DOMESTIC VIOLENCE AGAINST WOMEN

ABSTRACT

Domestic violence is the most

dangerous call

As it is a decline of one’s sentiment’s fall

Which sometimes leads to suicidal end

And leaves her partner in a remorse trend

So it is better to be a human instead of a beast1

Domestic violence is defined as violence towards someone you are in

relation with maybe your mother, father, brother ,sister or in laws. The

victim may not always be the weaker sex.

When this violence grows gender biased and the females are

subjected to the male atrocities it is termed as domestic violence against

women. It is often seen that wives are tortured by their husbands and in

laws but the horizon of domestic violence against women is broad enough

to include abuse against a mother by her children , a sister by her brother ,

a daughter by her father or may be a grandmother by her grandchildren.

The paper deals with relevant laws like Protection Of Women

From Domestic Violence Act , 2005, The Dowry Prohibition

Act 1961 The Dowry Prohibition (Maintenance Of Lists Of

Presents To The Bride And Bridegroom) Rules, 1985 ,

Provisions Of Criminal Procedure Code, Indian Penal Code And

Evidence Act ,Pre-Conception And Pre-Natal Diagnostic

Techniques (Pcpndt) Act, 1994 and cases decided by the apex court

1 Shroud Of Domestic Violence , Poem By Praveen Gola Published On Feb 7 2013 yourstoryclub/poetry-and-poem/hindi-poem-shrood-of-domestic-violence/

1

like the TANDOOR MURDER CASE and the PUBLIC HANGING case have

been discussed.

There is a comparison between the Indian

scenario and the American counterpart in detail relating to topics such as

•types of violence

•modes of violence

•laws made

•male and female abuse

•statistic analysis

The paper ends with suggestions as to how the crime could be curbed.

Violence against women is on the rise and it is spreading like wild

fire everywhere but we are hesitant to take a single bonafide step against

it.

The reported cases include threatening, humiliation, throwing

out of house at midnight , property destruction, violence during pregnancy,

depriving meeting with children and paternal home and emotional stress.

The growing menace could be curbed by studies on

prevalence , risk and protection factors as well as health consequences,

establishing basic support system and providing immediate medical

assistance to the victim along with counseling, shelter and emotional

support.

(367 WORDS)

2

DOMESTIC VIOLENCE AGAINST WOMEN : LEGISLATIVE AND JUDICIAL

STUDY IN THE INDIAN SCENARIO ALONG WITH THE

AMERICAN

LIBRETTO

Success , high salary put women at abuse risk2 ; Former

Indian minister , wife arrested on dowry torture charges3 ; 2 TOI 10 Apr 2014 05:30 IST, Retrieved 24th May 25, 2014 09:30 p.m. IST

3 http://www.trust.org/item/?map=former-indian-minister-wife-arrested/, Retrieved 24th May 25, 2014 09:30 p.m. IST

3

Dowry deaths on rise across India4 ; 106000 women burnt to

death in 1 year5. All these and what not, turn to any

newspaper at random , switch over to any news channel or

access any social media and you would find the story of a

woman written in blood. What actually one would find in any

mass communication media now a days is the reports of

violence against women in one and all forms and its

increasing and alarming rate which has surpassed all filters

and fetters of law , rules and regulations. There are cases

which we come to know through media reports and there are

many more cases which go unreported everyday , every

minute , every second. These in fact include the very cases

which we ourselves indulge in or the ones which we witness

in the neighbourhood but are hesitant to take a single

bonafide step against it.

In our society, violence

against women is on the rise and it is spreading like wild

fire everywhere. We can’t really use the word spread because

the ritual of domestic violence was prevalent in mindset of

patriarchal society from where it actually spread its branches.

Now it has become a legacy being passed from one generation

4 m.gulfnews.com/news/world/India/dowry-deaths-on-rise-across-india-1.1227758, Retrieved 24th May 25, 2014 09:30 p.m. IST

5 Genderbytes.wordpress.com/2011/10/02, Retrieved 24th May 25, 2014 09:30p.m. IST

4

to other. The root of this phenomenon lies in the complete

subordination of women in the male dominated society.

“Woman must be kept in

subordination to the males

of the family : in

childhood to their father, in youth

to their husband and in old

age to their sons”.6

This legacy continues and may be will continue until and

unless something serious is done. The paper deals with the

problem of domestic violence in Indian scenario , its

legislative and judicial developments as well as ways to

tackle it out. Let us now assess the topics in detail .

1. DOMESTIC VIOLENCE — WHAT THE TERM ACTUALLY MEANS : The

term domestic violence is defined as7 :

“ Domestic violence and

emotional abuse are behaviours

used by one person in a

relationship to control the other.

partners may be married

or not married ;heterosexual, gay

or lesbian; living

together or separated or dating.”

