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An Analysis on Domestic Violence Act In India (By-Mahalakshmi Vaishnabi)
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An Analysis on Domestic Violence Act In India
Authored By-Mahalakshmi Vaishnabi
ABSTRACT
domestic Violence is the abuser act of the partner faced by women in her
marital relationship. In every household there the act is committed within the
four walls, which unfortunately are not
known to anyone and are swept under the rug. The domestic violence not only
infringes the human rights but it causes injury to the women physically,
emotionally, mentally . The graph of the
cases of the violence is increasing day by day in such a way therefore there is
an urgent need of strong iron hands to stop the rising of the cases.
Keywords:- Domestic Violence, Human rights, Marital Relationship, Abuse,
Domestic Violence Act, Section 489A.
Introduction
Women
have always been subjected to discrimination since time immemorial. Women are
regarded to be the subordinate group in society and have been the common face
in matters of violence like rape, acid attack, Domestic Violence, etc.
Domestic
violence refers to violence and abuse that takes place during cohabitation or
marriage. It is important to remember that domestic violence is not just
physical, but any kind of behavior that seeks to gain power and control over
the victim. It can affect people from all walks of life. It takes place when a
member of the same family or household engages in aggressive or abusive
behavior toward another.
Physical
abuse is not the only form of domestic violence. Any action taken to exert
dominance and control over the victim is included. People from all walks of
life can be impacted by domestic violence.
Domestic
Violence is a behavior where one partner commits violence against another
leading to the threatening of life and may not always be in a physical manner,
but also in many ways like emotional abuse, psychological ways, etc.
It
is the worldwide silent pandemic, that has been faced especially by women, from
the spouse, from their close relations, with whom, they are cohabiting.. The
domestic violence includes elaborately all forms of actual abuse or the threat
of violence and is also known as ‘intimate partner violence’ . Domestic
violence leads to the infringement of the Human Rights of the women .
Domestic Violence
Domestic violence is abuse in which
one partner uses force against another. Compared to men, women are the more
frequent victims of these crimes. It is the oldest and most widely dispersed
silent pandemic. Domestic abuse has negative impacts on not only women but also
their families. Women are considered to be the homemakers, and they experience
verbal, physical, and psychological abuse.
Domestic violence frequently targets
women and children as easy prey. A horrific crime, domestic abuse affects women
psychologically, physically, and emotionally. The dependence on men for
financial support and illiteracy are two of the most frequent causes of marital
violence.
Male-dominated societies play an
important role in this matter. In India, dowry is also one of the main causes
of violence against newlywed brides. Women are often physically attacked or
made appalling remarks.
Moreover, children are often the
victims of this inhumane behaviour. It is important to understand the double
standards and hypocrisy in society
According to WHO, (World Health
Organization)[1] at least one in five women have even
physically or sexually abused by the partner at some point of time in her
life. It is generally a part of pattern
of an abusive behavior and control rather than isolates acts of physical
aggression.
Domestic violence is a form of
gender-based violence that makes women suffer from Post Traumatic Stress
Disorder ( a mental disorder that usually occurs after a traumatic event.) and
Battered Women Syndrome (a psychological condition that explains a pattern of
behavior that appears in victims of domestic violence after severe, prolonged
abuse) is a pattern of symptoms and
indications that a woman has endured chronic relationship abuse from her male
partner, whether it be psychologically, physically, or sexually.
Violence within marriages in India,
is often associated with the dowry , a practice, where the spouse of the family
members, demands money or property from the women’s family . Dowry demands escalate into harassments, threats , and
abuse , in extreme cases the women is killed or driven to suicide , freeing the
husband to pursue another marriage and dowry . Most of the time ,
societies justify domestic violence as a
form of control the wife.
Domestic Violence is referred as the
silent crime , as women , are unable most of the time to raise her voice, due
to shame, fear of further abuse on the themselves or on their children and lack
of opinions.
Family honour , lack of support
systems etc , the gravity of the problem together discourage women for
reporting , or seeking help for inter- spousal abuse.
It is not always easy for a person to
know that she is in an abusive relationship, as the abuser may hide his
behavior or character in the early stages of the relationship. Often,
controlling behavior and abusive behavior do not show up until the bonds of the
relationship are strong.
