essay on domestic violence and constitutional remedies

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Understanding Domestic Violence: Theories, Challenges, and Remedies, by Rafael Art. Javier and William G. Herron (Eds.)

2019, Journal of Infant, Child, and Adolescent Psychotherapy

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Violence against women: Where are the solutions?

Indira sharma.

Department of Psychiatry, Institute of Medical Sciences, Banaras Hindu University, Varanasi, Uttar Pradesh, India

“If all men are born free, how is it that all women are born slaves?”

Mary Astel 1668-1731: Some Reflections upon Marriage (1706 ed.)

Dear friends, I am deeply honoured by the trust you have reposed in me and elected me to the highest office of the Indian Psychiatric Society. At this point of time, I would like to pay my respects to my revered teachers and seniors who taught me the ABC of psychiatry, mentored and blessed me all along my journey to this point. I salute (Late) Professor BB Sethi who admitted me to psychiatry. Dear Sirs, Prof. A. K. Agarwal, Prof. N. Lal, Prof. S. C. Gupta, Prof. Mata Prasad, Prof. C. K. Rastogi, Prof. A. K. Tandon, Prof. Prabhat Sitholey, and Dr. Ashok Trivedi, I thank you all wholeheartedly for all that you have taught me. I would like to give the credit to you all for this achievement. At this moment, I would like to remember my father (Late) Pandit Harish Chandra Sharma, a practicing lawyer at the Allahabad High court, for the enthusiasm he infused in me and for his lofty ideals, a few of which I have imbibed. I would like to dedicate this address to him.

I have chosen “Violence against Women: Where are the Solutions?” as the theme of my address on the following accounts:

Violence against women is a social, economic, developmental, legal, educational, human rights, and health (physical and mental) issue.
It is a preventable cause of morbidity and mortality in women
The relationship between violence against women and mental illness has not been adequately explored.
Application of laws related to violence in the setting of mental illness is difficult
Despite the social and religious sanctions against it in all cultures, it has continued.

Responses by communities, religious institutions, government (various commissions), international conventions, stringent legislations and penal measures have failed miserably in containing the menace.

The recent gang rape of a medical student on 16.12.2012, by 6 persons (under the effect of alcohol) in a bus (the safest transport), in the presence of her friend (a male), during busy traffic hours (9.30 pm), for an extended period (>1 h), in the National Capital Region, whose Chief Minister is a lady, and with a lady as the president of the ruling party has rocked the country.

Violence against women is on the national agenda. Government is making frantic efforts to find solutions. The Justice JS Varma Commission has been set up.

The world has entered into a new millennium, but from the dawn of civilization till date, the woman of the patriarchal society of India continues to be oppressed and ill-treated. She is dependent, weak, exploited and faces gender discrimination in every sphere of life. The gender-based violence that threatens the well-being, dignity and rights of women, extends across social, cultural, economic and regional boundaries.

Instances of violence against women in ancient India are mentioned. Mahabharat cites the violence meted out to Dropti. Yudhishtir staked his wife Dropti in gambling and lost her, following which Duryodhana ordered his brother Dushasan to strip her in the royal palace and he attempted to do so, but Lord Krishna came to her rescue. Kans killed seven newborn babies of his sister Devaki. In modern societies also violence against women is a major public health problem affecting women and children.

While deliberating on violence against women and mental illness two cases deserve mention. First, the “Bobbitt” case[ 1 ] of an American couple, whose difficult relationship gained worldwide notoriety for an incident in 1993 when the wife severed her husband's penis with a knife. The penis was subsequently surgically re-attached. The wife stated that her husband sexually, physically, and emotionally abused her during their marriage, flaunted his infidelities, and had forced her to have an abortion. Her defense attorneys maintained that she was suffering from clinical depression and a possible bout of posttraumatic stress disorder due to the abuse. The jury found her not guilty due to insanity causing an irresistible impulse to sexually wound her husband. As a result, she could not be held liable for her actions.