6 Manusmriti IX 737 http://www.domesticviolence.org/definition/, Retrieved 24th May 25, 2014 09:30 p.m. IST

5

Domestic violence is towards someone who you are in relationship with be

it wife, husband, son, daughter, mother ,father, grandfather, or any other

family member.

According to the Merriam-Webster dictionary definition,

domestic violence is: "the inflicting of physical injury by

one family or household member on another; also: a repeated

or habitual pattern of such behavior."8

The U. S. Office on Violence Against

Women (OVW) defines domestic violence as a "pattern of

abusive behavior in any relationship that is used by one

partner to gain or maintain power and control over another

intimate partner". The definition adds that domestic

violence "can happen to anyone regardless of race, age,

sexual orientation, religion, or gender", and can take many

forms, including physical abuse, sexual abuse, emotional,

economic, and psychological abuse9

1.1 Definition under Indian law: Section 3 of the

Protection Of Women From Domestic Violence Act , 2005

defines domestic violence as any act, omission or

commission or conduct of the respondent constitutes domestic

violence in case it  harms , injures or endangers the

health, safety, life, mental or physical, of the aggrieved 8 Domestic Violence. Merriam Webster. Retrieved 14 May. 2014.9 "About Domestic Violence". Office on Violence Against Women. Retrieved2014-05-22

6

person or causes physical, sexual, verbal , emotional and

economic abuse to her to meet any unlawful demand for any

dowry.

1.2 Definition of Domestic violence in United States : In

America it is a form of violence expressed by one partner

against another in the content of an intimate

relationship . It is recognized as an important social

problem by both governmental and non-governmental agencies,

and various Violence Against Women Acts have been passed by

the U.S. Congress in an attempt to truncate this evil.

Domestic abuse is also referred to as 'intimate partner

violence' or 'IPV' in the U.S.. Victimization due to violent

assault in general is common in the U.S. among women, with

an estimated 1.9 million women physically assaulted

annually, and 22.1% of women and having been physically

assaulted by a current or former spouse, cohabiting partner,

boyfriend or date in their lifetime (the preceding data is

according to a 2000 U.S. Department of Justice Report)10

Victimization from domestic violence transcends the

boundaries of sexual orientation and gender, with

10. Tjaden, Patricia; Thoennes, Nancy (November 2000). "Full Report of

the Prevalence, Incidence, and Consequences of Violence Against Women".

National Institute of Justice, United States Department of Justice.

7

significant percentages of LGBT couples facing these

issues.11  Social and economically disadvantaged groups in

the U.S. regularly face worse rates of domestic violence

than other groups. For example, about 60% of Native

American women are physically assaulted in their lifetime by

a partner or spouse.12

Intimate terrorism, an ongoing, complicated use of

control, power and abuse in which one person tries to assert

systematic control over another psychologically, often

results after the violence against women described.

The following definition applies for the purposes of

subchapter III of chapter 136 of title 42 of the US Code:

The term 'domestic violence' includes felony or misdemeanor

crimes of violence committed by a current or former spouse

of the victim, by a person with whom the victim shares a

child in common, by a person who is cohabitating with or has

cohabitated with the victim as a spouse, by a person

similarly situated to a spouse of the victim under the

domestic or family violence laws of the jurisdiction

receiving grant monies, or by any other person against an

adult or youth victim who is protected from that person’s

acts under the domestic or family violence laws of the

11 Heavey, Susan (January 25, 2013). "Data shows domestic violence, rapean issue for gays". Reuters. Retrieved May 22, 201412 http://www.ncbi.nlm.nih.gov/pmc/articles/PMC446227/

8

jurisdiction13 It was inserted into the Violence Against

Women Act of 1994 by section 3(a) of the Violence Against

Women and Department of Justice Reauthorization Act of

200514

It also applies for the

purposes of section 72 7S of subpart 17 of Part D of

subchapter V of chapter 70 of title 20,15 section 143 7F of

subchapter I of chapter 8 of title 42,16 and subchapter XII-

H of chapter 46 of title 42 of the US Code.17

1.3 When Domestic Violence turns into Domestic Violence

Against Women :

Domestic violence when turns gender based and when pre

dominantly includes a male’s atrocities towards a female it becomes

“DOMESTIC VIOLENCE AGAINST WOMEN”.

13 US Code. Title 42. Chapter 136. Subchapter III. Section 139(a)(6)14 The Violence Against Women and Department of Justice Reauthorization Act of 200515 US Code. Title 20. Chapter 70. Subchapter V. Part D. Subpart

17. Section 725(a)(1).

16 US Code. Title 42. Chapter 8. Subchapter I.violence&url=/uscode/html/uscode42/usc_sec_42_00001437---f000-.html Section 143 7F(f)(8)17 US Code. Title 42. Chapter 46. Subchapter XII-H. Section 3796gg–2.

