Domestic violence is one of the gravest gender-specific human rights - Violence Act 2005

  

Women are the only exploited group in history to have been idealized into powerless’

- Karl Marx

Domestic violence is one of the gravest gender-specific human rights violations.[1] The idea of domestic violence has been ingrained in the society to a dangerous extent that in many parts of the country young girls are taught that abuse is a love-language too. Consequently, even highly educated women end up being victims of domestic violence without them realizing it. Restricting a woman from working outside the family is often perceived as the husband’s love and care by many. By doing so, women are forced to be financially depended. Sometimes, the income earned by the women is taken away by the husband and in-laws leaving nothing for her. Domestic violence has many facets and this is just one of them. Ubiquity of domestic violence was highlighted prominently during the Covid-19 lockdown[2]. Stay home to stay safe hasn’t been the case for many women across the country as many were trapped with their abusers in the same household. According to the data presented by National Commission for Women, the domestic violence complaints doubled after the nationwide lockdown.[3] Below is a comprehensive composition entailing the concept of domestic violence, its types, reasons as well as cure for domestic violence.

What is domestic violence?

The United Nations Declaration on the Elimination of Violence against women defined domestic violence as “physical, sexual and psychological violence occurring in the family, including battering, sexual abuse of female children in the household, dowry related violence, marital rape, female genital mutilation and other traditional practices harmful to women, non-spousal violence and violence related to exploitation.”

According to Section 3 of the Protection of Women from Domestic Violence Act, 2005, Domestic Violence is ‘any act, omission or commission or conduct of the respondent that 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 to and includes anything causing physical abuse, sexual abuse, verbal abuse and economic abuse. Further, any act which 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.

As apparent from the definition, domestic violence can take any one of the following forms:

• Physical abuse: Acts which, by its nature cause bodily injuries or impairs the health or development of a person amounts to physical abuse. It includes acts like punching, hitting, hair-pulling, use of weapons, causing miscarriage without women’s consent,
• Sexual abuse: Any act of sexual nature which results in humiliation, degradation or violation of dignity of woman amounts to sexual abuse. It is regarded as one of the invisible forms of domestic violence. Usually, it can be in the form of marital rape or incest. Marital rape is not an offence in India. However, a husband forcing himself upon the wife amounts to cruelty and comes under the purview of violence against women.
• Verbal abuse includes insults, humiliation, name calling, ridicule especially with regard to not having a child or male child as well as repeated threats to cause physical pain to any person close to the aggrieved person.
• Psychological and Emotional Abuse: Acts which leave a deep negative impact on the victim’s psyche.
• Economic abuse consists of exclusion of women from all financial decision-making, unequal pay and denial of property rights.[4]  As per the law, it is the

• deprivation of all or any economic or financial resources to which the aggrieved person is entitled to.
• disposing or alienating assets, shares, bonds etc. in which the aggrieved person has an interest in. The interest can be by virtue of the domestic relationship, or which is required by the aggrieved person or her children or her stridhan or any other property jointly or separately held by the aggrieved person.
• Prohibition or restriction to access to resources or facilities which the aggrieved person is entitled to use or enjoy by virtue of the domestic relationship. It includes access to the shared household.[5]

CAUSES OF DOMESTIC VIOLENCE

Domestic violence against women occurs due to one or more of the following factors: 1) Dowry 2) Incapable of procreation 3) incapable of procreating a male progeny 4) behavioral issues 5) Patriarchal society. Dowry by and large remains one of the biggest driving factors for domestic violence cases. The Dowry Prohibition Act came to existence in 1961. However, given the rising number of dowry related deaths, the legislation has proven to be a paper tiger. Second is the incapacity of a woman to procreate. From ancient times, the ultimate pious objective of a woman’s life is to create a new life, i.e., procreation. Those women who are incapable of procreation are shunned by the society & often called the cursed one. In the 21^st century, things may seem to have improved. However, majority of the communities still frowns upon childless women. The pressure from the society mounts up resulting in psychological and emotional abuse. However, in some cases, the cause of violence can be extremely irrational such as not being able to procreate a male child. This is the third cause. India’s obsession with male child continues even today. It is evident from the numbers of female feticide and female infanticide. Fourthly, behavioral issues of the husband, or the in-laws such as temper, alcohol addiction, etc. Finally, and perhaps the most important factor, is the patriarchal society. The idea of men being superior to women has existed from time immemorial. This is what we are still fighting today. Women were often treated as a means of pleasure for men and not as individuals with dignity. The patriarchy is so deep-rooted that despite crossing 70 years of Independence, we still haven’t been able to fulfill basic fundamental rights of women.

