sDOMESTIC VIOLENCE LAWS IN INDIA

September 21, 2023

This article has been written by Payodhi Daschaudhuri, a student of 2nd Year, BA LLB, Adamas University

INTRODUCTION

According to the National Family Health Survey (NFHS), more than 30% of women in India have experienced domestic abuse at some time in their life. Despite this, approximately 75% of people who reported being victims of domestic abuse did not seek treatment. Those who do, by confiding in close family members, typically have the crime dismissed as a private or familial affair that does not necessitate outside legal involvement. This reaction has the potential to trap women in violent circumstances. Researchers performed a cross-sectional study on gender-based violence against males in rural Haryana, India. Throughout the course of this inquiry in 2012, a year’s worth of data was gathered. In this community-based, cross-sectional study that employed multistage random sampling, 1000 married males between the ages of 21 and 49 were questioned using a modified conflict tactics scale. In contrast, the outcomes were unexpected. Gender-based violence was reported by 52.4 percent of the men in this study. 51.5 percent of 1000 males had been assaulted by their wives/intimate partners at least once in their lifetimes, with 10.5 percent having experienced it in the last 10 months. Emotional abuse was the most common type of domestic and family violence, accounting for 51.6 percent of all incidents, with 6 percent cases of physical cases. Domestic violence affects both men and women equally. For the most part, society has assumed or predicted that men are strong and powerful, and that they prefer to keep their emotions locked up inside. If they show or divulge their flaws, they are labelled as weak or girlie, among other derogatory terms.

TYPES OF DOMESTIC VIOLENCE IN INDIA

The types of domestic violence which are prevalent in India ranges from physical abuse, mental abuse as well as verbal abuse along with economic abuse:

Physical Abuse: The most apparent type of domestic violence against women is physical assault. The Domestic Violence Act defines domestic violence as any act that causes bodily pain or endangers the victim’s life, limb, health, or development. Physical abuse includes assault, unlawful force, and criminal intimidation. Relevant examples in this regard can be beating, slapping, hitting, biting etc.
Sexual Abuse: Sexual violence against women is a kind of sexual/reproductive coercion. In general, marital rape should be considered sexual abuse. However, marital rape is not illegal unless the woman is under the age of 15. The Domestic Violence Act defines sexual abuse as “any sexual abuse that abuses, humiliates, degrades, or otherwise violates the dignity of a woman.” Relevant examples of sexual abuse are forced sexual intercourse, child sexual abuse etc.
Verbal Abuse: During domestic violence against women, verbal abuse comprises remarks/threats made by domestic relations. From a human rights standpoint, verbal abuse leads to emotional abuse, which is an extremely widespread type of domestic violence. A woman’s sense of self-worth is eroded when she is subjected to both verbal and emotional abuse. Relevant examples of verbal abuse are insults, name-calling, false accusations, insults for not bringing dowry etc.
Economic Abuse: The inclusion of economic abuse in the categories of abuse under the Domestic Violence Act was a significant step forward by the administration. Economic abuse is commonly defined as denying or threatening to deny the victim and her children access to financial resources/assets. Relevant examples of economic abuse are not providing money for maintaining the spouse and her child etc.

LAWS PERTAINING IN INDIA REGARDING DOMESTIC VIOLENCE

As far as India is concerned, 3 main laws are prominent for protecting the masses against the evil called domestic violence. Domestic violence in the family is, sadly, a reality in Indian culture, a cliché. Mistreatment of women became acceptable under the Indian patriarchal system. Domestic abuse can have a variety of causes, which is why India has several laws in place to address it. There are three domestic violence laws in India that deal with punishment and penalties for domestic abuse.