9

This violence can be against any woman

in relation not particularly wife , the victim may be the

person’s mother, daughter , mother-in-law , grandmother or

aunt. But now a days the case which is on rise is the

victimisation of a wife by husband and in- laws for reasons

like dowry demands , refusal to fulfill sexual demands and

not being able to produce a male child. The linked crimes

which arise out of this menace are dowry death , bride

burning, female foeticide and infanticide and many more.

UNO defines domestic violence

against women as18:

“Gender biased

violence that results in physical , sexual or

or psychological

harm, suffering including threats.”

1.2 Assessing the problem: Since time immemorial domestic

violence against women has been a stigma on the moral fabric

of the society we are living in. The contributing factors

could be the desire to gain control over the weaker sex,

the desire to exploit women for personal benefits , the

flare to be in a commanding position all the time and the

burning desire to showcase one’s supremacy over the other.

On various occasions , psychological problems and social

influence also add to the vehemence. In the industrialized

18 UNO 1993

10

world one in every five healthy years of life of women aged

15 to 44 is taken by domestic violence.19

2. THE INDAIN SCENARIO : Domestic violence is very common in

India. One of the most common reasons for it being so

prevalent is the orthodox belief and the conservative

mindset of the society . This patriarchal mindset of Indian

men makes women suffer both physically and emotionally.

According to United Nation

Population Fund Report, about two-third of married Indian women

are victims of domestic violence and as many as 70% of married women in

India between the age of 15 and 49 years are victim of beating , rape or

forced sex. In India more than 55% women suffer from domestic violence

specially in the case of Bihar , Uttar Pradesh , Madhya Pradesh and other

northern states.20

2.1 Modes of violence reported in India : The modes of

cruelty inflicted by the patriarchal society on women has

crossed all bounds. The reported cases of violence against

women in several cases include assault, battery and all

forms of cruel physical and emotional harms. These are

listed below:21

2.1.1 Kerosene oil / acid burns : In instances the in laws

and husbands have poured kerosene over the victim and her

children and tried to set them ablaze. In other instances

19 World Development Report, 199320 www.wecanendvaw.org/gender-fact-file/india21 ibid

11

hot oil has been poured over the victim or the body parts

have been singed with lighter.

2.1.2 Hitting / beating / assault : Instances have been

reported in which the assaulter tried to cut off the

victim’s tongue or she had been dragged by hair. Other

instances report cuts with knife, human bites, burns with

cigarettes, abuse after drinking, abuse at workplace, broken

teeth , slapped face and broken arms. The in laws in many

cases make the victim do all the house hold work.

2.1.3 Forced to eat / drink unwanted material.: In instances

the victim has complained of overdose of sleeping pills,

forced poisoning or forced drinking of urine. In other

circumstances the victim is forced to eat the left over of

the in laws.

2.1.4 Sexual violence : In most of the cases the woman is

victim of rape in marriage or forced sex and forced oral sex

and sometimes sodomy.The husband in some cases inflicts her

with assault if she refuses to have sex with him.

2.1.5Other miscellaneous modes : The reported cases include

modes of assault like tying of hands and stuffing clothes in

mouth , using wooden log to beat the victim, attempt to kill

her , confinement and deprivation of food, threatening,

humiliation, throwing out of house at midnight , property

destruction, violence during pregnancy, depriving meeting

with children and paternal home and emotional stress.

12

The most common causes for

women stalking and battering include dissatisfaction with

the dowry and exploiting women for more of it , arguing with

the partner , refusing to have sex with him , neglecting the

children, going out of the home without telling the

partner , not cooking properly on time , indulging in extra

marital affairs, not looking after in laws etc. In some

cases infertility in females also leads to their assault by

their family members. The greed for dowry, desire for a male

child and alcoholism of the spouse are major factors of

domestic violence against women in rural areas .

2.2 Types of Domestic Violence Against Women : \

2.2.1 Types Of Violence In India: WEAVE (WOMEN EVERYWHERE

ADVOCTING VIOLENCE ELIMINATION) identifies 5 types of

domestic violence.22 All of these types of abuse are done

for the purpose of gaining power and control over the

victim. These may be inflicted in combinations or

separately.

(a) Physical abuse : It is the use of physical force against

another person in a way that ends up injuring the person or

puts the person at risk of being injured.

(b)Emotional abuse: Can be verbal or non verbal . It may be

in form of calling names or criticizing the victim. It may

22 www.weaveinc.org/types-domestic-violence, Retrieved 24th May 25, 2014 09:30 p.m. IST

13

be non verbal as the other party making all decisions on

behalf of the other leaving no say of the victim.

(c)Financial abuse: It include withholding resource ,

stealing from the victim or using the victim’s name to incur

debt.

