries to ease out his/her mind by degrading another person or insulting him/her or by abusing physically. It is the mental frustration that gets heavy on the head and it becomes impossible for some people to understand the proximity through which they should be talking or behaving towards the victim. The victim may as well build low self-esteem and feel that it is the right of the accused to abuse. The actions of the abuser may seem right to the victim in a situation where the victim goes through the phase of self-pettiness and self-loathing.

The concept of male domination

The social structure that has been created in a society plays a very important role. The patriarchal system is one of the main reasons for such human rights violations and it is one of the main reasons that more than half of the domestic violence victims do not even consider themselves as victims. The attitude of male dominance and the sense of entitlement that is provided to men creates an illusion of women as someone who is underneath them and can be treated in whichever way they like to treat them. It is one of the most crucial problems. It is because of this sense of entitlement that a man considers his full control over a woman, whether financially, emotionally, physically or sexually. Even women are accustomed to being treated like this and most of them consider it to be natural to be abused or insulted by their male partners. This sense of entitlement is not a new aspect in society and has been going on from generations thus, it becomes very difficult to erase it altogether. Men are brought up in a way which gives them a sense of superiority over women and thus they tend to treat women as their property. Due to such behaviour, the abuser thinks it is his right to treat the victim like this and the victim thinks it to be his right to treat her in an abusive manner.

Cultural aspect

Culture of a specific place determines the functioning of society as a whole and thus domestic violence tends to accelerate in those places where culturally the women are not given an equal place with men. For Example, as per WHO’s report titled ‘Changing cultural and social norms that support violence’, in Nigeria and Sudan genital mutilation is a normal traditional practice; in India and China culturally it is accepted that a man has the right to use violence to discipline female behaviour; in Pakistan, divorce is seen as a shameful act; in Jordan, it is understood that a men’s honour is linked to women’s sexual behaviour; even in the USA, violence is seen to be prevalent and is understood as a right move to resolve conflict. Thus, on a cultural basis, there are many places which do not treat women with respect and they are considered as inferior to men. It accelerates the violence against women.

Insecurity and possessiveness

It is very much possible for the abuser to be of excessive possessive nature and insecure with the relationship he/she is sharing with the victim. Such insecurity and possessiveness sometimes result in harassing the victim mentally by keeping records of everything the victim is doing. To establish control, the abuser tends to keep an eye on the victim and take all the decisions of the house in his capacity. 10. Mental illness- Insanity or mental illness is another kind of a situation where the abuser tends to be delusional and harasses the victim on the pretext of the same. Persons with schizophrenia, bipolar disorder or depression may take out their frustration through such abuse by controlling another person.

The implication of domestic violence on health

Domestic violence is the biggest health concern all around the world for the very reason of its magnitude and inefficiency in reaching every door to curb the same. There are various physical and mental health problems which are inflicted on the victims of domestic violence. The major effect on the health of the victim is mental health, which is the most prominent, due to atrocities and harm inflicted on him/her. The victim can have suicidal thoughts and that results in the victim’s action in harming herself/himself. Depression and anxiety are other problems which can be a result of domestic violence. It is found to be most prominent among other issues because, in most of the cases, the victim tends to suffer the harm by the abuser without revolting against it and thus having an emotional gap inside them which turns it into anxiety and depression. It is difficult to recognise the acts of domestic violence through these issues because a person’s mental health is tricky and it might be difficult to assess the same, majority of the time. Many of the victims also face post-traumatic stress disorder due to the violence inflicted upon them. Other issues include phobia of certain things which might contribute to the mental health degradation of the victim. Further, there can be health-harming behaviour such as the use of drugs or drinking problems or using excessive painkillers. Such acts of violence are mostly implicated on women and they are the victims in the majority of the cases. In case of women along with the mental health, there are other health risks such as unwanted pregnancy in many cases or abortion due to any injury. In the case of pregnancy, there could be a problem of poor weight gain, vaginal issues, infection, anaemia, low birth weight of the infant, malnutrition child, etc. Other than these, there are more gynaecological problems which can be associated with women. There are various sexually terminated diseases like sexually transmitted infections or HIV which can also be caused due to such harm done to the victim. Other issues include heart problems, digestive problems, trouble sleeping, physical injuries like bruises and burns, irritable bowel syndrome, headaches, memory loss, repeated unconsciousness and degrading immune system. It has been analysed and concluded in research in the United States that women who are prone to domestic violence were five times more likely to commit suicide than the other women. It has also been analysed that in the majority of cases chronic pelvic pain was associated with domestic violence history. It is not only the victim but even in abusers, the mental health deteriorates. In some cases of excessive insecurity and possessiveness, the abuser deals with mood swings and excessive emotional state which in turn affects his mental health that can result in insanity as well.

