This article is written by Ms. Ayushi Yadav, a B.A.LLB 3rd year student of Llyod Law College, Greater Noida.

Abstract

Domestic Violence is a pervasive and distressing issue that significantly impact divorce cases. This study examines the profound impact of domestic violence on divorce cases, delving into the complexities it introduces within legal proceedings and the lives of those involved. Through a comprehensive analysis of existing literature, legal precedents, and real-world cases, the research aims to illuminate the multifaceted repercussions of domestic violence within the context of divorce. The study considers its effects on child custody, spousal support, and the overall dynamics of divorce proceedings. By exploring the intersection of legal, psychological, and societal dimensions, this research contributes valuable insights to both academic discourse and practical legal considerations. Nobody knows what goes on in a marriage behind closed doors. From the outside, what may seem like a happy, loving couple may actually be harbouring a deadly secret – violence and abuse. Abuse in marriages should not be tolerated. Many seek a divorce to end the abuse they are suffering, but leaving a violent spouse is not always as easy as signing a court document.

INTRODUCTION 

What is Domestic Violence?

• Domestic violence is defined as a violent control exercised by one individual over another. It is also referred to as building control and terror in a relationship via various sorts of abuse. Torture can be psychological, sexual, economic, or physical. This is not merely a social issue; it is also a major violation of human rights, exposing the victim to health and social consequences. The United Nations defines it as “intimate partner violence,” which occurs when one person in a relationship uses threat, mental abuse, manipulation, trying to hurt, injury, or financial abuse to take control of the other, and whose victim can be anyone, irrespective of age, gender, race, sexual orientation, class, or belief.
• According to Section 3 of the Protection of Women from Domestic Violence Act of 2005 (DV Act), any act or omission by the Respondent that damages, injures, threatens, or abuses physically, sexually, verbally, or economically constitutes domestic violence.

 

What is Divorce?  

• According to Hindu Marriage Act, 1955 Divorce is the separation of both the parties in the marriage. In the recent times the rate of Divorce has increased largely due to various reasons. So, as per the Hindu Marriage Act, 1955 the grounds on which the parties to the marriage can file a Divorce petition in the court of law.

• Section 13 of this Act deals with the conditions of Divorce amongst the Hindu marriages. According to Sec 13(1) any marriage solemnized whether before or after the commencement of this Act can file a petition for divorce which is presented either by the husband or the wife that may be dissolved by a decree of divorce. However, for obtaining the decree of divorce.

 

TYPES OF DOMESTIC VIOLENCE 

1. Physical abuse

Physical assault or abuse, beating, and taking advantage by criminally intimidating the grieving partner. This can lead to the ground for domestic violence divorce.

1. Sexual Abuse

Any kind of force or assault used in intimate situations. Forceful usage of immoral activities and videos; using actions with her to entertain others and other types of forceful sexual relations, which is humiliating and degrading for the grieving individual.

It can be used as a ground for domestic violence divorce, and the grieving party may hire a divorce lawyer to understand and take correct legal action against the accused.

Emotional or Mental Abuse

Accusing the woman of a bad character or immoral motives. Thrashing or torture for a male child and insult when the inability to do so.

Career and educational barriers and threatening terms when they make their own    decisions.

Prohibitive behaviour from going out of meeting family or friends. It is also a reason that contributes to domestic violence and divorce.

Domestic Violence and Economic Abuse

A person committing “domestic abuse” might pressure their victim to leave home or arrange for dowry from parents or any relative or known person. Asking for their jewellery and other personal effects of their addictions.

Refusing to provide cloth, food, medicine, or education. Misusing Stridhan for their bad habits. Non-economic and behavioural traits and taking their money or salary by force can make the grieving party opt for domestic Violence divorce.

Laws that deal with domestic violence cases

In India, there are various laws that specifically address the safety of married women from their partners and their partners’ families

.

Protection of Women Against Domestic Violence Act, 2005 

This is a law passed by the Indian Parliament to safeguard women from domestic violence. It outlaws a wide spectrum of bodily, sexual, emotional, and financial abuse against women, all of which are explicitly defined by the Act. It protects women from men of the family. The Act’s scope includes not just the protection of women who are married to men, but also women who are in live-in relationships, as well as family members such as grandparents, mothers, and so on.

The Dowry Prohibition Act, 1961

This is a criminal code that punishes the gift and receiving of dowry. The Dowry Prohibition Act of 1961 outlaws the practice of dowry. If a person provides, accepts, or even asks for dowry, they can be imprisoned for a half year (i.e. for 6 months) or fined up to 5,000 rupees.