(d)Sexual abuse: It is often linked to physical abuse. They

may occur together , or the sexual abuse may occur after a

bout of physical abuse.

(d)Spiritual abuse: It is anything which comes in way of

one’s doing something or feeling good about oneself. The

victim is not allowed to practice her moral, cultural or

religious beliefs and is forced to give up things that is

important to her.

Types Of Violence In America and relative study: The

dynamics between the couple may include:

Situational couple violence, which arises out of

conflicts that escalate to arguments and then to

violence, is the most common type of intimate partner

violence. Women are as likely as men to be abusers,

however, women are more likely to be physically injured,

require police intervention and become fearful of their

mates23 This can be linked to physical violence in India but the ratio of

woman as abusers in India is much less as compared to that in America .

23 A Sociologist’s Perspective on Domestic Violence, A Conversation with Michael Johnson,

Ph.D. Theodora Ooms, interviewer. Center for Law and Social Policty

(CLASP). Page 3. Retrieved May 26, 2014

14

Intimate terrorism (IT), involves a pattern of ongoing

control using emotional, physical and other forms of

domestic violence and is what generally leads victims,

who are usually women, emotional stress . It is what was

traditionally the definition of domestic violence and is

generally illustrated with the "Power and Control

Wheel"24 It can be compared with the spiritual and emotional stress

and abuse inflicted by men and in laws on a woman in India. It is more

or less similar in America too.

Violent resistance (VR), or "self-defense", is

violence perpetrated by victims against their abusive

partners.25 It is generally used infrequently because men

are usually able to physically overpower women. Michael

Johnson finds that "Most women who resist violently soon

turn to other means of coping with their abuse."26 The

situation is more or less same in India too where women succumb to

men but in India most of the women in rural areas succumb having the

notion in their mind that it is the birth right of men to assault them.

24 Power and Control Wheel, National Center on Domestic and Sexual Violence. Retrieved May 26, 201425 Bachman, R. and D. Carmody (1994). "Fighting Fire with Fire: The Effects of Victim Resistance in Intimate Versus Stranger Perpetrated

Assaults Against Females". Journal of Family Violence 9 (4): 317–

31. doi:10.1007/BF01531942.26 A Sociologist’s Perspective on Domestic Violence, A Conversation with Michael Johnson,

Ph.D. Theodora Ooms, interviewer. Center for Law and Social Policty

(CLASP). Page 3. Retrieved November 20, 2011.

15

Common couple violence, where both partners are engaged

in domestic violence actions.27. This is a rare form of

violence and occurs due to breaking of patience towards

assault of either party.

Mutual violent control (MVC) is a rare type of intimate

partner violence that occurs when both partners act in a

violent manner, battling for control. This is termed as marital

discord in India and more often leads to assault on the woman or

divorce between the parties.

2.2.1 25 th Congress Medical Women’s International

Association Report On Types Of Domestic Violence : 28

TABLE NO. 1

S.No. Types of domestic violence

Number of cases reported

Percentageof cases reported (in %)

1 Definite 167 22.42 Possible 330 44.33 Unlikely 67 9.04 Definitely

Not181 24.3

27 Johnson, Michael P., Kathleen J. Ferraro (2000). "Research on Domestic Violence in the 1990s: Making Distinctions". Journal of Marriage andthe Family62 (4): 948–63. doi:10.1111/j.1741-3737.2000.00948.x28 25th Congress Medical Women’s International Association Report On Types Of Domestic Violence , Domestic Violence Against Women: Indian Scenario, S. Daga, M.D. , www. Regional.org.au/au/mwia/papers/full/32_daga.htm , Retrieved 24th May 25,2014 09:30 p.m. IST

16

80% of definite and possible cases of violence and suicides are in 15-39 years of age . Falls were reported in older women .A third of the incidents took place at 9a.m.to 4p.m. when medical support were not at best.

TABLE NO. 2S.NO MODE OF INJURY CASES

REPORTED(in %)1 Beating and kicking 342 Assault with stick,

rod23

3 Consumption of poison 284 Sharp objects used 16

TABLE NO. 3S.NO SITE OF INJURY CASES REPORTED(in %)1 Head and face 552 Chest, back and

abdomen23

3 Arms or leg 41

TABLE NO.4 S.NO.

DESCRIPTION OF INJURIES

CASES REPORTED(in %)

1 Abrasions 25.72 Contusions 35.73 Lacerations 3.54 Contusions and

lacerations24

5 Fractures 1.26 Profuse bleeding 7.67 Medium/serious 12.8

RELATIVE STUDY OF U.S STATISTICS

17

• 1% of all women( more than 18 years of age ) who

participated in a UN national study in 1995–96, who may or

may not have been married or partnered, were victims of

domestic abuse within the previous 12-month period.29

A report by the United States Department of Justice in

2000 found that 1.3% of women and 0.9% of men reported

experiencing domestic violence in the past year.30

About 2.3 million people are raped or physically

assaulted each year by a current or former intimate

partner or spouse.31

Physically assaulted women receive an average of 6.9

physical assaults by the same partner per year.32.