Emotional and psychological violence

Emotional abuse is the most difficult form of abuse to be diagnosed and be solved. It is due to the complexities of human behaviour that it becomes very hard to recognise the same, in some cases, even for the victims themselves. Emotional abuse creates a sense of self-doubt in the minds of the victim. The victim goes through a burden of self-loathing, guilt and worthlessness. This can lead to serious health problems as well such as depression, anxiety issues, eating disorders and heart problems. The UN Report of 2013 found that the number of women who were found to be sexually abused was indicating sexually transmitted infection and HIV, 1.5 times more than women who had not experienced domestic violence. Even the abortions were found to be twice in number in domestic violence cases. There are ways through which the abuser can inflict emotional and psychological violence on the victim-

Criticising

This is the most common method and is used in most households. The abuser criticises the victim and tries to look down on him/her. The abuser tries to humiliate and insult the victim, even in the presence of other people. They try to intimidate the victim and neglect their feelings. Sarcasm and public embarrassment are other tools used to let down the self-confidence of the victim. It is a tricky method and it may confuse the victim sometimes who have even full knowledge about the emotional abuses. These characteristics may be a part of one’s character and behaviour but it has to be noticed whether these patterns are more than normal. People tend to ignore the same for the sake of good or at least that’s what they think because they are taught like this. A very crucial example is from the movie ‘Thappad’ where the character Advocate Netra Jaisingh very aptly captured the same emotional abuse where her husband belittles her in everything and tries to insult her and discredit her for her success. It is very important to realise that such a scenario is very common in many countries and households where such things are not talked about and people refrain from taking any action against it because it seems to be too little a problem in front of physical violence. In South Asian and African countries, this happens to be a very minute problem and not even a problem for many.

Neglecting

Neglecting and isolating is another way of disturbing the mental peace of the victim. The abuser shows lack of affection and attention towards the victim and derives the victim into thinking that it is his/her fault. The abuser tries to show his controlling side and feels good to be the one directing the behaviour of the victim through his silence.

Acting superior

The attitude of controlling the victim is one of the main aspects of domestic violence. The abuser tries to control the actions of the victim and this can be done in various ways, whether it is financial control, decision making of the house or even controlling the movement of the victim. Such a superiority complex leads the abuser to go to extends where he/she can threaten the victim, order or even monitor by various means. This becomes suffocating for the victim and creates a scenario of self-doubting and sense of being watched on 24/7. In some cases, the abuser may use other people as well to discredit the opinion of the victim.

Accusing

Blaming the victim for everything is one of the major tools used to abuse. In such situations, the abuser can demand unrealistic expectations and then if not done, blames it on the victim deciphering his/her unworthiness. The abuser uses guilt and weak emotional points of the victim and makes him/her think that it is his/her fault. In many cases, the abuser can show the behaviour of destroying the materials near him and not inflicting a physical injury to the victim but creating an environment of control and abusiveness.

Emotional blackmail

This is the most prevalent form of emotional abuse. The abuser tries to put his emotional behaviour ahead of the victim’s and belittle him/her by accusing them of not being able to take care of the abuser’s emotion. It is very difficult to recognise and escape from such sort of emotional abuse because it creates a boundary even for the most educated and aware person to think about the mental health of their partner or another close person. The person can use other ways as well such as keeping the victim from socialising with other people, bashing with comments like too needy or too emotional or sensitive.

Gaslighting

It is a concept which means that the person manipulates another person emotionally and psychologically to the extent that the person starts doubting his/her sanity. This kind of situation happens when a person creates various conditions to doubt the sanity of the victim and keep the victim aloof from other people who could be a positive environment in such an event. It is a very slow process and the abuser tries to make situations to make the victim self-doubt one-self. Through this, the abuser tries to control the mentality and the actions of the victim.

Co-dependency

It is a very dangerous situation, where the victims feel unable to walk out of such relationships thinking it as a need for them as well. This happens when the victim starts giving attention to their partner’s wishes rather than their own and starts neglecting their instincts for the sake of their partner. Some people realise the wrongs that are being done to them but fear the alternatives that lie ahead of them and do not dare to start a new life. Such victims do not make contact with their parents or friends and depend on their partner in every way. It has also been found that in many cases the victim feels the emotion of self worthlessness and thus blames oneself for every mistake that may happen in the house. Due to such conditions, the relation of abuser and victim becomes a never-ending cycle which is very difficult to break after a point of time.