Section 498A IPC

This is a criminal law that applies to spouses or husband’s relatives who are cruel to women. Harassment for Dowry by relatives of the husband or by the husband is a crime under Section 498A of the Indian Penal Code 1860 (IPC). Harassment may take many forms, both physical and mental. Although Marital Rape is not a criminal offence in India, coerced sex with one’s wife might be deemed as ‘cruelty’ under this Section. Section 498A covers a wide range of topics. It also encompasses any and all purposeful behaviour against a woman that forces her to commit suicide or places her life, limb, or overall health in danger. In this context, health refers to both the physical and mental health of women.

Is domestic violence a ground for divorce?

Depending on where you live, a divorce may be filed as either “Fault” or “No-fault.”

1. What is a Fault Divorce? 

Fault means that one party is claiming the other as responsible for the breakdown of the marriage.

If filing for a “Fault Divorce,” the following instances would qualify as legal grounds for divorce:

✓Adultery

✓Being legally separated/Living separately for a minimum of one year

✓Mental or physical cruelty / Domestic violence / Divorce abuse in marriages

 

What is a No-Fault Divorce? 

A no-fault divorce means that the dissolution of the marriage does not require either party to admit to wrongdoing.

In this instance, whether domestic violence was present in your marriage may not matter when it comes to the court granting a divorce.

Impact of Domestic Violence in Divorce Cases

Domestic violence can affect the decisions regarding child custody, spousal support, and property division.

1. Child Custody

When deciding on child custody, the child’s safety is prioritized. The courts want to ensure that neither the child witnesses nor the spouse remains at risk of domestic violence. A history of domestic violence affects both the physical custody and the allowed parenting time of the spouse guilty of domestic abuse.

In most cases, the abusive spouse is not granted physical custody. Their child custody rights are also reduced, for instance, by the prohibition of overnight visitation. However, custody rights are not entirely diminished unless the violence is directed towards the child.

The spouse concerned for their safety can appeal visitation protections, such as supervised visitation call or limiting visits to public places. In supervised visitations, a third party is present during the entire visitation period of the abusive parent and child, where the abusive parent is responsible for paying the supervisor’s fee.

1. Spousal Support

Alimony or spousal support is court-ordered financial support paid by one spouse to the other for a specific period. Following are the ways in which domestic abuse can affect alimony:

Exemption

Some states allow flexibility and exempt the spouse from alimony if the domestic abuse affects their ability to be financially independent. For instance, if an injury resulting from domestic abuse prevents the spouse from going to work, they can be entitled to alimony.

Prohibition

It works the other way too. For instance, reduce or prohibit alimony altogether for the spouse guilty of domestic abuse. It is important to note that all states do not consider domestic abuse when deciding on alimony.

Property Divisions

Married couples deciding on divorce must figure out property issues. They have to split up their assets and property, like their house, money, and belongings. This is known as property division. Domestic violence makes the court decide things in a different manner.  It may give more of the shared property and assets to the person subjected to abuse. This is done to ensure fairness. It provides some compensation for the suffering they endured.

The effect of domestic abuse on property division varies from state to state. Generally, the abuser receives a lesser portion of the marital estate.

Different State Approaches

Some states only consider domestic violence in property distribution if the violence has directly contributed to marital breakdown.

Similar to alimony, some states consider domestic violence in property distribution if it affects the spouse’s ability to be financially independent.

In some jurisdictions, only “egregious” – severe or extreme, domestic abuse is taken into account. States that follow the principles of no-fault and don’t consider domestic violence altogether.

Emergency Orders and Restraining Orders

• Restraining orders, also known as protective orders or injunctions, are civil orders designed to protect individuals experiencing domestic violence from their abuser. An individual may usually receive a temporary restraining order (TRO) from a domestic violence court in an abbreviated period of time and without a full court hearing or confronting their alleged abuser in court, but long-term restraining orders almost always require a full hearing with both parties.
• If the domestic violence issue is not an imminent threat, and a divorce case is pending in family court, an individual may file an emergency motion for protection in family court. An emergency protection motion can also be helpful in instances in which there has been no past domestic violence, but an individual fears that their spouse may retaliate during the divorce. However, a family court judge will likely ask for evidence in the form of a sworn statement or a full evidentiary hearing before granting such an order.
• Judges have discretion in how exactly a restraining order or emergency order will protect an individual experiencing domestic violence. The order may impose such restrictions as refraining from physical or non-physical contact, keeping a certain distance from the person experiencing domestic violence or their workplace, school, or home, or ceasing to commit or threaten to commit domestic violence. If the parties live together, the order may evict the alleged abuser. In some instances, the order may prevent the alleged abuser from possessing or purchasing firearms. The order may also protect minor children in danger of experiencing domestic violence.