We see that the report in America also includes report of assault on men.

Reports are such that 3.2 million men which makes 7.4% of the population

suffered domestic violence33. . However, it is noted that men

29 In-depth study on all forms of violence against women. United Nations, General

Assembly. 6 July 2006. Page 54. Retrieved May 26, 201430 Tjaden, Patricia; Thoennes, Nancy (November 2000). "Full Report of

the Prevalence, Incidence, and Consequences of Violence Against Women".

National Institute of Justice, United States Department of Justice.

31 The Violence Against Women Act of 2005, Summary of Provisions. National Network to

End Domestic Violence. Retrieved May 26, 2014.32 ibid33 Tjaden, Patricia; Thoennes, Nancy (November 2000). "Full Report of the Prevalence, Incidence, and Consequences of Violence Against Women".

National Institute of Justice, United States Department of Justice.

18

are seriously injured in 38 percent of the cases in which

"extreme aggression" is used. Fiebert additionally noted

that his work was not meant to minimize the serious effects

of men who abuse women.34 35Women are far more likely to use

weapons, such as throwing a plate or firing a gun.36

In India also there have been reports of abuse by women

on male partner but the reports ate very few in number.37

2.3 Judicial cases related to dowry death and related judgment : 2.3.1 In the case of Pawan Kumar & Ors v state of Haryana38

the deceased Urmila was burnt for dowry demand. She had

earlier gone with complaints of maltreatment and putdowns

to her parents but subsequently succumbed to a household

quarrel and following so called accidental fire. In his

judgement A.P.Mishra J observed that:

“For more than a century, inspite of tall words of respect

for women, there has been an onslaught on their liberties

34Fiebert, Martin S. References examining assaults by women on their spouses or male partners:an annotated bibliography35 Academic website of Martin S. Feibert, Ph. D.

36 "Violence by Intimates Analysis of Data on Crimes by Current or

Former Spouses, Boyfriends, and Girlfriends". US Department of Justice.

Retrieved May 26, 2014

37 The Times Of India , February 2, 2014 12. am IST38 Decided on 9 February 1998, Bench CJI, A.P.Mishra J.

19

through `bride burning' and `dowry deaths'. This has caused

anxiety to the legislators, judiciary and law enforcing

agencies, who have attempted to resurrect them from this

social choke. There have been series of legislations in this

regard, without much effect. This led to the passing of

Dowry Prohibition Act in 1961. Inspite of this, large number

of `brides burning' and dowry deaths continued”

2.3.2 In State Of Punjab v Iqbal Singh And Ors 39 Ahmadi J.

decided the case where a woman set ablaze herself and her

three children due to the exceeding dowry demand, beating

from the in laws and marital discord. It was decided in the

case that even if the husband drives the woman to

circumstances that make her take a drastic step such as

ending her life and if there is any involvement whatsoever

of the in laws of the deceased the husband and the in laws

are both held responsible. It was held that:

“If a married woman is subjected to cruelty of harassment by

her husband or his family members section 498- A, IPC would

be attracted. If such cruelty or harassment was inflicted by

the husband or his relative for, or in connection with, any

demand for dowry immediately preceding death by burns and

bodily injury or in abnormal circumstances within seven

years of marriage, such husband or relative is deemed to

39 AIR 1991 SC 1532

20

have caused her death and is liable to be punished under

section 304B IPC.”

2.3.3 In State Of Rajasthan v Lichma Devi40 it was a bench

of G.M. Lodha and G.K.. Sharma JJ which considered the

appeal filed by state of Rajasthan against the acquittal of

Lichma Devi, mother in law of the deceased Pushpa in what is

alleged to be the most gruesome, heinous, cruel and barbaric

murder by pouring kerosene oil and lighting fire on her and

locking the kitchen from outside after ill treatment on

account of her expectations of dowry. The court ordered

public hanging and observed:

“We are constrained to give this direction because of theincreasing menace of dowry deaths, flood of cruelty to younghelpless innocent brides who expect this protection fortheir natural inherent fundamental right of living as ahuman being under the Constitution of India which providesnot only protection of social justice and equality to allbut contains a special mandate for the duty towards theweaker sex.”

which was later withdrawn by supreme court orders41 statingit should be carried with basic human dignity inside jailand that public hanging is neither possible nor feasible.It was held by the apex court that42

40 1986(1) WLN 10641 http://www.apnewsarchive.com/1985/High-Court-Witdraws-Orders-Of-Public-Hanging-In-Bride-Burning-Case/id-a8d112c0599f19e5d97fbe192b2896dc42  plea by Attorney General J.K. Parasaran that hanging in public involved ''torture, cruelty and indignity,'' and that executions should be carried out with ''basic human dignity'' guaranteed under the constitution.