Second, is AM,[ 2 ] a high profile rape case from Orissa. She was driven out of her house by her husband, disowned by her parents and brutally raped in front of her friend in 1999. She accused the former advocate-general of Orissa to have attempted to rape her and to have played a role in the incident of gang rape. Mishra alleged that her husband tried to prove her insane so that he could divorce her. She was admitted to a psychiatric nursing home in Rourkela, where she received six ECTs. Thereafter, she was admitted in Central Institute Psychiatry for over 9 months. However, mental disorder could neither be confirmed, nor refuted.

WOMAN'S PLACE IN SOCIETY

Indian Society has always revered women. In Hinduism, man and woman represent the two halves of the divine body. There is no question of superiority or inferiority between them. Hindu history is witness to the super-women, such as Gargi, Maitreyi and Sulabha, whose faculty of reasoning was far superior to that of ordinary mortals. Many female deities Saraswati, Durga, Laxmi, Kali etc., are worshipped across the country. According to the Mahabharat by cherishing the woman one virtually worships the goddess of prosperity.

On the darker side, the patriarchal system has continued since the time of Rig Veda. Customs and values were made by men to favour men. Women suffer this discrimination in silence.

Historically, the Indian woman has been made to adopt contradictory roles. The strength of a woman is evoked to ensure that women effectively play their traditional roles of nurturance as daughters, mothers, wives, and daughters-in-laws. On the other hand, the stereotype of “a weak and helpless woman” is fostered to ensure complete dependence on the male sex.[ 3 ]

VIOLENCE AGAINST WOMEN: THE EVIDENCE

Violence against women occurs throughout the life cycle from prebirth, infancy, childhood, adolescence, adulthood to senescence.[ 4 ] Most of the data are believed to be unreliable as many cases go unreported.

Cases of violence against women are steadily increasing in the country. According to the National Crime Record Bureau, India, there is one dowry death in the country every 78 h, one act of sexual harassment every 59 min, one rape every 34 min, one act of torture every 12 min and almost one in every three married women experienced domestic violence.[ 5 ]

Studies from India reported violence in 19– 76% of women (75%[ 6 ]–76%[ 7 ] in lower caste women; 42–48% in Uttar Pradesh and 36–38% in Tamil Nadu;[ 8 ] and 19% in an urban slum community of childless women.[ 9 ]) In Western India, 15.7% pregnancy-related deaths in the community series and 12.9% in the hospital series were associated with domestic violence.[ 10 ] In Uttar Pradesh, 30% men reported beating wives.[ 11 ] 22% of woman of childbearing age from a potter community were physically assaulted. 34% of those physically assaulted required medical attention.[ 12 ]

The population-based, multicenter based collaborative project of the study of abuse in the family environment (India-survey of abuse in family environment) was established in seven sites in India.[ 13 ] It looked at the association with poor mental health. A total of 9938 women participated (from rural, urban slum, urban nonslum areas). 40% reported experiencing any violence during their marriage. 56% had self-report questionnaire scores indicating poor mental health.

DOMESTIC VIOLENCE

The home is often equated with a sanctuary, a place where individuals seek love, safety, security and shelter. For some women, the home is a place that imperils lives and breeds some of the most drastic forms of violence perpetrated against girls and women. Violence is usually perpetrated by males who are, or who have been in positions of trust and intimacy and power e.g. husbands, fathers, fathers-in law, stepfathers, brothers, uncles, sons, or other relatives.

The Protection of Women from Domestic Violence Act (PWDVA), 2005[ 14 ] defines domestic violence as any act, omission or commission or conduct of the respondent, which includes threat or actual abuse.

In the 1996 survey of 6902 men in the state of Uttar Pradesh, up to 45% of married men acknowledged physically abusing their wives.[ 4 ] The National Health Survey conducted under the stewardship of the Ministry of Health and Family Welfare, reported that >1/3 of women (34%) between the ages of 15–49 years have experienced spousal physical violence.[ 15 ] The adverse health consequences that women experience due to violence are wide-ranging with physical, reproductive and sexual and mental health outcomes.

In a community-based study involving 450 women in Gujarat,[ 16 ] 42% experienced physical beatings and sexual abuse, and 23% experiences abusive language, belittlement and threats. It is interesting to note that 56% women belief that wife beating is justified.

