This article has been written by Ms Simran Priyadarshini, a 5th year BA LLB student of SOA National Institute of Law, SOA University, Bhubaneswar

ABSTRACT

Domestic violence, usually referred to as intimate partner violence, is any form of abuse or violence, including physical, mental, and sexual abuse, that occurs in a household context, such as a marriage or cohabitation.

Though it happens all around the world, it is particularly common in India because of the country’s norms on dowry, male supremacy, and joint family structures. Consequently, these elements contribute to the victimization of women by Domestic abuse. In addition to the husband, the women also experience abuse from the husband’s family, particularly when the issue concerns the dowry—whether it is inadequate or nonexistent altogether.

The data presents an inaccurate image since social stigma and the general Indian tendency to care about others opinions prevent things from being reported frequently. Most of the time, the victim’s death from injuries, suicide, or hospitalization are the only ways the matter comes to the attention of the police and legal system. Otherwise, the more subtle types of abuse are typically effectively hidden.

Indian law did not contain any provisions addressing domestic abuse particularly prior to 1983. Section 498A was added when the Indian Penal Code (45 of 1860) was revised in 1983. Section 498A addresses “Matrimonial Cruelty” against women. In India, matrimonial cruelty is now a crime that is punishable by law, not subject to bail, and not subject to compounding.

INTRODUCTION

Psychological abuse, also known as Emotional abuse, is a type of abuse when an individual subjects or exposes another individual to behaviours that have the potential to cause psychological damage, such as anxiety, persistent depression, or PTSD (post-traumatic stress disorder).

It is frequently linked to instances of power imbalance in violent relationships and can involve workplace abuse, gaslighting, and bullying. It is frequently linked to instances of power imbalance in violent relationships and can involve workplace abuse, gaslighting, and bullying.

OVERALL DEFINITIONS

A single definition of Emotional abuse is: “any act including confinement, isolation, verbal assault, humiliation, intimidation, infantilization, or any other treatment which may diminish the sense of identity, dignity, and self-worth.” Researchers refer to Emotional abuse as “chronic verbal aggression” or Psychological assault. Individuals who experience emotional abuse frequently exhibit extremely poor self-esteem, personality changes (such withdrawing), and sometimes suicidal thoughts or feelings.

Here are some facts on emotional abuse:

1. 48.4% of women and 48.8% of men report having at least one intimate partner act in a psychologically hostile manner.
2. In their lifetime, 4 out of 10 women and 4 out of 10 men have encountered some sort of coercive control from an intimate partner.
3. 17.9% of women report having been the victim of an intimate partner’s attempt to prevent them from seeing friends and family.
4. 18.7% of women report that an intimate partner has threatened to hurt them physically.
5. 95% of males who mistreat their intimate relationships physically also mistreat them mentally.
6. Compared to women who earn less than 65% of their households’ income, those who earn 65% or more of their income are at a higher risk of experiencing psychological abuse.

Abuse directed at a woman in the home has multiple dimensions. Emotional or psychological abuse, classified as verbal abuse under the Protection of Women from Domestic Violence Act, 2005, is defined as insults, ridicule, humiliation, name-calling, and insults specifically related to not having a child or a male child and repeated therein so as to cause physical pain to any person in whom the aggrieved person is interested. Psychological abuse represents a significant category of maltreatment experienced by women. Here are a few instances of emotional abuse:

• Allegations or criticism of her behavior or character, etc.

It is now well-established that if any accusations against the character of a spouse are made without any supporting evidence and are based solely on suspicion, either the wife or the husband may make such allegations. In such cases, false claims of an extramarital affair amount to mental abuse, and this will be a valid reason to treat the husband’s actions as sexual abuse under this Act or to grant a divorce in accordance with Section 13(a) of the Hindu Marriage Act.

•  Disregard for failing to bring a dowry, etc.

When the woman twice paid the dowry that the husband and his mother had demanded. After receiving severe beatings, the wife was banished from the married residence. Despite her many insults, the wife made it apparent that she was ready and willing to return to her husband, but he refused to accept her. So, attempting to capitalize on his own mistake, the husband attacked her for failing to provide the dowry. In a Delhi instance, the wife was being treated poorly by her husband’s family, who had agreed to pay a dowry. However, their avarice continued even two years after the marriage, and numerous demands for additional money were made: When their demands were not met, they resorted to filing a petition and looking for dowry elsewhere in order to get rid of her. The spouse had no right to redress because he was obviously abusing his own wrongs. In one instance, it was decided that the husband shouldn’t be permitted to profit from his mistakes and that he never tried to accommodate the reasonable demands of the wife, which is equally essential to the marriage’s stability.