21

“  hanging in public involved ''torture, cruelty and

indignity,'' and that executions should be carried out with

''basic human dignity'' guaranteed under the constitution.”

2.3.4 In Parveen Malhotra v State :43 The facts were such

that Shalini had a tiff with her husband and he said he

would not return to home if she does not follow him to

office. To this threatening she herself followed him to his

office where she poured whisky on herself and in a spur of

time a lighted matchstick set her ablaze.

It was decided by the Hon’ble court

that

“Sentiments and emotions have no part to play, in the

judicial pronouncements. The judicial discretion cannot be

allowed to be swayed by emotions and indignation even in

cases where it is alleged that the accused has committed a

grave offence.”

And the judgement read as giving bail to the husband of the deceased: “It is unfortunate that Shalini lost her life at prime of

the youth and video, cassette depicts a very pathetic story.

I must also state that the concern and anxiety displayed by

women organisations is appreciable. After watching the

43 1990 CriLJ 1977, ILR 1990 Delhi 599

22

cassette and hearing counsel for women organisation, for a

while, one is moved and swayed by emotions which the

organisation did attempt to bring in to some extent, but

when all the circumstances are adverted to and their

cumulative effect seen, which way the discretion should be

exercised becomes clear.”

2.3.5 Sushil Sharma v The State (Delhi Administration ) 44 In the said case, Sunil Sharma who first shot his wife

Naina and then burnt her in a Tandoor in a restaurant was

sentenced to life imprisonment as per the judgement in

later appeal of Sushil Sharma vs State (NCT) Of Delhi on 8October, 201345

3. LEGISLATIVE DEVELOPMENTS :

3.1 Protection Of Women From Domestic Violence Act , 2005: It is 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.46

Section 3 of the Act defines domestic

violence as any act, omission or commission or conduct of

44 1996 CriLJ 394445 Bench: P Sathasivam, Ranjana Prakash Desai, Ranjan Gogoi.

46 NewDehi, the 14thSeptember 2005/Bhadra,23, 1927

23

the respondent which harms , injures or endangers the

health, safety, life, mental or physical, of the aggrieved

person or causes physical, sexual, verbal , emotional and

economic abuse to her or to meet any unlawful demand for

any dowry. The Act seeks to cover those

women who are or have been in a relationship with the abuser

where both parties have lived together in a shared household

and are related by consanguinity, marriage or a relationship

in the nature of marriage, or adoption .In addition to these

, relationship with family members living together as a

joint family are also included. Even those women who are sisters,

widows, mothers, single women, or living with the abuser are entitled to

get legal protection under the proposed Act. This is as per definition of

domestic relationship in Section 2 clause (f)

One of the most important features of the Act is the

woman’s right to secure housing . The Act provides for the

woman’s right to reside in the matrimonial or shared

household, whether or not she has any title or rights in

the household. This right is secured by a residence order,

which is passed by a court. These residence orders cannot

be passed against anyone who is a woman. This is granted

as per Section 6 and Section 17 as well as Section 19 of

the Act.

24

The other relief envisaged

under the Act is that of the power of the court to pass

protection orders that prevent the abuser from aiding or

committing an act of domestic violence or any other

specified act, entering a workplace or any other place

frequented by the abused, attempting to communicate with the

abused, isolating any assets used by both the parties and

causing violence to the abused, her relatives and others who

provide her assistance from the domestic violence

The draft Act provides for

appointment of Protection Officers and NGOs to provide

assistance to the woman w.r.t medical examination, legal

aid, safe shelter, etc.

The Act provides for breach of

protection order or interim protection order by the

respondent as a cognizable and non-bailable offence

punishable with imprisonment for a term which may extend

to one year or with fine which may extend to twenty

thousand rupees or with both. Similarly, non-compliance

or discharge of duties by the Protection Officer is also

sought to be made an offence under the Act with similar

punishment.

Section 20 of the act

provides for Monetary relief.

25

3.2 THE DOWRY PROHIBITION ACT 1961 :47

"Dowry" means any property or valuable security given or agreed to be given either directly or indirectly by one

party to a marriage to the other party to the marriage; or

by the parents of either party to a marriage or by a other

person, to either party to the marriage or to any other

person; at or before or after the marriage.This definition

is given as per Section 2 of the Act

Section 3 of the Act provides Penalty for

giving or taking dowry as any person who gives or takes

shall be punishable with imprisonment extending to six

months, fine extending to five thousand rupees, or both.