SECTION 498A

When a married woman experiences abuse at the hands of her husband or in-laws, she has the right to launch a complaint against them. As a result, understanding the definition of cruelty is critical for the purposes of this section. In the case of Inder Raj Malik vs. Sunita Malik, it was decided that the word ‘cruelty’ is defined in the explanation which inter alia specifies that harassment of a woman with a view to persuade her or any connected individuals to fulfil any illegal demand for any property or any valuable security constitutes cruelty. Section 498A addresses a wide range of issues. It also includes any and all intentional behaviour directed towards a woman that causes her to commit suicide or puts her life, limb, or general health at peril. In this sense, health refers to both women’s physical and emotional well-being. It is not necessary to establish or put forth that the lady was beaten up to prove cruelty under Section 498A IPC- insulting her verbally, denying her conjugal rights, or simply not speaking to her correctly would come under the scope of mental cruelty. Giving abusers the ‘benefit of the doubt’ or showing pity to them when there is evidence of torture at their hands is utterly unethical. Speaking about the statute, a helpful clause in this section allows the victim’s relatives to make a complaint about the atrocities which the women is facing. This is extremely beneficial in the cases where the women are too afraid to come out and speak or where the woman cannot leave the house.

The Supreme Court declared in Girdhar Shankar Tawade v. the State of Maharashtra (2002) that Section 498A makes it plain that harassment under this Section requires a sequence of occurrences or conduct. Furthermore, there must be some solid evidence to back up the accusation under this Section. The woman in Rupali Devi v. the State of Uttar Pradesh (2019) left the marriage house after enduring significant physical abuse and went to her family home. The Court observed that physical abuse and hence physical cruelty ended once the parties left the marriage residence. However, this did not mean that mental brutality had ceased. Even if there is no overt act of physical cruelty, mental cruelty borne of physical cruelty or violent and humiliating verbal exchanges would remain in the parental household. Reshma Rakesh Kadam v. Rakesh Vijay Kadam (2013), a case of Section 498A was dismissed on the grounds that the prosecution was unable to prove mental cruelty over the wife by her husband and his mother. Instead, the defendant was able to successfully establish that the husband was actually being subjected to cruelty by the wife.

Dowry killings and bride burning are evil practises that persist in Indian civilization. It is a sign of a certain social ailment, and it is one of our society’s sad trends. Section 304B (1) defines dowry death, whereas paragraph (2) specifies the penalty, which is not less than seven years and may amount to life imprisonment.

The Bombay High Court in the case of Smt. Sarla Prabhakar Wagmare v. State of Maharashtra under Section 498(A), I.P.C. observed that not all harassment or every type of cruelty amounts to an offence under Section 498(A). it must be established that the harassment and beating were with a motive to force the wife to fulfil or commit illegal and unreasonable demands of the husband and in-laws. In this case, the court held that there was no proof that the wife was forced to commit suicide or to fulfil the illegal demands of the husband.

SECTION 304

One of the most prominent ways of incorporating violence to a married women is through dowry. Dowry killings and bride burning are evil practises that persist in Indian civilization. It is a sign of a certain social ailment, and it is one of our society’s sad trends. Section 304B (1) defines dowry death, whereas paragraph (2) specifies the penalty, which is not less than seven years and may amount to life imprisonment. Section 304 acts as a safeguard to all those women who face atrocities regarding dowry and related activities in their marital residence.

THE DOWRY PROHIBITION ACT, 1961

The Dowry Prohibition Act primarily addresses concerns around dowry and associated offences in general. Dowry refers to the transfer of parental property at the time of their daughter’s marriage. It is a system of offering financial aid to the groom’s family in the form of money, property, gold, and so on. Dowry was a social evil that spread to a large extent, so in order to abolish the act of providing and accepting dowry, which caused various financial crises for many families in India, the government drafted the Dowry Prohibition Act in 1961, so that there would be an eye of law in regulating such actions involving delivery and acceptance of dowry. The Act contains several provisions pertaining to the term “dowry,” as well as measures dealing to the punishment for dowry offences and the officials who are authorised to investigate such things. The Act also empowers various authorities to set rules and regulations concerning the offering and receipt of dowry. The original content of the Dowry Prohibition Act was deemed ineffective in curbing dowry activities. Furthermore, other forms of violence against women were linked to an inability to meet dowry requirements. As a result, the legislation was amended in the future. It was revised in 1984, for example, to stipulate that gifts presented to a bride or groom at the time of a wedding are permitted. The law, on the other hand, mandated that a record be kept that described each present, its value, the name of the person donating it, and the person’s relationship to either party to the marriage.