How Can Domestic Violence Affect the Divorce Mediation Process?

Divorce mediation is like a way for people who don’t want to live together anymore to work out their problems. It’s sort of like sitting down and talking with someone to figure out how to split things up and move on. But when there’s domestic violence in the picture, things can get really complicated.

Not Fair: Imagine if one person is being really mean to the other. It’s like they’re not playing by the rules. This can make it very hard for the person who’s being treated badly to talk about things in a fair and equal way during mediation. It’s like trying to have a fair game, but one player keeps cheating. This unfairness can make it tough to agree on what’s best for everyone.

Not Safe: Now, safety is super important. If someone is scared of the other person because of domestic violence, it’s not safe for them to talk together during mediation. They might worry about getting hurt or feeling really, really sad. It’s like trying to have a conversation with a big, scary monster in the room.

What to Do: So, what do you do when domestic violence makes mediation not fair or safe? Well, you need to understand that there are other ways to solve problems. You don’t have to do it in the same room with the person who’s causing harm. You can get help from a lawyer, who is like a legal expert, or you can ask the court for a special order to make sure everyone stays safe.

Ask for Help: It’s a smart idea to talk to a lawyer who knows a lot about family problems and violence. They can help figure out what’s best for you and your family. They know the rules and can make sure everyone stays safe during the process.

Domestic violence can make divorce mediation really hard because it’s not fair or safe. But there are ways to make sure everyone is protected and things are done the right way, like getting help from a lawyer who knows what they’re doing.

Conclusion

• In conclusion, the impact of domestic violence on divorce cases is far-reaching and intricate. Our analysis underscores the urgent need for legal frameworks that prioritize the safety and well-being of victims, particularly in the realm of child custody decisions. Furthermore, it emphasizes the importance of a nuanced approach by legal professionals, considering the unique circumstances of each case. As society grapples with evolving perspectives on domestic violence, the legal system must adapt to provide equitable solutions and support for those navigating the challenging terrain of divorce in the presence of domestic violence.
• With changes in law and obligations, domestic violence and abuse are taken seriously, and people can consider talking to a divorce lawyer or a professional counselor to help them with documents and further reasoning. 
• A marriage is meant to be a place of love, trust, and care, not violence or fear. Domestic violence should never be tolerated within a relationship built on trust and respect. In recent time Divorce is the necessary process for living in the safe Environment.
• Divorce after domestic violence can happen to anyone. Both men and women are intimate partner’s violence and divorce due to abuse.
• Types of domestic violence include control, sexual, emotional, economic, or verbal abuse, as well as physical violence.
• When divorcing an abusive spouse, Fault or No-Fault divorces will determine whether or not domestic violence is grounds for divorce. Check your local laws to see what to file for in your area.
• Keep records, photos, and recordings of divorce abuse in your divorce strategy. This will be invaluable evidence when filing for divorce or protection order.
• Stay safe when experiencing divorce abuse in marriages. Use police intervention when necessary, plan an escape, inform loved ones of your intentions to leave your spouse, and have a safe place to live after separating.
• The Domestic Violence Act/divorce protection order is intended to help victims leave their abusive spouses. Look into what orders are available in your areas to help keep you safe.
• You can apply for a protective order when divorcing an abusive husband by contacting your judge, lawyer, or in some cases, calling your order over the telephone. To gain this order, you must have lived with your partner.
• Accusing your spouse of domestic violence does not always guarantee a fair division of assets or child custody.

References

1) https://www.legalserviceindia.com/legal/article-5032-divorce-as-per-section-13-of-hma-1955.html#:~:text=Section%2013%20of%20this%20Act,by%20a%20decree%20of%20divorce.

2) https://www.legalserviceindia.com/legal/article-12573-domestic-violence-and-divorce-in-india-protecting-yourself-and-your-children.html

3)https://www.jstor.org/stable/25804911

4)https://www.indiacode.nic.in/bitstream/123456789/15436/1/protection_of_women_from_domestic_violence_act%2C_2005.pdf