•  Disregard for not having a boy child

The husband argued that the plaintiff wife was the one who had insisted on seeing his second partner because, among other reasons, she had given birth to a daughter and believed her husband should produce sons, which is conceivable with a different lady. The story seemed implausible at first glance, leading the trial court to conclude that it was not credible. The need of a son to a Hindu for spiritual benefit—who can provide a funeral cake and the release of his ancestors—must not be given the weight that the court feels it deserves. Should it become essential, the respondent is able to adopt a son.

• Disrespect for not having children

When the wife was frequently ridiculed by her husband for not having a child, even though it was possible for her to have one through another woman. It is likely that the husband is not in good enough health to carry on the child’s genetics. The husband’s account should not be accepted by the court. The Court is not allowed to give a Hindu man’s son’s need for spiritual benefit the weight it deserves. Should it become essential, the respondent is able to adopt a son.

• Preventing the partner from starting a career

The practice of preventing a wife from starting her employment at the workplace must end because it is incompatible with a woman’s honor and dignity. It is a type of sex discrimination that a husband may use to justify his wife’s rejection or submission of unwanted sexual advances, requests for sexual favors, or other verbal or physical behavior that she may encounter at work and that could have an adverse effect on her job or performance or make the workplace intimidating or hostile for her. In actuality, these occurrences transgress her basic rights to life, liberty, and gender equality. India participated in a number of international conventions on the topic. All State parties are directed to take necessary action to defend women’s honor and dignity as well as the International Covenant on Economic, Social, and Cultural Rights by the Beijing Declaration on Women and the Convention on the Elimination of All Forms of Discrimination Against Women, both of which were adopted in 1979. The Supreme Court noted that when there is no contradiction between the international treaties and no gap in domestic law, the courts have a duty to ensure that the meaning of those instruments is not lost.

Notable instances of domestic abuse in India

Lalita Toppo v. the State of Jharkhand, 2018

Specific facts of the Case:

This case, Lalita Toppo v. the State of Jharkhand and Anr. 2018, was heard by the Supreme Court of India. In this case The Complainant, who was not the Respondent’s lawfully wedded wife, approached the court to obtain maintenance under the provisions of the Protection of Women from Domestic Violence Act, 2005, assuming that she would not be allowed to do so under Section 125 of the Code of Criminal Procedure, 1973. The appellant in this case lived with her partner and had a child together. Following their divorce, the appellant asked her spouse for maintenance, which the Gumla Family Court granted, granting her Rs. 2000 per month plus an additional Rs. 1000 for her kid. The appellant filed an appeal with the High Court, which upheld the partner’s position and declared the family court’s decision to be invalid. The Supreme Court was then consulted by the appellant.

Issue:

1. Is it acceptable for a cohabiting partner to seek maintenance under the 2005 Domestic Violence Act?

Verdict delivered by the court

A three-judge panel of the Supreme Court, which included Justices U.U. Lalit, K.M. Joseph, and the then-CJI Ranjan Gogoi, pointed out that a live-in partner would be entitled to even more relief than that provided under Section 125 of the Code of Criminal Procedure, 1973. The bench mentioned the provisions of the Domestic Violence Act and pointed out that even though the petitioner in this case is not the legally wedded wife and is therefore not entitled to maintenance under Section 125 of the Code of Criminal Procedure, she would still have the option to seek maintenance under the Act.

The Court further noted that economic abuse is included in the definition of domestic violence under the Domestic Violence Act.

Inder Raj Malik and Ors vs Sunita Malik, 1986 RLR 220

Specific facts of the Case:

Sunita Malik, the complainant in this case, was married to Inder Raj Mailk, the respondent. Following her marriage, her husband and in-laws mistreated and made her starve, beaten and abused Complainant Sunita in order to obtain an increasing amount of money and things, especially at festivals. She was physically and psychologically abused in her wedded home one day to the point of fainting, but no doctor was called for her checkup.