The International Center for Research on Women (ICRW) in multiple centers in India reported that 85% of men admit they had indulged in violent behavior against their wives at least once in last 12 months. 57% of men admitted to have sexual abuse with their wives. 32% of men admitted to committing violence on their pregnant wives. The men indulged in violence to establish their power over the weaker sex. Subtle and insidious forms of violence include repeated humiliation, insults, forced isolation, limitations on social mobility, the constant threat of violence and injury, and denial of economic resources.[ 17 ]

SEXUAL HARASSMENT AT WORK PLACE

A social worker (BD) was gang-raped by a group of the upper class, influential men, because she had tried to stop the practice of child marriage. The accused was acquitted by the trial court. This inspired several women's groups and NGOs to file a petition in the Supreme Court under the collective platform of Vishaka (Vishaka and others vs. State of Rajasthan and others).[ 18 ] It is a landmark case as it was the basis for Supreme Court guidelines on sexual harassment at workplace.

DOWRY RELATED VIOLENCE

The age-old practice of dowry has persisted and driven many women to suicide.[ 19 ] In 50 district court judgments, 1987–1989, Maharashtra, West India, there was dowry related violence. 120 cases of dowry deaths and 20 cases of intentional injury related to dowry were identified. There were intentional injuries, including physical violence (59%), mental torture 28%, molestation by family members and perversity (10%), and starving 3%.[ 20 ] The causes of death in the women who died were: Burns 46% and drowning 34%. It is worth noting that the women were very young-88% below 25 years; 58% of them were childless, and 22% had only female children.[ 20 ] Harassment by in-laws on issues related to dowry emerged as a risk factor for poor mental health. It is characteristic of the Indian setting.[ 13 ] Dowry related violence is on the rise in India. More than 5000 women are killed annually by their husbands and in-laws, who burn them in “accidental” kitchen fires if their ongoing demands for dowry before and after marriage are not met. On an average five women a day are burned, and many more cases go unreported.[ 4 ]

CAUSES OF VIOLENCE AGAINST WOMEN: RISK FACTORS

Psychiatric morbidity.

Regular consumption of alcohol by the husband has been strongly associated with poor mental health of women.[ 13 , 21 ] Alcohol has consistently emerged as a risk marker for partner violence that is specially consistent across a range of settings[ 22 ] for all types of violence.[ 23 ] Alcohol operates as a situational factor, increasing the likelihood of violence by reducing inhibitions, clouding judgment and impairing an individual's ability to interpret cues.[ 24 ] Others morbidities such as bipolar disorder, paranoid schizophrenia, delusional and antisocial personality disorder make the man more vulnerable to commit sexual crimes. There is evidence from many forensic cases (Bobbit, Manu Sharma, Nirbhaya etc.,) that alcohol was the common denominator in violence against women.

Sociodemographic factors

Patriarchy has been cited as the main cause of violence against women. Early (15–19 years;[ 25 ] 10–19 years),[ 26 ] and young age (31–39 years),[ 26 ] illiteracy,[ 26 ] coupled with low level of education, poor socioeconomic status,[ 13 , 16 ] women with no income of their own,[ 16 ] and urban domicile[ 23 ] have been cited as risk factors for domestic violence. Women engaged in small business and farming were more likely to be abused than women who were housewives or who had occupational status equal to that of husbands.[ 23 ] Where women have a higher economic status than their husbands and are seen as having sufficient power to change traditional gender roles, risk for violence is high.[ 23 , 27 ] Unmarried,[ 26 ] separated or divorced status or being in a live-in relationship[ 23 , 25 ] have been reported to be associated with violence against women.

