The article has been written by Mr. Rajdeep Hembram, a 1st year LLM student from University Law College, Hazaribagh, Jharkhand
Introduction
The word domestic taken from old French domestique & directly from Latin Domesticus belonging to household from DOMOUS house. Violence from Latin word VIOLENTIA physical force to inflict injury or damage.
According to World health organization in the WRVH (World report on violence & health) violence means the intentional use of physical force or power threatened or actual, against oneself, another person , or against a group or community that either results in or has a high likelihood of resulting in injury, death, psychological harm, maldevelopment.
There are some types of violence
- Domestic violence
Domestic violence involves someone making their partner afraid by abusing them, over time, in order to control them. This is what differentiates it from violence between partners that is ‘one off’ or ‘goes both ways’. It can include physical, sexual, emotional, psychological, financial, technological, social and spiritual abuse. While men also experience it, domestic violence is mostly perpetrated by men against women.
- Since the age of 15, approximately one in four women and one in 13 men have experienced violence from a partner.
- Women are more likely to feel fear as a result of partner violence.
- Women are more likely than men to be killed by a partner. In Australia, from 2010-2014, 121 women were killed by male partners (current or former). In this same period, 28 men were killed by female partners.
- Family violence
Family violence is a broader term than domestic violence – it refers not only to violence between partners, but also to violence between family members, including child and elder abuse. Family violence is mostly perpetrated by men against women and children.
- Around one in six girls and one in 10 boys has experienced abuse before the age of 15.
- More than twice as many children experienced abuse from their father or stepfather as from their mother or stepmother.
- Sexual violence and harassment
Women and children also experience violence outside their homes, including sexual violence and harassment. Around one in four sexual assaults are perpetrated by a stranger.
- Since the age of 15, one in five women and one in 20 men has experienced sexual violence.
- Since the age of 15, around one in two women and one in four men has experienced sexual harassment.
- The vast majority of perpetrators of sexual violence and harassment are men.
- The majority of child sexual abuse is perpetrated by non-familial known men, including male foster carers, family friends, neighbours, doctors, teachers and religious leaders.
- Non-physical forms of abuse
Non-physical forms of abuse can be part of domestic violence and family violence. Non-physical forms of abuse can include:
- emotional and psychological abuse
- social abuse
- financial and economic abuse
- technological abuse
- spiritual abuse
- stalking.
Perpetrators may use a range of non-physical abusive behaviours to manipulate, coerce, control, threaten and harm women and children. Women and their children report that non-physical forms of abuse can be of equal or greater impact than physical violence.
All forms of abuse can have significant and long-term health and wellbeing, economic and social impacts on women and children.
Domestic Violence laws in India
There are several domestic violence laws in India. The earliest law was the Dowry Prohibition Act 1961 which made the act of giving and receiving dowry a crime. In an effort to bolster the 1961 law, two new sections, Section 498A and Section 304B were introduced into the Indian Penal Code in 1983 and 1986. The most recent legislation is the Protection of Women from Domestic Violence Act 2005. The PWDVA, a civil law, includes physical, emotional, sexual, verbal, and economic abuse as domestic violence.
Dowry Prohibition Act 1961
Dowry Prohibition Act, enacted on May 1, 1961, intended to prevent the giving or receiving of a dowry. Under the Dowry Prohibition Act, dowry includes property, goods, or money given by either party to the marriage, by the parents of either party, or by anyone else in connection with the marriage. The Dowry Prohibition Act applies to persons of all religions in India.
If any person demands, directly or indirectly, from the parents or other relatives or guardian of a bride or bridegroom, as the case may be, any dowry, he shall be punishable with imprisonment for a term which shall not be less than six months, but which may extend to two years and with fine which may extend to ten thousand rupees.
Section 304B
(1) 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.
The purposes of this sub-section, “dowry” shall have the same meaning as in section 2 of the Dowry Prohibition Act, 1961
(2) 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.
SECTION 498A CRUELTY
Definition
According to sec 498A of the Indian penal code which defines husband or relatives of husband of woman subjecting her to cruelty.