Although all relationships are
different, most abusive relationships have one thing in common: the abusive partner
takes action to gain more control other person.
In
addition to having a negative impact on the victims, domestic violence also has
a significant negative impact on the family, friends, coworkers, other
witnesses, and the community at large. Those who have witnessed domestic abuse
as children are among those who are most impacted by this crime. Frequent
exposure to domestic violence increases the likelihood that children will grow
up to be victims and perpetrators of abuse in society because it not only
exposes them to a wide range of social and physical issues, but also will lead
to them belief that violence is a normal part of life.
The phrase "domestic
violence" is defined in “Section 3” of
the “Domestic Violence Act of 2005”[2] Domestic violence is any act,
commission, omission, or behaviour on the part of the respondent that deprives
their partners of their rights. Economic, physical, emotional, and mental abuse
are a few examples. Section 498A of the “Indian Penal Code” (1860) defines
matrimonial cruelty as "husband or relative of spouse of a woman
subjecting her to cruelty."
Causes Of Domestic Violence.
The reasons for domestic violence are
a subject of great debate. These includes social theories that take into
consideration the external elements in
the perpetrator's environment, such as family structure, stress, and social
learning, as well as psychological theories that include the personality and
psychological traits of the perpetrator, as well as the victim. There isn't any
approach to deal with it that seems to encompass all the scenarios, like most
issues relating to the human experience.
There are various beliefs regarding
what motivates someone to harm a close friend or family member, and there are
growing domestic violence cycles (a repeated
cycle of abuse ) that pass down from one
generation to the next.
This encompasses paranoid and
passive-aggressive personality disorders among others. Mood swings, drug
misuse, alcoholism, schizophrenia, bipolar disorder, and other conditions are
also the conditions .
Behavior
Most
people possess an aggressive behavior that is common to all and this immoral or
violent behavior a plays a key role in violence
Mental Illness
Mental
illness are a risk factor for domestic violence, which includes several
personality disorders: paranoids and passive-aggressive. Bipolar disorder,
schizophrenia, drug abuse, alcoholism, and mood swings are also dangerous
factors. It is estimated that at least one third of all abusers suffer from
some form of mental illness.
Social Depression
Social
stress, due to insufficient money or other such family problems may contribute
to tensions.
Who Are The Victims?
Victims
are defined as people who, individually or collectively, have suffered harm,
including physical or mental injury, emotional suffering, economic loss,
or impairment of their fundamental
rights, as a result of acts or omissions that are in violation of criminal laws
in effect within member States, including those who have been hurt
physically, psychologically, or emotionally as a result of the abuser's actions
or any other occurrence. Victims of
domestic violence can be from any
social, racial or ethnic group. Anyone relating to the victim [2(wa) of Crpc[3]],
either family, friends, acquaintances etc can be victim.
Who Are The Evildoers?
The
perpetrators also belong to any social and economic group, race or ethnic
group. They may have been abused as children or may have witnessed parental or
other family members abuse. They express the pattern of jealousy and control by
being divisive, threatening, and intimidating behavior on their partners.
They
may view their partner as an asset in their presence. The abuser not only cover
the ambit of
the
definition of the evildoers but also the relatives, the family will be covered
under the definition of the abuser or the evil doers.
Types Of Abuses
Physical
Abuse: Direct physical aggression such as choking, slapping, punching, kicking,
moving or pushing, which may involve the use of objects. Physical abuse
includes throwing objects, refusing food, and destroying property.
Mental
or emotional abuse: blaming or ignoring (“insulting”) a person, treating a
person as inferior, calling that person’s behavior inappropriate, questioning
their true selves, criticism, or threats of suicide. Perpetrators can also
hide, spy on, or track the person, including monitoring emails and calls, and
using GPS tracking.
Social
Isolation: Isolate the victim from family and friends. Prohibit or prevent contact with them and
insult family and friends.
Financial
Abuse: Maintaining control of household finances or restricting access to bank
accounts, salaries, or pensions, giving "little money", hiding
assets, making them unable to work, interfering with discussions or meetings,
stealing.
Child
abuse: physical and sexual abuse, neglect, child verbal and emotional abuse.
Adult
abuse: similar to child abuse but directed at adults.