Impact on children

Domestic violence has a very lasting effect on children and it gives rise to child abuse as well. WHO report of ‘World Report on Violence and Health’ stated that among the child abuse cases, 40% of the cases were with a background of domestic violence. Children facing domestic violence at home are more prone to child abuse and it differs for children of different age group as well. A child of four years will react differently to the issue than a fourteen-year-old. There are three basic impacts which a child can face if brought up in a home of domestic violence-

Physical Impact

There can be a physical impact on a child which may be caused due to physical beating or sexually abusing. Physical pain is the pain which remains for a long time and it can affect a child in many ways. Physical damage can be done to an unborn as well. If a woman is tortured during the pregnancy period, it is very much possible that even the child is affected by it. Such a child can be born malnutrition or premature or with low weight. Such a baby can have mental problems in future. For younger children not going to school, the physical pain may inflict bruises at an early age and may weaken the appetite and growth of a child. For a teenager, the anger nature can become an issue and the teenager may seem to retaliate any physical beating by using violence.

Behavioural impact

A child may be affected severely on a behavioural level. A young child may suffer from numbness and being not talkative, bedwetting, crying a lot more than usual, thumb sucking or hiding in some space. Such acts can cause severe headaches to children and may result in irritating behaviour. Teenagers are the most affected by such violence and they tend to show either very aggressive or numb behaviour. They develop a sense of violence as they have been watching at home and try to frustrate out by fighting with people. It is difficult for such children to make friends with anyone. They also seem to have poor concentration and share no emotions. Such children may end up having unprotected sexual relations or drinking or drugging problems and may have a pessimistic approach towards the future.

Emotional impact

In cases of domestic violence, mental health is the one which is most affected, even for a child. A young child may face anxiety, sadness, loneliness and feel guilty for the violence that takes place before his/her own eyes. Terror and fear are common aspects which engulf a child stuck in a home with domestic violence. For teenagers, it is their most crucial point of life, age wise, and when inflicted with harm in a family, they tend to show anger, grief, sadness, numbness or exaggerated talk, etc. The child may suffer from depression, anxiety and may inflict suicidal thoughts. It becomes easier for such children to be close to other people than their family and they try to find comfort outside their homes. Furthermore, this cycle may continue for the next generation as well. A boy might find it easier to take out his frustration on his partner and a girl child may find it right to bear such pain that is being inflicted upon her. It is also very possible that such children suffer from Post Traumatic Stress Disorder. Children may also step up in bullying others or become a target themselves. Insomnia, self-harm and low self-confidence are other impacts on the children.

The social and economic effect

Domestic Violence is social abuse. It is not a story of just one house but many and society as a whole need to address the same. The crime of domestic violence affects society as a whole and determines the ability and well being of future generations as well. Thus, it becomes important that it is seen as a social approach to help such homes. Domestic Violence has a long-lasting effect on the victim and it can result in their isolation from the society as a whole. The children that grow in such an environment either become numb or show angered behaviour which is not healthy for any society. Such women tend to keep a distance from society by making a bubble around them which makes them unaware and they divulge deep into isolation which again results in mental health problems.

Victims also suffer from economic loss. For physical pains, the medical costs are always on their head and for a repetitive offence, the bills can be a huge amount. Furthermore, in many cases, the victim is forced to leave the job and sit at home which creates economic insecurity, poor credit and makes them dependent on the abuser for money. This may disrupt their ability to work in future as well.

Laws in India Against Domestic Violence

India also has a special law for protecting women against domestic violence. It is The Prevention of Women Against Domestic Violence Act, 2005. The Act covers women living in live-in-relationships as well and provide a remedy for any physical, mental, financial or sexual violence. The Act provides for various rights that a woman has even after she wants to be separated from the family on grounds of domestic abuse.

Section 498 A of the Indian Penal Code criminalises any act of harassing the lady in the house, either physically or mentally, for dowry. This penal provision covers almost every aspect of mental or physical health in case of domestic violence. The term domestic violence includes acts which harm or endangers the health, safety, life, limb, or wellbeing (mental or physical) of the victim, or tends to do so, and includes causing: physical abuse, sexual abuse, verbal abuse, emotional abuse, and economic abuse, perpetrated by any person who is or was in a domestic relationship with the victim.

Before the enactment of the Protection of Women from Domestic Violence Act, 2005 (“DV Act”), the victim could approach the court under Section 498-A of the Penal Code, 1860 which provides for ‘husband or relative of husband of a woman subjecting her to cruelty’ wherein only a certain set of offence dealing with cruelty to married women was the only recourse. 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.