Essential Ingredients of this section 498A are:
- There must be a married woman.
- She must be subject to cruelty.
- Such cruelty is done by husband of woman or by the relative of her husband.
Section 498A also given the explanation on cruelty:
- That any wilful act that leads to woman suicide or cause grave injury or danger to life, limb or health.
- Whether mental or physical.
- Any harassment which is related to meet unlawful demand for any property or valuable security.
If found guilty imprisonment for a term may extend to 3 years & shall also liable to fine.
Section 498A was introduced in 1983 to safeguard the rights and empowerment of woman. This was inserted by criminal law (second amendment act 1983) , section 113 -A of evidence act 1872 presumption as to abetment of suicide by married woman was also inserted by this criminal law (second amendment act 1983) act and section 198A of criminal procedure code also inserted where a court can take cognizance of offence upon police report or upon a complaint by party or woman’s parent, brother ,sister ,etc and offence is non bailable.
Before this amendment act there was already the dowry prohibition act 1961 was there and already having punishment imprisonment for a term not be less than five years and with fine not less than fifteen thousand. Later on the lawmaker also inserted sec 304 B dowry death and 113 B presumption as to dowry death. So that the law would get more severe. And accused cannot get rid of it.
Presumption defined
this section 113- A and section 113- B both section presumption is there because according to the principle of criminal jurisprudence there is law in which burden of proof is always on the prosecution to establish beyond a reasonable doubt but the lawmaker move this principle from normal principle and made the law more severe so that accused cannot move away from this and shifted the burden of proof on husband side means presumption evidence in favour of prosecution and presumption can be rebutted by the husband.
Apart from all this there is also many laws for the protection of woman, girl, child
Like:
- The immoral traffic (prevention) act 1956
- The dowry prohibition act 1961
- The commission of sati (prevention)act 1987
- Protection of woman from domestic violence act 2005
- The sexual harassment of women at workplace (prevention, prohibition and redressal) act 2013
- The criminal law (amendment) act 2013
- The indecent representation of woman (prohibition) act 1986
Apart from all this law Indian penal code , criminal procedure code and Indian evidence act is also in favour of protection of woman.
Landmark judgement
Lalita Toppo vs. The state of Jharkhand (2018)
Fact of the case
In the case of Lalita Toppo vs. The state of Jharkhand and Anr.(2018)
The complainant was not the respondent’s legally wedded wife, approached the court for maintenance under protection of women from domestic violence act 2005
The case in brief:
She was in a live-in relationship with whom she had a kid when the couple got separated she filed for maintenance in the Family court of Gumla, from where the court allowed giving her Rs 2000 per month and Rs 1000 to her child. The Appellant filed an appeal in the High court which found the family Court’s ruling incorrect and ruled in favour of husband. The appellant then went to Supreme Court.
Issue involved in this case
Whether a live- in partner can seek maintenance under the domestic violence act 2005 ?
Judgement given by court
The judgement given by three judge bench of Supreme Court composed of the then- CJI Rajan Gogoi, Justice U.U. Lalit and K.M. Joseph observed that a live-in relationship will be obligated to even more relief than that envisaged by section 125 of the Code of Criminal Procedure 1973. Making reference to the provisions of the Domestic Violence Act the bench noted that the petitioner in the case would have a remedy to seek maintenance under the act despite the fact that she is not obligated to be maintained under section 125 of the Code of Criminal Procedure . It was also observed by the court that domestic violence according to the provisions of the Domestic Violence Act also include economic abuse.
Conclusion
From the above discussion, domestic violence is really a serious problem and woman are suffering from it some are able to lodge complaint but many are unable to do so. Various Ngo and activist are working on it. Its also true that legislature are also from time to time enacting laws in India but then also woman have to come up by themselves and fight for their right.
References
Domestic violence
Types of violence against woman
https://www.gov.nl.ca/vpi/files/nine_types_of_violence.pdf
list of laws for protection of woman
http://ncw.nic.in/important-links/List-of-Laws-Related-to-Women