Neglect:
often a failure to meet the basic physical or mental needs of the caregiver,
such as a child. This may include failing to protect them from physical harm or
injury or preventing them from receiving medical care. It can also be the
neglect, or non-response, of another person's basic emotional needs. Anyone in a community can be impacted
by domestic abuse irrespective of their status, income, gender, age, colour, or
culture. The majority of the perpetrators are men, while the majority of the
victims are women and children.
Anger, both verbal and physical, is a
hallmark of conflicts between victims and their relationships. The frequency of
violence in media, such as movies, TV shows, and video games, directly affects
the culture of violence.
Domestic Violence In India
It has been stated that India possess
a patriarchal society , which means that India possess a male dominating
society. Domestic violence in India includes all forms of violence perpetrated
by biological relatives, but usually includes violence perpetrated on women by
male family members or relatives.
The domestic violence takes place in
many ways like during the birth of a girl child most of the times the mother is
abused in the mental, physical and emotional way by her in-laws as well as her
partners.
Another feature of India's
patriarchal society is the paying of dowries. Despite being illegal since 1961,
this practice is still practiced in India today, and, shockingly, dowry cases
have increased significantly in recent years. As well as gender difference and
women's role in reproductive decisions, there are significant connections
between strong patriarchal family systems and limited women's competence and
agency. It has a close relationship with elements like starvation that fuel
leading to the domestic violence.
In India, domestic abuse against
women occurs every minute. Recent years have seen a sharp rise in domestic
violence instances, particularly during pandemic lockdowns.
And it is climbing to the point where it may soon cross the graph's highest
last line.[4]
A
research found that in India, 27% of women have experienced abuse since the age
of 15. Violence against women occurs more frequently in rural than in
metropolitan regions. The number of domestic violence cases that have been
reported is increasing, and there has been a significant shift in that number.
Commission
of crimes in India takes place every 1.7
minutes, while they become victims of domestic abuse every 4.4 minutes,
according to the Crime in India Report 2018.. It is also at the forefront of
violence against women, according to the report. According to the data, 89,097
cases of crimes against women are registered throughout India in 2018, with
more than 86,001 cases registered in 2017. In 2021, the complaints shot up to
44% which means to 11,084 compared to 7,715 in the previous year.
Legal Provisions On Protection From
Domestic Violence In India
Many laws have been seen coming out
in order to protect from violence . in order to curb down from the violations
of rights of the women to make the life smooth and violence – free.
Domestic Violence under Constitution
of India
According to Article 21[5], taking away the life, liberty is
violation or infringement to human right , The Delhi High Court had to
determine whether a person may be found guilty in this particular case under
both Section 4 of the Dowry Prohibition Act and Section 498A of the Indian
Penal Code. The Court ruled that a person might be found guilty under both
Section 4 of the 1956 Dowry Prohibition Act and Section 498A of the IPC without
risking a second conviction. According to the court, Section 4 of the Dowry
Prohibition Act and Section 498A of the IPC are separate laws since in Section
4 of that law, merely demanding dowry is illegal, whereas in Section 498A,
cruelty perpetrated against a newlywed lady.[6]
According to the Supreme Court's
ruling in Francis Coralie Mullin v. Union Territory Delhi, Administrator[7], any conduct that damages an organ
or intellectual property, whether temporarily or permanently, is prohibited by
Article 21[8].
The term of physical abuse in the
Act, which includes domestic violence[9], incorporates this right. (therefore
there is a penalty under the Act). Acts or unavoidable behaviors that
physically hurt, injure, endanger the health, limb, or development of the
wounded person are considered to be physical abuse. In addition, the definition
of domestic abuse in the Act encompasses the same acts of physical violence as
well as particular acts of physical violence as indicated in the Indian Penal
Code[10].
2. Right to dignity (Article 21):
In several cases, the Supreme
Court upheld its stance and rendered decisions in line with this proposition,
emphasizing that the right to life encompasses the right to life with dignity.
The right not to be offended will also be included. Both sexual harassment and
emotional abuse fall under the categories of what is meant by the right to
life.
The idea that emotional abuse counts
as domestic violence is a commendable aspect of this statute. The recognition
of a woman’s sexual abuse as a form of infidelity is justified, especially as
such sexual harassment is not considered by the Indian Penal Code[11]
as a crime.