Family factors

Exposure to harsh physical discipline during childhood and witnessing the father beating the mother during childhood is a predictor of victimization and perpetration of violence against his wife in adulthood.[ 13 , 16 , 21 ] Childlessness,[ 28 ] longer marital duration, having more children, extended family and large family size have been associated with victimization and perpetration of domestic violence.[ 13 ] In addition, the age-old custom of dowry and gifts for husband and in-laws has been found to be strongly related to violence against women in India.[ 13 , 21 , 23 ]

Married women with mental illness: The triple tragedy[ 29 ]

Women with severe mental illness are ostracized on three accounts, the female status, psychosis and separated/divorced status, which together constitute the triple tragedy.[ 29 ] For many women, it is a no-win situation. They are neither wanted at parents’ homes nor at their husbands’ homes. These women are helpless and suffer from a multitude of stresses that are unique to Indian culture[ 30 ] such as partial desertions, forced to live with the husband she hates, not being granted permission to enter her own home, being sent back to her parents every time her symptoms increase, parents being forced to pay for her medical expenses, not allowed to take her medication etc.

The situation with respect to marriage of women with mental illness in India is intriguing. It has been aptly described as the “Indian paradox” by Sharma and Tripathi.[ 31 ] All women must marry irrespective of the presence of mental illness. It is possible to marry women with mental illness, sometimes even when there is active psycho-pathology, because most marriages are arranged, and it is often possible to lure the other party with a handsome dowry. Despite violence being meted out to these women, they make frantic attempts for restitution of conjugal rights rather than for separation or divorce.[ 31 ]

Traditional and cultural practices perpetuating violence against women[ 4 ]

Female genital mutilation.

Two million/year undergo female genital mutilation (FGM) in the world. It takes place in 28 countries in Africa, in some regions of Asia and the Middle East and in certain immigrant communities in North America, Europe, and Australia. FGM can lead to death, infertility, and long-term psychological trauma combined with increased physical suffering.

Acid attacks

In Bangladesh, it estimated that there are over 200 acid attacks each year. Sulfuric acid attacks have emerged as a cheap and readily accessible weapon to disfigure and sometimes kill women and girls for reasons as varied as family feuds, inability to meet dowry demands, and rejection of marriage proposals.

Killing in the name of family honour

In several countries of the world including Bangladesh, Egypt, Jordan, Lebanon, Pakistan, Turkey, and India, women are killed to uphold the honour of the family due to varied reasons such as-alleged adultery, premarital relationship (with or without sexual relations), rape, falling in love with a person the family disapproves, which justify a male member of the family to kill the woman concerned. It is rather disturbing that in certain countries (Jordan) the penal laws governing such crimes are lenient if the person committing the crime is below the age of 18 years. In India honour killings appear to be on the rise.

Early marriages

Early marriage with or without the consent of the girl, constitutes a form of violence as it undermines the health and autonomy of millions of girls. Nearly 12% were married by age 12, 26% by age 15, and 24% married by age 18.[ 16 ] The legal minimum age for marriage is usually lower for females as compared to males. In many countries, the minimum legal age for marriage with parental consent is considerably lower, than without it. More than 50 countries allow marriage at 16 and below with parental consent.[ 4 ]

Sociocultural factors disfavouring women

Stereotypes of gender roles have continued over the ages. The primary roles for women have been marriage and motherhood. Women must marry because an unmarried, separated or divorced status is a stigma. The custom of dowry is still prevalent in Indian marriages. Marriage cannot be dissolved. In the settlement of marriage, it is generally ensured that the woman is younger, nonworking, and less educated than her husband. Thus, the “brother-sister” or “father-daughter” model continues into marriage with the husband having the right to dominate and discipline his wife. After marriage the girl has to go to her husband's home, never to return to her parent's place. At her husband's place, she has to accept the prevailing norm of an inferior status of the “Bahu” (daughter-in-law), which means she should adjust and be tolerant and respectful toward all members of the family, including those much younger to her. She should not disclose her problems to anyone outside the home, nor take help from outside (not even parents). Husband is given a divine status. Relatives bless the husband “ Suhagvati raho ” (may your husband live long), or “ Phalo puto ” (may you bear fruits [children]); not the wife. She should bring money and gifts from parents on various festivals. She has nothing of her own. Without husband life has no meaning for her. Although the practice of Sati has declined, enforced widowhood is still prevalent. These sociocultural factors have continued over the years and have put women at risk for various forms of abuse.