Protection of Women from Domestic Violence Act, 2005

The objective of the Act lays down as follows:

An Act to provide for more effective protection of the rights of women guaranteed under the Constitution who are victims of violence of any kind occurring within the family and for matters connected therewith or incidental thereto.”

To minimize the cumbersome position of law, be it procedural or substantive, the Protection of Women from Domestic Violence Act, 2005 was enacted to protect the women from acts of domestic violence.

  1. The legislative intent was further emphasized by the Supreme Court of India in the case of Indra Sarma v. V.K.V Sarma, (2013) 15 SCC 755. It is stated that the DV Act is enacted to provide a remedy in civil law for the protection of women, from being victims of such relationship, and to prevent the occurrence of domestic violence in the society.
  2. The Madras High Court in Vandhana v. T. Srikanth, 2007 SCC Online Mad 553 in one of the early cases since the enactment of the DV Act, observed that the Act was formulated to implement Recommendation No. 12 of United Nations Committee on Convention on Elimination of All Forms of Discrimination Against Women (CEDAW), 1989 and which was ratified by India in June, 1993. Interpretation of the DV Act should conform to international conventions and international instruments and norms.
  3. The Bombay High Court in the case of Ishpal Singh Kahai v. Ramanjeet Kahai, 2011 SCC Online Bom 412 reiterated that the object of the DV Act is to grant statutory protection to victims of violence in the domestic sector who had no proprietary rights. The Act provides for security and protection of a wife irrespective of her proprietary rights in her residence. It aims at protecting the wife against violence and at the prevention of recurrence of acts of violence.

Key Definitions under the Domestic Violence Act

Aggrieved Person

Section 2(a)-An “aggreived person” means any woman who is, or has been, in a domestic relationship with the respondent and who alleges to have been subjected to any act of domestic violence by the respondent. Any woman who is or has been in a domestic relationship is entitled to make a complaint invoking provisions of the Act. The amount or period of time lived together by the petitioner and respondent is not necessary in terms of that the petitioner and respondent should live or have lived together for a particular period of time. Hence, application by lady, for maintenance, from a man with whom she shared a close relationship is maintainable, M. Palani v. Meenakshi1). The Supreme Court had observed in one of the cases that judicial separation does not change the status of the wife as an “aggrieved person” under Section 2(a) read with Section 12 and does not end the “domestic relationship” under Section 2(f). It stated that judicial separation is mere suspension of husband-wife relationship and not a complete severance of relationship as happens in divorce, Krishna Bhattacharjee v. Sarathi Choudhury.2)

Domestic Relationship

Section 2(f) “domestic relationship” means a relationship between two persons living in a shared household. Domestic relationship can be through marriage such as wives, daughters-in-law, sisters-in-law, widows and any other members of the family; or blood relationship such as mothers, sisters or daughters; and other domestic relationships including through adoption, live-in relationships, and women in bigamous relationship or victims of legally invalid marriages. The law addresses the concerns of women of all ages irrespective of their marital status. The definition of “domestic relationship” under the DV Act is exhaustive: when a definition clause is defined to “mean” such and such, the definition is prima facie restrictive and exhaustive, Indra Sarmav. V.K.V Sarma3). The Supreme Court further stated that the word domestic relationship means a relationship that has some inherent or essential characteristics of marriage though not a marriage that is legally recognized. Expression “relationship in the nature of marriage” cannot be construed in the abstract. It is to be taken in the context in which it appears and to be applied bearing in mind the purpose and object of DV Act as well as meaning of the expression “in the nature of marriage”, Indra Sarma v. V.K.V Sarma.

Respondent

The expression “respondent” is defined in S.2(q) in following words:
“(q) “respondent” means any adult male person who is, or has been, in a domestic relationship with the aggrieved person and against whom the aggrieved person has sought any relief under this Act: Provided that an aggrieved wife or female living in a relationship in the nature of a marriage may also file a complaint against a relative of the husband or the male partner;”

The words “adult male” as occurring in S.2(q) has been struck down by the Supreme Court in Hiral P. Harsora and Others v. Kusum Narottamdas Harsora and Others.4) Consequently, the respondent can also be a female in domestic relationship with the aggrieved person. The next definition, which is relevant to be noticed is S.2(s), which defines shared household.

Shared Household

Section 2(s)- A shared household is where the aggrieved person or a woman lives in a domestic relationship, either singly, or along with the man against whom the complaint is filed. It may also imply a household where a woman has lived in a domestic relationship but has been thrown out. This may include all kinds of situations whether the household is owned by the respondent or it is rented accommodation. It also includes a house either owned jointly by the aggrieved person and the respondent or both may have jointly or singly, any rights, titles or interests. The DV Act recognizes a woman’s right to reside in a shared household. This means a woman cannot be thrown out of such a household except through the procedure established by the law. In case she is thrown out she can be brought back again after obtaining the order from the court. A woman to claim the protection of right in “shared household” has to establish

  1. that the relationship with the opposite party is “domestic relationship”, and
  2. that the house in respect of which she seeks to enforce the right is “shared household”.