Section 4 of the Act provides for penalty

for demanding dowry that anyone who demands, directly or

indirectly, from the parents or guardian of a bride or

bridegroom, as, any dowry, shall be punishable with

imprisonment extending to

six months, or with fine extending to five thousand rupees,

or with both:

Section 5 of the Act hold any agreement

for giving or taking dowry to be void

47 ACT NO. 28 OF 1961

26

Section 8 of the act provides that .every

offence under this Act shall be cognizable, non-bailable and

non-compoundable

THE DOWRY PROHIBITION (MAINTENANCE OF LISTS OF PRESENTS

TO THE BRIDE AND BRIDEGROOM) RULES, 1985 has also been

passed with widening of Section 9 of The Dowry Prohibition

Act

3.3 PROVISIONS OF CRIMINAL PROCEDURE CODE ,197348:

Section 125 and 126 of the CrPC

provide for order for maintenance of wives , children and

parents and its related procedure respectively.

Section 174 of CrPC provides for

the power of police to enquire and report on suicide,

stating that when the officer in charge of a police station

or some other police officer specially empowered by the

State Government receives information that a person has

committed suicide, or has been killed by another, or has

died under circumstances raising a suspicion, he shall

immediately give intimation thereof to the nearest Executive

Magistrate empowered to hold inquests.

It also holds that when the case

involves suicide, death or suspicion of death of offence by

other person relating to woman within seven years of her

marriage such police officer is prescribed in this behalf

48 Act 2 of 1974

27

forward the body, with a view to its being examined, to the

nearest Civil Surgeon,

Section 198-A.provides for

the prosecution of offences under Sec. 498-A of the Indian

Penal Code. It states no Court shall take cognizance of an

offence punishable under Sec. 498-A of the Indian Penal Code

(45 of 1860) except upon a police report of facts which

constitute such offence or upon a complaint made by the person

aggrieved by the offence or by her father, mother, brother, sister or by her

father's or mother's brother or sister or, with the leave of the Court, by any

other person related to her by blood, marriage or adoption.

3.4 PROVISIONS OF THE INDIAN EVIDENCE ACT , 187249:

Section 113-A of Indian Evidence Act

provides for Presumption as to abatement of suicide by a

married woman.- When the question is whether the commission

of suicide by a woman had been abetted by her husband or any

relative of her husband and it is shown that she had

committed suicide within a period of seven years from the date of her

marriage and that her husband or such relative of her husband had

subjected her to cruelty, the Court may presume, having regard to

all the other circumstances of the case, that such suicide had

been abetted by her husband or by such relative of her husband.

Section 113-B of Indian evidence act

provides for Presumption as to dowry death. It reads as

49 Act 1 of 1872

28

When the question is whether a person has committed the

dowry death of a women and it is shown that soon before her

death such woman had been subjected by such person to cruelty or

harassment for, or connection with, any demand for dowry, the Court shall

presume that such person had caused the dowry death.

3.5 PROVISIONS OF THE INDIAN PENAL CODE , 1860 50 :

Section 304-B of Indian Penal

Code provides definition of Dowry death as Where the death

of a woman is caused by any burns or bodily injury or occurs

otherwise than under normal circumstances within seven years of

her marriage and it is shown that soon before her death she was

subjected to cruelty or harassment by her husband or any relative of her

husband for, or in connection with, any demand for dowry, such death

shall be called "dowry death", and such husband or relative

shall be deemed to have caused her death.

Whoever commits dowry death shall be punished with

imprisonment for a term

which shall not be less than seven years but which may

extend to imprisonment for

life.

In 1983, domestic violence was recognised as a specific

criminal offence by the introduction of section 498-A into

the Indian Penal Code

50 Act 45 of 1860

29

Section 498-A of IPC. defines

cruelty by Husband or relative of husband of a woman

and states punishment of a term three years and fine.

Four types of cruelty are dealt with by this law:

conduct that is likely to drive a woman to suicide,

conduct which is likely to cause grave injury to the

life, limb or health of the woman,

harassment with the purpose of forcing the woman or her

relatives to give some property, or

• harassment because the woman or her relatives is

unable to yield to demands for

more money or does not give some property.

3.6 What are the forms of "cruelty" recognised by the

Courts?

Persistent denial of food,

Insisting on perverse sexual conduct,

Constantly locking a woman out of the house,

Denying the woman access to children, thereby causing

mental torture,

Physical violence,

30

Taunting, demoralising and putting down the woman with

the intention of causing mental torture,

Confining the woman at home and not allowing her normal

social intercourse,

Abusing children in their mother's presence with the

intention of causing her mental torture,

Denying the paternity of the children with the

intention of inflicting mental pain upon the mother,

and

Threatening divorce unless dowry is given.

3.7 Can a woman refuse to have sex with her husband? IS

THERE A LAW ON MARITAL RAPE?: Since India does not have a

law on marital rape, even if a woman's husband has sexual

intercourse with her without her consent, he cannot be

prosecuted for rape. However, excessive and unreasonable

demands for sex, or demands for unnatural sex have been

considered forms of cruelty and may entitle a woman to a divorce.