Royappa v. State of Tamil Nadu[12], any illegal action is considered to be a violation of
Article 14 as well. This principle is important in establishing free will in
the exercise of State power and in ensuring that no citizen is subject to any
discrimination. At the same time, it preserves the State's authority to
legislate for a particular class of people.
National Commission for women
established under the Protection of Human Rights Act[13] is the statutory body that provides
voice on the women’s issues as well as also provides the advise to the
government regarding the policies for the women’s development .
Domestic Violence Act 2005
Who Can Avail Remedies Under Domestic
Violence Act, 2005?
Section 2(a) of the Act defines an
aggrieved person as a “woman” who is or has been in a “domestic relationship”
with the perpetrator and who alleges to have been subjected to any act of
domestic violence by the perpetrator.
Against Whom A Remedy Is Available?
Section 2(q) of the Act defines
respondent as persons who can be treated as perpetrators of violence against
women. The definition is not limited to
adult male persons but also includes women and non- adult males. The “Relative”
of husband or the male partner include females. Legislature never intended to
exclude female relatives from the ambit of complaints which can be made under the Domestic Violence Act 2005.
The major remedies available under
the act are as follows:
1. Right To Reside In A Shared
Household (Section 17& 19)
Domestic violence occurs when a woman
is physically or verbally ejected from her home while still in a marital
relationship. By forbidding the respondent from evicting or excluding the
aggrieved person from the common household, Section 17(2) protects the women.
According to Section 17(1), regardless of whether she has any rights, titles,
or beneficial interests in the shared
household, every woman in a domestic
relationship (marital relationship) has the right to live there. Similar to
this, the relief of residence orders under Section 19 of the Act, which
prohibits the respondent or the perpetrator from taking the aggrieved person's
possessions from the shared household or interfering with them in any other
way. Restraining the respondent from alienating or disposing off the shared
household or encumbering the same;
Restraining the respondent from
renouncing his rights in the shared household except with the leave of the
Magistrate; or
Directing the respondent to secure
the same level of alternate accommodation for the aggrieved person as enjoyed
by her in the shared household or to pay rent for the same,
2. Protection Orders (Section 18)
Under section 18 of the Act , the
aggrieved party can sought for the protection from the court against the abuser
which the following cases example in case the abuser tries to commit any of the
following act:-
Committing Domestic Violence Act
Aiding or abetting in the commission
of acts domestic violence or the act that may hurt the aggrieved person
entering the place of employment of the aggrieved person or, if the person
aggrieved is a child, its school or any other place frequented by the aggrieved
person in order to create fear in the mind of the aggrieved person;
Attempting to communicate in any
form, with the aggrieved person,
including personal, oral or written or electronic or telephonic contact causing
violence to the dependants, other relatives or any person who give the
aggrieved person assistance from domestic violence.
3. Monetary Reliefs (Section 20)
In the compensation , in order to
meet the expenses losses suffered by the
aggrieved woman along with her child of
the aggrieved person as a result of the domestic violence it will be included the loss caused to the
aggrieved woman on account of the destruction, damage or removal of any
property from her control;
The remedy of maintenance as stated under the Section 125, Criminal Procedure state that
the monetary relief or the compensation must be adequate, fair and reasonable
and consistent with the standard of living to which the aggrieved woman is
accustomed .
4. Custody Orders (Section
21)empowers the magistrate to grant temporary custody of any child or children
to the aggrieved person, with or without the visitation rights to the
respondent.
5. Compensation Orders (Section 22)
the magistrate is empowered to direct the payment of compensation and damages
for injuries- both physical and mental injuries[15].
Criminal Law
Dowry Death-section 304-B ??Indian
Penal Code[17] if in case the married women dies
from burns or body injuries within the
seven years of her marriage. Punishment for the dowry death will be the
imprisonment with the term of not less than seven years but may extend up to
life imprisonment.
As is the case in India, the government and
the authorities are trying to protect women by all means. The Protection of
Women in Domestic Violence Act, 2005,[18] and many amendments to the Criminal
Law have been made in various acts to curb down the acts that violate the
dignity and dignity of women.
According to a recent study, 70
percent of Indian women, or victims, have been the victims of domestic
violence. Domestic violence was first introduced by the Indian Penal Code, [19] section 498 (a) where a woman's
husband and a relative of the husband abused her.