Her mother and brother-in-law threatened to kill and kidnap Sunita Malik if she didn’t force her parents to sell their Hauz Qazi property. It was so found that Sunita Mailk, the complainant, had been subjected to physical and cruel abuse at the hands of her in-laws and spouse. In order to compel Sunita Malik or anyone connected to her to comply with an unlawful demand for both moveable and immovable property, she was tortured.

Issue:

1. Is Article 20(2) of the Indian Constitution’s Double Jeopardy clause applicable to Section 498A of the Indian Penal Code, 1908, and Section 4 of the Dowry Prohibition Act, 1961?
2. Is Indian Penal Code, 1908, Section 498A ultra vires?

Verdict delivered by the court

The Delhi High Court had to determine in this specific case if someone may be found guilty under Section 4 of the Dowry Prohibition Act and Section 498A of the Indian Penal Code. The Court decided that a person is not subject to double jeopardy if they are found guilty under both Section 4 of the Dowry Prohibition Act, 1956 and Section 498A of the IPC. The Court determined that Section 498A, the Indian Penal Code, and Section 4 of the Dowry Prohibition Act are separate laws because, while an act of cruelty against a newlywed woman is punishable under Section 4 of the Act, the simple demand of dowry is not.

Therefore, it can be said that Section 4 of the Dowry Prohibition Act and Section 498A of the Indian Penal Code both allow for prosecution of an individual.

The Protection of Women from Domestic Violence Act, 2005

The goal of the Domestic Violence Act of 2005 was to give women who are the victims of domestic violence—regardless of the type—effective protection. Women have the right to housing security and the right to live in their married home under the contested legislation. The law also gives the magistrate the authority to issue protective orders that will aid in dealing with domestic abuse crimes. By virtue of this legislation, Protection Officers will be appointed to help victims with medical examinations, getting legal aid, finding secure locations, and other appropriate legal remedies.

Here, it would be appropriate to paraphrase the court’s decision in Rupali Devi v. State of Uttar Pradesh and Others, which stated that cruelty is defined as the deliberate and malicious infliction of bodily or psychological harm on a woman. Both mental and physical abuse are considered forms of cruelty. Understanding the meaning of the term “cruelty” as it appears in Section 498-A of the Penal Code requires taking into account the effects on the wife’s mental health as well as the emotional stress or trauma of being forced to leave the matrimonial home.

CONCLUSION

A very promising piece of legislation that combines civil and criminal penalties to provide effective remedies for women who become victims of domestic violence is the Domestic Violence Act, 2005, along with the provisions of the Indian Penal Code, 1860. In order to help women defend themselves and their loved ones, the Act includes provisions for protection officers, medical facilities, and free of charge orders, among other things. But there are certain shortcomings with the Act. It is obvious that the Act has to be better implemented. Human Rights Watch claims that police regularly fail to file a First Information Report (FIR), which is the initial step in opening a police investigation, particularly when the person who has been wronged comes from a low-income or socially disadvantaged area.

It is also true that the Domestic Violence Act is usually misapplied when it is used, and it has not addressed the problems that both men and women face when it comes to domestic abuse. More gender-neutral legislation are needed in society to treat men and women equally in cases of domestic abuse, as opposed to most men who incite fear in the hearts of innocent people and provide the other gender a weapon of extortion. The Domestic Violence Act seems to be discriminatory towards women on the surface. More gender-neutral provisions should be added to the Domestic Violence Act in order to stop its abuse and advance fairness, equality, and equality between men and women.

REFERENCES

1. https://www.lexico.com/definition/domestic_violence
2. https://blog.ipleaders.in/protection-of-women-from-domestic-violence-act/
3. https://blog.ipleaders.in/analysis-of-provisions-related-to-cruelty-in-marriage/
4. https://www.amicusx.com/post/_498a
5. https://www.ncbi.nlm.nih.gov/pmc/articles/PMC2784629/
6. https://www.legalservicesindia.com/article/1754/Abuse-of-Domestic-Violence-Act.html
7. https://en.wikipedia.org/wiki/Protection_of_Women_from_Domestic_Violence_Act,_2005
8. https://blog.ipleaders.in/top-10-domestic-violence-cases/