If a woman is judicially separated, her husband cannot have

sexual intercourse with her without her consent. If he does, he

can be prosecuted under section 376-A of the IPC.

31

3.8 Pre-Conception and Pre-Natal Diagnostic Techniques

(PCPNDT) Act, 1994 51 :   also provides for curbing the evil

of female foeticide which is more or less related to the

evil of domestic violence as a woman is tortured day in and

day out if she is not able to produce a male child. To get

rid of a girl fetus the husbands and in laws go to the

extent of pre natal sex determination and abortion of fetus

and this leads to declining sex ratio. Section 27 reads that

the offences under the act to be cognizable, non bailable

and non compoundable.

3.9 Laws in America : Under South Carolina code, the crime

of "Criminal domestic violence" states that "it is unlawful to: (1)

cause physical harm or injury to a person's own household member; or (2) offer

or attempt to cause physical harm or injury to a person's own household

member with apparent present ability under circumstances reasonably creating

fear of imminent peril." If aggravated circumstances are present,

people can be charged with the crime of "Criminal domestic

violence of a high and aggravated nature". Criminal domestic

violence is not the only charge possible in South Carolina,

people can also be charged under other general statutes.52

5354

51 Act 57 of 199452 "Definitions of Domestic Violence". Childwelfare.gov. Retrieved 2013-09-08.53 "South Carolina Legislature Mobile". Scstatehouse.gov. Retrieved May 26, 2014

32

Three Violence Against Women Acts (VAWA)

(1994, 2000, 2005) United States federal laws have been

signed into law by the President to end domestic violence,

sexual assault, dating violence, and stalking55

The Family Violence Prevention and

Services Act (FVPSA) provides federal funding to help

victims of domestic violence and their dependent children by

providing shelter and related help, offering violence

prevention programs, and improving how service agencies work

together in communities.56

The law provisions in America are far more widely

interpreted and they are applied in practice in a strict

manner whereas on the other hand in India the laws are just

made and not enacted to the fullest extent and that is the

reason why the evil of domestic violence has not been able

to be done away with. In America several intervention

54

http://www.courtinnovation.org/sites/default/files/Case_Processing_Repor

t.pdf

55 Tjaden, Patricia; Thoennes, Nancy (November 2000). "Full Report of the Prevalence, Incidence, and Consequences of Violence Against Women".

National Institute of Justice, United States Department of Justice.56 Laws on violence against women. Office on Women's Health, Office of the

Assistant Secretary for Health, U.S. Department of Health and Human

Services. May 18, 2011. Retrieved May 26, 2014

33

projects like Duluth model57 , Minneapolis domestic violence

experiment58 have been passed to give support to the laws.

The Indian counterpart remains dry and grows drier with the

daily growing cases of violence.

4. REMEDIES FOR THE NUISANCE OF DOMESTIC VIOLENCE: A

CONCLUSIVE NOTE : In the present scenario strict and

stringent steps need to be taken out against the growing

evil of domestic violence. Until and unless a woman raises

her voice loud against the crime it is not possible to curb

the abuse. But only the women’s initiative is not enough ,

it must be supported by laws , rules , regulations, and

various supportive initiatives by the NGOs as well as

governmental organisations.

Some of the steps( as per my rationalization) which can be

taken to mitigate the rising crime of domestic violence can

be:

(a) studies on prevalence , risk and protection factors as

well as health consequences need to be carried out;

(b) basic support system needs to be established which may

include:

57 Twohney, Megan (2009-01-02) “How Can Domestic Violence Be Stopped?” Chicago Tribune. Retrieve May 26, 201458 Maxwell, Christopher D., Garner, Joel H., Fagan, Jefferey A.

(2001). The effects of arrest on intimate partner violence: New evidence from the spouse

assault replication program (Research in Brief) (PDF). National Institute of

Justice.NCJ 188199.

34

i. immediate medical assistance to the victim

ii. counseling

iii. shelter and emotional support

iv. reference to medical workers and women’s organisation

v. legislation and legal cells

(c) police needs to be more sensitive in handling domestic

violence cases and must take them as seriously as any other

crim e.

(d) authorities should take steps to recognize domestic

violence as public health issue .

(e) a crisis support cell needs to be established in all

major government and private hospitals with trained medical

social workers.

(f) training programmes must be organized for health

professionals in order to develop their skills to provide

basic support to the abused .

Together if we come forward and raise our voices

against this crime, it can and definitely will be nipped off from its root. We

must take an oath to truncate the evil from our motherland only then

would we be able to say “women are goddesses in India”

( 5894 WORDS )

(6273 WORDS along with abstract )

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