The protection of women in the fight
against domestic violence, 2005[20] as an act came into effect on
October 26, 2006, by the Parliament of India. This action is different from
section 498 (a) of the Indian Penal Code[21] because it gives a broader
definition of the definition of domestic violence.
There are also various provisions
made for the Protection of Women from Domestic Violence under various forms,
such as Section 304 (b) of the Indian Penal Code[22],
for cruelty, which also falls under the definition of domestic violence.
The amendment to the Criminal Law,
2013,[23] was a milestone in this topic, as it
amended other sections of the Indian Penal Code , The Code of Criminal
Procedure Code[24], and Indian Evidence Act[25].
Under the amendment, the principles
of sexual harassment and rape were clarified and added, and fines and penalties
were made more severe. Under the 2013 Amendment[26]:- Acid attacks, traps, female
genital mutilation etc, were made
punished under the law.
Conclusion
Domestic
Violence is a series of violence and is a very old crime, against every woman
since time immemorial. This is the time for the ultimate break of the chains of
this cycle of Domestic Violence so that the next generation can enjoy a better
and more cohesive life.
Domestic
violence, often known as "domestic violence" or "intimate
partner violence," is characterized as a pattern of conduct employed in
any kind of relationship to acquire or maintain control over a close partner.
Harassment is the act of influencing another individual through physical,
sexual, emotional, financial, or psychological pressure. This includes any
conduct that intimidates, intimidates, intimidates, is dishonest, hurtful,
humiliating, suspicious, or harms someone. No matter a person's ethnicity, age,
gender, or religion, domestic violence does exist. Any relationships, including
marriage, cohabitation, and dating, can experience it. People from all
socioeconomic and educational levels are affected by domestic abuse.
Therefore
it an urgent need to combat the violence and
should be the strong as well as effective strategies to prevent domestic violence .
In
response to the increased number of domestic abuse cases, government and
legislation have devised a number of policies that offer education and equal
opportunities to guarantee economic independence. Additionally, legislation is
being modified to foster gender equality.
Campaigns
to prevent domestic violence are also very important.
As a
way to teach the public about these rights under family law and provide
comprehensive information on how to get help campaigns can also alter the
public's beliefs and ideals regarding the prevention of these problems.
Education can help to teach the morals that
contribute to domestic violence. Campaigns to raise public awareness may
promote a crime that is permitted by the law. By advocating, the women will be
able to get an education and become aware of their rights and the protection
they will receive. They will be able to encourage others to leave the darkness
and enter the light thanks to the campaign.
Campaigns
can enlighten participants about services that are available to them and how to
defend themselves. In addition, they have access to everything, visible and
unseen.
1. One of the reasons why crime occurs but is
not reported and is overlooked is that Indian women do not know their rights.
Some do; they are smart and educated, but some are not. As a result, the
government should get in touch with the department to understand more ways to
increase legal awareness, advocacy and education.
2. Legal aid should promote the awareness among the women in order to
give them a safeguard as well as support to help them come out from the
violence .
3. Law enforcement personnel, particularly female police officers,
should receive sufficient training in gender response skills and techniques so
they can effectively deal with crimes that are committed.
4. Women should be made aware of their rights and encouraged to take
part in the institutions of justice established by the government.
5. There should be the courts like
courts mobile courts and the transformation of gender critical courts,
to encourage women to come forward and
report crimes against them by bringing them out of the shadows.. Uneducated and
rural women domains do not have the courage to come to court .Therefore mobile courts should be established
6. Informal and community-based dispute resolution processes—These
should concentrate on minimising gender-based discrimination to lighten the
load on the legal system. It is necessary to appoint intelligent leaders to
treat the victim women fairly. Cities must be the ones to establish it, not the
federal government.
7. there is a need of strong and rigid laws along with the punishments
that would include all kinds of acts as
well as its origination that
acting as iron hands to eliminate
the domestic violence.
With
the following , there is the hope that the graph of domestic violence cases
will be decreased and will be helpful in elimination of the domestic violence
–‘the silent old pandemic’.
Article Information
An Analysis on Domestic Violence Act In India (By-Mahalakshmi Vaishnabi)
Authors: Mahalakshmi Vaishnabi
- Journal IJLRA
- ISSN 2582-6433
- Published 2022/08/08
- Volume 2
- Issue 7
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
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