In Indian society, there are many situations in which a woman may not enter into her matrimonial home immediately after marriage. A woman might not live at the time of the institution of proceedings or might have lived together with the husband even for a single day in “shared household” should not be left remediless despite valid marriage. Narrow interpretation of “domestic relationship” and “shared household” would leave many a woman in distress without remedy. Hence the correct interpretation of aforesaid definition including the right to live in “shared household” would be that words “live” or “have at any point of time lived” would include within its purview “the right to live”, Vandhana v. T. Srikanth5). This law does not alter the legality of ownership or transfer the ownership and a woman cannot claim that she owns a house; it only provides emergency relief to the victim in the sense that she cannot be thrown out of her house. For claiming ownership, a woman has to follow a separate legal procedure and has to file a separate application as per the provisions of laws whichever are applicable to her situation.

Domestic Violence

“Domestic violence” is a broad term that entails not only physical beating but also other forms of violence such as emotional violence, mental violence, sexual violence, financial violence and other forms of cruelty that may occur within a household. The definition provided in Section 3 of the DV Act includes the following as acts of domestic violence:

“Any act, omission or commission or conduct of the respondent shall constitute domestic violence in case it
(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; or
(b) harasses, harms, injures or endangers the aggrieved person with a view to coerce her or any other person related to her to meet any unlawful demand for any dowry or other property or valuable security; or
(c) has the effect of threatening the aggrieved person or any person related to her by any conduct mentioned in clause (a) or clause (b); or
(d) otherwise injures or causes harm, whether physical or mental, to the aggrieved person.”

The Section also defines the meaning of terms physical abuse, sexual abuse, verbal and emotional abuse, and economic abuse. It further enunciates that the overall facts and circumstances of the case shall be taken into consideration in order to determine whether any act, omission, commission or conduct of the respondent constitutes “domestic violence” under the said section.

Aggrieved person

According to the provisions of this Act, any aggrieved woman who is in a domestic relationship with the respondent and who alleges to have been subjected to the act of domestic violence by the respondent can seek help. A woman can file a complaint against any adult male perpetrator who commits an act of violence. She can also file a complaint against any male or female relatives of the husband/ male partner (for example in a live-in relationship) who has perpetrated violence. The Supreme Court in Hiral P. Harsora v. Kusum Narottamdas Harsora6) struck down adult male from the definition of “respondent” stating that it is not based on any intelligible differentia having rational nexus with object sought to be achieved. The Supreme Court also explained in the said case that the categories of persons against whom remedies under the DV Act are available include women and non-adults. Expression “respondent” in Section 2(q) or persons who can be treated as perpetrators of violence against women/against whom remedies under the DV Act are actionable cannot be restricted to expression “adult male person” in Section 2(q). Remedies under the DV Act are available even against a female member and also against non-adults.

Protection Officer

Under Section 8 of the DV Act, the Protection Officer is appointed by the State Government as per the provisions of the law. The Protection Officer acts as a facilitator between the aggrieved woman and the court. The Protection Officer aids the aggrieved woman in filing of complaints, and application before the Magistrate to obtain the necessary relief and also assists to obtain medical aid, legal aid, counselling, safe shelter and other required assistance. Section 9 of the DV Act lays down the duties of the Protection Officer as follows:

“(a) to assist the Magistrate in the discharge of his functions under this Act;
(b) to make a domestic incident report to the Magistrate, in such form and in such manner as may be prescribed, upon receipt of a complaint of domestic violence and forward copies thereof to the police officer in charge of the police station within the local limits of whose jurisdiction domestic violence is alleged to have been committed and to the service providers in that area;
(c) to make an application in such form and in such manner as may be prescribed to the Magistrate, if the aggrieved person so desires, claiming relief for issuance of a protection order;
(d) to ensure that the aggrieved person is provided legal aid under the Legal Services Authorities Act, 1987 and make available free of cost the prescribed form in which a complaint is to be made;
(e) to maintain a list of all service providers providing legal aid or counselling, shelter homes and medical facilities in a local area within the jurisdiction of the Magistrate;
(f) to make available a safe shelter home, if the aggrieved person so requires and forward a copy of his report of having lodged the aggrieved person in a shelter home to the police station and the Magistrate having jurisdiction in the area where the shelter home is situated;
(g) to get the aggrieved person medically examined, if she has sustained bodily injuries and forward a copy of the medical report to the police station and the Magistrate having jurisdiction in the area where the domestic violence is alleged to have been taken place;
(h) to ensure that the order for monetary relief under Section 20 is complied with and executed, in accordance with the procedure prescribed under the Code of Criminal Procedure, 1973 (2 of 1974);
(i) to perform such other duties as may be prescribed.”