In the case of State of West Bengal v. Orilal Jaiswal, the Supreme Court held that the Court must be extremely careful when assessing the facts and circumstances of each case, as well as the shreds of evidence adduced in the trial, in order to determine whether there was cruelty committed on the victim that induced her to end her life by committing suicide. In the case of Ashok Kumar v State of Punjab, it was held by the Punjab and Haryana High Court that the husband could not be convicted under Section 306 and acquitted him on the grounds that there was no proof of the husband was committing cruelty against his wife which removes the presumption of his abetting his wife’s suicide.

“DOWRY” is a deeply ingrained tradition in Indian society that cannot be completely abolished. The mentality, philosophy, and psyche of Indians is a fundamental reason why this practise cannot be removed. The better educated a guy is, and the more secure his financial condition, the greater dowry he receives. Similarly, the parents of females would educate their daughters extensively so that she can marry into a wealthy household. They are not hesitant to provide dowry because it has now become a habit, and despite several rules, only a small number of violators are caught. This societal evil can only be removed if people’s mentalities change.

PROTECTION OF WOMEN FROM DOMESTIC VIOLENCE ACT, 2005

The Protection of Women from Domestic Violence Act (also known as the Domestic Violence Act in India) was passed in 2005. In principle, the Act goes a great way toward protecting women in the home. The Protection of Women from Domestic Abuse Statute of 2005 is a legislative act that was passed in 2005 to protect women from domestic violence. This legislation defines “domestic violence” for the first time, broadening the scope of violence to include not just physical abuse but also emotional, verbal, sexual, and economic abuse. This is a civil legislation for protection orders that is not intended to be used criminally. The Domestic Abuse Legislation is an act that provides for more effective protection of the constitutionally given rights of women who are victims of any type of violence inside the family, as well as things related with or incidental thereto.

Definition of domestic violence law in India is provided under section 3 of the act as “any act, omission or commission or conduct of the respondent shall constitute domestic violence in case: it harms or injures or endangers the health, safety, life, limb or well-being, whether mental or physical, of the aggrieved person or tends to do so and includes causing physical abuse, sexual abuse, verbal and emotional abuse and economic abuse; or harasses, harms, injures or endangers the aggrieved person to coerce her or any other person related to her to meet any unlawful demand for any dowry or other property or valuable security; or has the effect of threatening the aggrieved person or any person related to her by any conduct mentioned in clause (a) or clause (b); or otherwise injures or causes harm, whether physical or mental, to the aggrieved person.”

In the case of Surekha Mote vs Union of India, the court held stated “We examined Sec. 12 of the PWDV Act as well as the proviso to Sec.12. This doesn’t really imply that there will be no protection officers authorized. The Magistrate’s jurisdiction is terminated. That would defeat the purpose of the act”. This implies that even when there is no protection officer, a complaint can be heard directly by the magistrate.

CONCLUSION

The Protection of Women from Domestic Abuse Act of 2005, which went into effect in October 2006, is a promising piece of legislation that combines civil and criminal remedies to provide effective remedies to women who are victims of domestic abuse. Victimized women, their families, and loved ones will be better protected as a result of this law. However, the Act is not without problems. The Act’s execution must be enhanced. Human Rights Watch reported that police frequently fail to file a First Information Report (FIR), which is required to launch a police investigation, especially when the individual who has been harmed is from a financially or socially disadvantaged group. In India, almost all cases of spousal abuse, sexual assault, and marital rape go unpunished. Domestic abuse victims suffer because there aren’t enough trained counsellors to help them, and they don’t have easy access to legal aid. Problems like this must be rectified in order to offer women the justice they deserve.

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