Modernisation

Modern styles of living and rapid technological advances have also been blamed. Mobiles, ipads, television, computers, internet have become the order of the day. Women are moving out of the houses more freely and there is free mixing of the two genders. “Fashion, Drink, Dine and Make Merry” or “You live only once” culture is being promoted amongst the youth. Television and cinemas are portraying sexual material for making fast money. Pornographic material is easily available to many on the internet and through other ways.

Late marriages

Marriages are being delayed for various reasons with a trend toward getting married around 30, or even later.

Life stress

Poor quality of education, high competition in education and employment, corruption and inflation are the common stresses of the youth. The high-risk individual could be a young person, who lives away from his home, anxious and depressed, frequently views pornography and resorts to alcohol for recreation and relaxation.

Judiciary and law enforcement machinery

An insensitive, inefficient, corrupt and unaccountable judicial system and law enforcement machinery fails to deter against various forms of crimes.

Decline in moral and religious values

Population explosion.

Unplanned increase in population leads to many types of stresses, which indirectly contribute to the risk of violence against women.

VIOLENCE AGAINST WOMEN: WHAT HAS BEEN DONE

Communities’ response to violence.

A few women-initiated community-level responses to domestic violence are praise worthy. The Nari Adalat and Sahara Sangh initiatives have been organized by the Department of Education's Mahila Samakya Program in two districts of Uttar Pradesh and Gujarat. Salishe, a traditional method, is being utilized by the Nongovernment Organisation Shramajibee Mahila Samiti in West Bengal. The ICRW conducted a television program in four channels entitled “Bol”. It created awareness among women.

Legislative response

International: There are a number of international Instruments to curb violence against women. The United Nations General Assembly resolution endorsed the urgent need for the universal application of women's rights of equality, security, liberty integrity and dignity. Article 55 and 56 of United Nations charter cast a legal obligation on United Nations organization to promote respect for equality and human rights.

The Universal Declaration of Human Rights, article 5, states that no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.[ 32 ] There have been three United Nations world conferences on women. One in Mexico in 1975, the second in Copenhagen in 1980, and the third one in Nairobi, wherein strategies were framed to promote gender equality and opportunities for women. These were based on three objectives: Equality, development and peace.

The Vienna Declaration, 1993[ 33 ] calls for action to integrate the equal status human rights of women. It stresses toward elimination of violence against women in public and private life. The Beijing conference, 1995[ 34 ] provided a platform for concentration on some of the key issues identified as fundamental obstacles to the advancement of majority of women in the world. It focused on issues such as discrimination against women, violence against women, etc.

The Convention on Elimination of all forms of Discrimination against Women (CEDAW), 1981,[ 35 ] to which 166 countries are members, is a landmark document because it framed violence against women within the framework of human rights. It identified female as the primary risk factor for violence and broadened the definition of gender violence (to include all aspects of women's life).

Domestic legal remedies in India

The Constitution of India:[ 36 ] Article 14 is on equality.

Difference in treatment between men and women by the state is totally prohibited on grounds of religion race, caste, sex or place of birth. Article 21 is on right to live; right to live with human dignity.

The National Commission for Women: It was set up as a statutory body in January 1992 under the National Commission for Women Act, 1990[ 37 ] to review the constitutional and legal safeguards for women; recommend remedial legislative measures, facilitate redress of grievances and advise the Government on all policy matters affecting women.

The Supreme Court guidelines on sexual harassment at work place: For the first time, the Court drew upon an international human rights law instrument, the CEDAW to pass a set of guidelines. The Court defined sexual harassment at work place as any unwelcome gesture, behavior, words or advances that are sexual in nature. “It shall be the duty of the employer or other responsible persons in work places or other institutions to prevent or deter the commission of acts of sexual harassment and to provide the procedures for the resolution, settlement or prosecution of acts, of sexual harassment by taking all steps required.”

The legislation relating to violence against women comprises the Indian Penal Code (IPC),[ 38 ] civil law and special laws.