Service Providers

A victim of domestic violence may require various services such as shelter home or safe accommodation, medical aid, child care, legal aid services and other community services. According to Section 10(1) of DV Act, the Service Providers are the NGOs, Companies or voluntary organizations working in the field of domestic violence and are registered under the laws of the State. Service Providers are duty bound to provide assistance and support to women facing domestic violence. A woman can go to a registered Service Provider to make a complaint under the DV Act. The duty of the service provider, as provided under Section 6 of the DV Act, upon receipt of request should be to provide shelter to the aggrieved person in the shelter home.

Filing a Complaint of Domestic Violence

An aggrieved woman, in order to file a complaint for domestic violence may:

  1. Approach the police station and register the complaint, or
  2. File a complaint to a Protection Officer or Service Provider, or
  3. Directly approach the Magistrate.

The duties of the police officers, Protection officer, Service Provider, or the Magistrate is laid down under Section 5 of the Act. It states that, upon receipt of complaint they shall inform the aggrieved person—

“(a) of her right to make an application for obtaining a relief by way of a protection order, an order for monetary relief, a custody order, a residence order, a compensation order or more than one such order under this Act;
(b) of the availability of services of service providers;
(c) of the availability of services of the Protection Officers;
(d) of her right to free legal services under the Legal Services Authorities Act, 1987 ;
(e) of her right to file a complaint under Section 498-A of the Indian Penal Code , wherever relevant”

The Supreme Court emphasised that the Police has to look into the complaint made under the DV Act seriously and it cannot submit a report that no case is made out without proper verification, investigation, enquiry not only from members of family but also from neighbours, friends and others, Santosh Bakshi v. State of Punjab7)

Court to decide the case

Section 27 of the DV Act provides that a first class magistrate or metropolitan court shall be the competent court to grant a protection order and other orders under the DV Act and to try offences under the Act within the local limits of which
(a) the person aggrieved permanently or temporarily resides or carries on business or is employed; or
(b) the respondent resides or carries on business or is employed; or
(c) the cause of action has arisen.

In a recent decision, the Supreme Court held that petition under DV Act can be filed in a court where “person aggrieved” permanently or temporarily resides or carries on business or is employed, Shyamlal Devda v. Parimala8)

Reliefs available under the Domestic Violence Act

The remedies available under the DV Act as provided from Section 18 to 23 for the aggrieved person are as follows:

Protection orders (Section 18)

The Magistrate after giving the aggrieved person and the respondent an opportunity of being heard and if satisfied that domestic violence has taken place or is likely to take place may pass a protection order and prohibit the respondent from

(a) committing any act of domestic violence;
(b) aiding or abetting in the commission of acts of domestic violence;
(c) entering the place of employment of the aggrieved person or, if the person aggrieved is a child, its school or any other place frequented by the aggrieved person;
(d) attempting to communicate in any form, whatsoever, with the aggrieved person, including personal, oral or written or electronic or telephonic contact;
(e) alienating any assets, operating bank lockers or bank accounts used or held or enjoyed by both the parties, jointly by the aggrieved person and the respondent or singly by the respondent, including her stridhan or any other property held either jointly by the parties or separately by them without the leave of the Magistrate;
(f) causing violence to the dependants, other relatives or any person who give the aggrieved person assistance from domestic violence;
(g) committing any other act as specified in the protection order.

Residence Order (Section 19)

The Magistrate may pass a residence order

(a) restraining the respondent from dispossessing or in any other manner disturbing the possession of the aggrieved person from the shared household, whether or not the respondent has a legal or equitable interest in the shared household;
(b) directing the respondent to remove himself from the shared household;
(c) restraining the respondent or any of his relatives from entering any portion of the shared household in which the aggrieved person resides;
(d) restraining the respondent from alienating or disposing off the shared household or encumbering the same;
(e) restraining the respondent from renouncing his rights in the shared household except with the leave of the Magistrate; or
(f) directing the respondent to secure same level of alternate accommodation for the aggrieved person as enjoyed by her in the shared household or to pay rent for the same, if the circumstances so require.

The proviso clause for the section states that no order shall be passed under clause (b) against any person who is a woman.