CURE OF DOMESTIC VIOLENCE

Protection of Women from Domestic Violence, 2005 is a landmark legislation that vindicates the violation of women’s right to life and liberty. The law is in compliance with international obligations under the Convention against Elimination of all forms of Discrimination against Women (CEDAW). Prior to this, domestic violence was mainly addressed by the Anti-Dowry Statute only. The acts of violence against women have been treated as an offence under Section 489A of the Indian Penal Code, since the second amendment in 1983.[6]

Protection of Women from Domestic Violence Act, 2005 is applicable to all married women, unmarried women living with their parents. It did not have a retrospective application. However, in Lt. Col. VD Bhanot v. Savitha Bhanot[7], the court held that the legislation can be applied retrospectively. The Act confers certain duties upon shelter homes and medical facilities such as the duty to provide shelter and medical aid to the aggrieved person upon her request or on request on her behalf. Some actively functioning resource centers for domestic violence survivors in India include National Commission for Women, Guria India, The Pranjya Trust, Action Aid India, and Snehalaya. It also laid down the duties of the central and every state government to ensure protection of women. Such duties consist of giving wide publicity through public media, creating awareness and sensitization among government employees like police officers, judicial members etc., proper coordination between services provided by concerned ministries and departments dealing with law and order, health and human affairs etc.[8]

The Domestic Violence Act is applicable only when a domestic violence exists.[9] In Adil v. State[10], the court stated that reliefs can be provided only when a domestic relationship exists Similarly, in Manmohan Attavar v. Neelam Manmohan Attavar,[11] the apex court held that in order to obtain a remedy u/s. 17 and 19 of the DV Act, it is necessary that two parties had lived in a domestic relationship. In D.Velusamy,[12] it was held that the definition of Domestic relationship in Section 2(f) of the Act includes not only marriage by also a relationship in the nature of marriage. Frequency of the act of violence is irrelevant. Even if the act was committed, say once in 5 years, it would still be counted as domestic violence. An instance from the Hindi Movie Thappad, wherein the wife was slapped just once. The wife sought divorce on grounds of domestic violence and was allowed. In Kamlesh Devi v. Jaipal (2019), court said that a mere allegation of domestic violence is not enough to bring a case under the purview of the Domestic Violence Act. In Ajay Kumar v. Lata, 2019 case, the supreme court said that a case for domestic violence can be filed against husband, a male partner or against his relatives, depending in the situation.

Chapter IV of the Act entails the procedure for obtaining orders of reliefs. All such proceedings are governed by the provisions of the Code of Criminal Procedure, 1973.[13] It is not mandatory that the victim should lodge a complaint.  Any person who reasonably believes that an act of domestic violence has been or is likely to be committed may inform the concerned authorities. Such persons are exempted from liabilities.[14] Such person may present an application to the Magistrate for issuing reliefs such as an order for payment of compensation or damages for the injuries caused as a result of domestic violence.[15] The Magistrate shall then give a notice of the first date of hearing.[16] He is bound to dispose of every application within a period of sixty days from the date of its first hearing. If necessary, the magistrate may direct the respondent or the aggrieved person, either jointly or individually to undergo counselling.[17] Further, considering the nature and circumstances of each case, the proceedings may or may not be held on camera.[18] After giving the opportunity of being heard to both the parties and upon being satisfied that domestic violence has taken place, or is  likely to take place, the Magistrate shall pass appropriate orders for the protection of the aggrieved person. These orders aim to prohibit the respondent from:

1. committing, abetting or aiding in any act of domestic violence,
2. entering the place of work of the aggrieved person (school, in case of the aggrieved person being a child)
3. attempting to communicate
4. alienating any assets (including bank lockers, bank accounts, her stridhan etc.)
5. causing violence to the dependents/relatives/persons who assist the aggrieved person
6. any other act specified in the order.[19]

Other orders include custody orders,[20]compensation orders[21], interim and ex-parte orders[22] The magistrate may also direct the respondent to pay monetary relief to meet the expenses incurred and losses suffered by the aggrieved person (and child, if any) due to domestic violence.[23]Additionally, the Act expressly grants the aggrieved person the right to reside in the shared household irrespective of whether or not she has any right, title or beneficial interest in the same.[24] In Abha Arora v. Angel Sharma,[25] the court held that an order under the Act restraining the respondent from alienating or disposing can be made only in respect of a shared household. In S Meenavathi v. Senthamarai Selvi,[26]  the court held that by virtue of a residence order under Section 19 of the Act, women members of the family cannot be directed to be removed from the shared household. In Shammi Nagpal v. Sudhir Nagpal[27], the court held that accommodation provided to the husband by his employer can be treated as a matrimonial home. The wife shall have right to the shared household as long as the husband continues to be the employee, or upon his death.  In Vimalben Ajithbhai Patel v. Vatslaben Ashokbai Patel,[28] 2010, the apex court held that the right to residence is a part of the right to maintenance. Appeals shall lie against the orders of the Magistrate before the Court of Sessions within thirty days from the date of order.[29] In case of breach of order by the respondent, it shall be tried as an offence and be punished with either imprisonment extending up to one year or with a fine of rupees twenty thousand rupees or with both.[30]

