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 )
35