The High Court of Madras opined that the Act contemplates two types of reliefs viz.

  1. right to reside in shared household; and
  2. right to seek residence orders under Section 19 of the Act.

Section 19(1) of the Act empowers Magistrate to pass variety of residence order. Shared household would come into picture only when relief is sought in terms of Sections 19(1)(a) to (e) of the Act. Aggrieved woman can seek orders to enable her to continue to reside in shared household or protection order to enable her to reside in shared household, then property, which is subject-matter, should be shared household. Aggrieved woman can seek relief of alternate accommodation in terms of Section 19(1)(f) of the Act and in such case concept of shared household would not be attracted. Expression “shared household” occurring in Section 19(1)(f) of the Act is just for purpose of enabling aggrieved woman to seek alternative accommodation, which would be on par with shared household that she enjoyed at some point of time, M. Muruganandam v. M. Megala9)

Embargo under S.17(2) of not to be evicted or excluded save in accordance with procedure established by law operates only against “respondent”, i.e., one who is respondent within the meaning of S.2(q). In case, the shared household of a woman is a tenanted / allotted / licensed accommodation where tenancy / allotment / license is in the name of husband, father - in - law or any other relative, the Act, 2005 does not operate against the landlord / lessor / licensor in initiating an appropriate proceedings for eviction of the tenant / licensee qua the shared household. However, in case the proceedings are due to any collusion between the two, the woman, who is living in the shared household has right to resist the proceedings on all grounds which the tenant / lessee / licensee could have taken in the proceedings. The embargo under S.17(2) of Act, 2005 of not to be evicted or excluded save in accordance with the procedure established by law operates only against the “respondent”, i.e., one who is respondent within the meaning of S.2(q) of Act, 2005.10)

Monetary Relief (Section 20)

Under Section 20 of DV Act, an order for monetary relief can be passed by the court in case a woman has incurred expenditure as a result of violence. This may include expenses incurred by a woman on obtaining medical treatment, any loss of earnings, damage to property, etc. The aggrieved person can also claim for maintenance from her male partner.

The Magistrate may direct the respondent to pay monetary relief to meet the expenses incurred and losses suffered by the aggrieved person and any child of the aggrieved person as a result of the domestic violence and such relief may include, but is not limited to,—
(a) the loss of earnings;
(b) the medical expenses;
(c) the loss caused due to the destruction, damage or removal of any property from the control of the aggrieved person; and
(d) the maintenance for the aggrieved person as well as her children, if any, including an order under or in addition to an order of maintenance under Section 125 of the Code of Criminal Procedure, 1973 or any other law for the time being in force.

It has also been provided in the section that the monetary relief provided should be adequate, fair and reasonable and consistent with the standard of living to which the aggrieved person is accustomed. In case there is a failure in part of the respondent to make payment in terms of the monetary order, the Magistrate may direct the employer or a debtor of the respondent, to directly pay to the aggrieved person or to deposit with the court a portion of the wages or salaries or debt due to or accrued to the credit of the respondent, which amount may be adjusted towards the monetary relief payable by the respondent.

Custody Orders (Section 21)

The Magistrate may grant temporary custody of the children to the aggrieved woman or any person making an application on her behalf. This is to prevent a woman from being separated from her children, which itself is an abusive situation. Section 21 also states that the Magistrate may, at any stage of hearing of the application for protection order or for any other relief under this Act grant temporary custody of any child or children to the aggrieved person or the person making an application on her behalf and specify, if necessary, the arrangements for visit of such child or children by the respondent. However, the Magistrate may refuse such visit to such child or children, if it feels that any visit to the child or children by the respondent may be harmful.

Compensation Orders (Section 22)

The Magistrate may on an application being made by the aggrieved person, pass an order directing the respondent to pay compensation and damages for the injuries, including mental torture and emotional distress, caused by the acts of domestic violence committed by that respondent.

Magistrate’s power to grant interim and ex parte orders (Section 23)

Section 23 gives power to the Magistrate to pass such interim order as he deems just and proper and also if the Magistrate is satisfied that an application prima facie discloses that the respondent is committing, or has committed an act of domestic violence or that there is a likelihood that the respondent may commit an act of domestic violence, he may grant an ex parte order on the basis of the affidavit in such form, as may be prescribed, of the aggrieved person under Section 18, Section 19, Section 20, Section 21 or, as the case may be, Section 22 against the respondent.