DOMESTIC VIOLENCE ACT AND FUNDAMENTAL RIGHTS

In Francis Coralie Mullin v. Administrator, Union Territory Delhi,[31] the Supreme Court stated that any act which damages, injures or interferes with the use of any limb or faculty of a person, either permanently or even temporarily would be a violation of article 21. In Ahmadabad Municipal Corporation v. Nawab Khan Gulab Khan,[32] the Supreme court emphasized that right to life includes right to live with human dignity, right against being subjected to humiliating sexual abuse and emotional abuse. These acts fall within the ambit of domestic violence. Chameli Singh v. State of UP[33] holds that right to life would include right to shelter. This right has been reinforced by Sections 6 and 17 of the Domestic Violence Act.  The Domestic Violence Act promotes rights of women guaranteed under Articles 14 and 15.[34]

CONCLUSION

Domestic violence has hindered the development of the women as a class of individuals in all aspects of life. Apart from the physical injuries sustained, the domestic violence leaves a huge negative impact on the psyche and personality. Many survivors undergo multiple counselling sessions to return to normal lives. Despite having a legal framework in place to curb domestic violence, women continue to suffer. Between January and May 2021, over 2,300 domestic violence complaints were filed with the National Commission for Women. The figure is the highest since 2000. [35] The high numbers can be perceived from two aspects. Positively, more women are standing up against domestic violence by seeking legal help. However, it also implies that the crime rate is still high. On a negative note, the high numbers can be signaling a dangerous rise in violence considering the pandemic lockdown and work-from-homes still continuing. In either of the cases, the laws have proved to be inefficient. Although people are aware of the laws existing in favor of women, men have the audacity to abuse her because he knows that he can get away with it.  Therefore, it is the need of the hour to make our laws stringent to safeguard the nation’s women. Last but most importantly, women should be sensitized about the importance of financial independence and the legal framework that is readily available to help them.

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[1] UN Women, www.unwomen.org (Last visited 15^th November 2021)

[2] Anuradha Kapoor, An Ongoing Pandemic: Domestic Violence during COVID-19, 56 Review of Women’s Studies, (2021)

[3] Krishnakumar, Verma, Understanding Domestic Violence in India During Covid-19: A Routine Activity Approach. Asian J Criminol.1, pp.1-7, (2021)

[4] Sudha Jha Pathak, Domestic Violence - An Insight into Incest, 5 NIRMA U. L.J. 69 pp.71-72 (2016).

[5] Protection of Women against Domestic Violence, § 3, No.43 of 2005, Act of Parliament, 2005(India)

[6] Dr. Nuzhat Parveen Khan, Textbook on Women & Child Related Laws, 1^st ed.

[7] Lt. Col. VD Bhanot v. Savitha Bhanot (2012) 3 SCC 183

[8] Supra. §6, 7, 11

[9] Halsbury’s Laws of India (Family Law II, Vol 20), 2 edn

[10] Adil vs. State, II(2010) DMC 861 (Delhi)

[11] Manmohan Attavar v. Neelam Manmohan Attavar, (2017) 8 SCC 550

[12] D.Velusamy v. D.Patchaiammal (2010) 10 SCC 469

[13] Supra. § 28

[14] Supra. § 4

[15] Supra. § 12

[16] Supra. § 13

[17]Supra. § 14.

[18] Supra. § 16

[19] Supra. § 18

[20] Supra. § 21

[21] Supra. § 22

[22] Supra. § 23

[23] Supra. § 20

[24] Supra. § 17

[25]Abha Arora vs. Angel Sharma, 148(2008) DLT 506

[26] S Meenavathi vs. Senthamarai Selvi, LNIND 2009 BMM 772

[27] Shammi Nagpal v. Sudhir Nagpal, 2008(5) Bom CR 149

[28] Vimalben Ajithbhai Patel v. Vatslaben Ashokbai Patel, AIR 2008 SC 2675

[29] Supra. § 29

[30] Supra. § 30

[31] Francis Coralie Mullin v. Administrator, Union Territory Delhi, 1981 AIR 746

[32] Municipal Corporation v. Nawab Khan Gulab Khan, (1997) 11 SCC 123

[33] Chameli Singh vs. State of U.P & Anr., (1996) 2 SCC 549

[34] Mitike Shrivastava, Domestic Violence Act vis-à-vis Right to Life, 2012 1 MLJ Crl 9

[35] THE HINDU, www.thehindu.com (Last visited 15^th November 2021) 

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