In the case of Sandhya Wankhade v. Manoj Bhimrao Wankhade, the issue in question was of the definition of ‘respondent’ as provided under Section 2 (q) of the Domestic Violence Act of 2005 as the definition provides expressly males as respondents. The Court interpreted the proviso provided under the section and held that female relatives of the husband are also included under the ambit of respondents. In another case of D. Veluswamy v. D. Patchaiammal, under Section 2 (a) of the Domestic Violence Act, 2005, the scope of ‘aggrieved person’ was widened. The Court enumerated five ingredients for a live-in-relationship and provided that the same provisions of domestic violence will be applied to live-in-relationship as applied in marriage or other domestic relations.

Prevention of domestic violence and response

Economic opportunity

Economic stability is very crucial in any person’s life and thus even for a woman, it is a crucial aspect. In countries where shelter homes are not adequate or where laws are not implemented in a strict sense, it should be tried to provide jobs and economic opportunities to women so that they can stand on their own feet and realise the importance of their own identity. It is crucial for the prevention of such cases. In response to the offence that has already been committed, the economic opportunity should be provided to a woman so that she can start a new life with economic stability. Many shelter homes and NGOs and even government programs are constituted in various countries to achieve this goal.

Mentor

Mentoring is an important tool, both used for prevention as well as response. It is crucial to make children understand from teenage the complexities, laws and harms of domestic violence and this mentoring becomes very necessary for future purposes. In response to an offence done, the victim should be made comfortable and strong by mentoring. Emotional strength is very much needed when a person comes out of such relationships and it is also important to fill the victim’s hopes with a positive attitude.

Organised community program

Community programs are very efficient as they are particular programs for this specific purpose only and thus it is easy to target the victims and help them. These community programs also help in providing jobs and shelter to the victims who have nowhere to go after leaving the house. These community programs are also very crucial as they can have the data of all the victims as well as the abuser and thus it helps in statistics as well.

Family support

It is very important to have family support in such cases. The victim should have confidence in her family and should be able to cry out things in front of them. This brings to another aspect of family upbringing where the family should make sure that the child is aware of the types of abuses and the remedy of the same. Even after the crimes have been done, family support becomes very important.

Legislation removing gender inequality

Providing equal opportunities to women in place of jobs and other fields like sports will further enhance the empowerment of women and will help in standing up for herself so that she will not feel self-unworthiness. And not just for women, even for men there must be equal opportunities. However, in some countries like India and China, there are more atrocities towards women and thus special provisions are provided in the legislation for them.

Providing gender equality education

Sex education and gender equality issue are very necessary to inculcate in students and not just in a part of a book to read and learn but through extracurricular activities and seminars so that the students have a clear and deep knowledge of the type of behaviour that they are supposed to be showing. This may help children in whose homes such offences take place, as they may realise it on other platforms that such activities are harmful, and thus the vicious cycle of the passing of abusive behaviour from generation to generation can be broken down.

Awareness

Awareness should be spread about the issue through different means of media and communication and the health sector should be strengthened to combat and provide for more suitable medical assurances to the victims.

Conclusion

The major objective is law to protect the women against domestic violence. The law provides civil remedies to the victims of domestic violence. Before enactment of this law, in order to seek any civil remedies such as divorce, custody of children, injunctions in any form or maintenance, a woman only had the option of taking recourse to the civil courts. The DV Act has brought about the required and necessary change in the system. The Act provides exhaustive remedies to counter the issue of domestic violence. The Act falls short in providing any relief to the male members in the community who are subjected to domestic violence. Analysing the various factors involved in domestic violence, it can be concluded that the major and deep-rooted problem of this issue is the mentality and attitude of superiority in major cases. The main reason why women are more prone to such crimes than men is the patriarchal set-up. It has been there for centuries. It is still prevalent. Of course, with advancing times there are slight changes in this aspect and abuses against men can also be seen. This applies to same-sex marriages or partners as well. Therefore, it is important to inculcate the knowledge of laws and the attitude issues in the children from the beginning. There is a need to make awareness in society about the laws about domestic abuse and to make stringent steps so that the law is implemented properly. In the event of such crimes, proper compensations, facilities and training programs should be made available to help the victim in the future. No crime can be abolished from the society completely. It is only with stringent reforms and mechanism, it can be curbed.

About the Author

© C.R Nanda Academy is an initiative by Adv. Chittaranjan Nanda to spread legal awareness among Indian Citizens.

1)
2008 SCC Online Mad 150
2)
2016 2 SCC 705
3)
2013 15 SCC 755
4)
2016 (5) KHC 15
5)
2007 SCC Online Mad 553
6)
2016 10 SCC 165
7)
2014 13 SCC 25
8)
2020 3 SCC 14
9)
2010 SCC Online Mad 6012
10)
Satish Chander Ahuja v. Sneha Ahuja : AIR 2020 SC 5397


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