Dowry and dowry death: The Dowry Prohibition Act (DPA), 1961[ 39 ] applies to all people, Hindus, Muslims, Christians, Parsis and Jews. Giving, taking or abetting the giving or taking of dowry is an offence, which is punishable. Several states (Bihar, West Bengal, Orissa, Haryana, Himachal Pradesh, and Punjab) amended the DPA to give it more teeth. The law was found to fail to stall the evil.

Where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances, within 7 years of marriage, and if 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 of dowry, such death shall be called “dowry death” and such husband or relative shall be deemed to have caused her death (IPC 304-B).[ 38 ] 113-B Indian Evidence Act, 1872, was inserted for the presumption as to dowry death.

Abetment of suicide of child or insane person: If any person under 18 years of age, any insane person, any delirious person, any idiot, or any person in a state of intoxication, commits suicide, whoever abets the commission of such suicide, shall be punished with death or imprisonment for life or imprisonment for a term not exceeding 10 years and shall also be liable for fine (305 IPC).[ 38 ] However, the difficulty is that if it is shown the victim has major mental illness, the benefit of doubt is given to the accused and he is acquitted.

Abetment of suicide: If any person commits suicide, whoever abets the commission of such suicide shall be punished with imprisonment of either description for a term which may extend to 10 years and shall also be liable for fine (306 IPC).[ 38 ] 113-A of Indian Evidence Act, 1872, relates to the presumption as to abetment of suicide. The offences of dowry and abetment of suicide are cognizable, nonbailable and noncompoundable.

Sexual offences: A man is said to have committed rape if he has sexual intercourse with a woman against her will and consent; or with her consent when the man knows that he is not her husband or when she thinks that he is her lawful husband; or with her consent when she is of unsound mind or is intoxicated by herself or the man. However, sexual intercourse by a man with his own wife, the wife not being under 15 years, is not rape (375 IPC).[ 38 ] The latter provision seems deficient as it does not include marital rape.

Voluntarily having carnal intercourse against the order of nature with any man, woman, or animal is an offence for which the person shall be imprisoned for life and shall also be liable for fine. This provision is hardly used (377 IPC).[ 38 ]

Of cruelty by husband and relatives of husband: The willful conduct of the husband or his relative that is likely to drive the women to commit suicide or cause physical or mental trauma to her or harassment of a woman with a view to coercing her or any of her relative to meet any unlawful demand for property would be punishable by imprisonment for 3 years and fine (498A IPC).[ 38 ] This is the most widely used provision against domestic violence.

Other offences in mentioned in IPC[ 38 ] are: Causing miscarriage (312 IPC), causing miscarriage without woman's consent (313 IPC), death caused by an act done with intent to cause miscarriage; if act was done without woman's consent (314 IPC), act done with intent to prevent child being born alive or to cause it to die after birth (315 IPC) and causing death of quick unborn child by act not amounting to culpable homicide (316 IPC).
The Family Courts Act, 1984:[ 40 ] The Act was established with a view to promote conciliation in, and secure speedy settlement of disputes relating to marriage and family affairs.
The Indecent Representation of Women (Prohibition) Act, 1986.[ 41 ]: This Act prohibits the indecent representation of women through advertisements or in publications, writings, paintings, figures or in any other manner is prohibited.

The Commission of Sati (prevention) Act, 1987:[ 42 ] This Act is for the prevention and glorification of sati.

Protection of Women From Domestic Violence Act, 2005:[ 14 ] The Protection of Women From Domestic Violence Act (PWDVA), 2005 was enacted to provide for more effective protection of the rights of women guaranteed under the constitution who are victims of violence of any kind occurring within the family and for matters connected thereto. It recognizes 4 types of domestic violence: Physical, verbal, and emotional (including not having a child or a male child, marrying without consent), and economic (including violence related to stridhan, dowry, property) and sexual (includes sexual abuse and marital rape).

The aggrieved person (AP) is a woman who has been in a domestic relationship with the respondent. The respondent is any adult male person who is, or has been in a domestic relationship with the AP and against whom the AP has sought relief. The AP or any person can complain directly (verbal), telephonically or via E-mail. There is provision for various orders (protection, residence, maintenance (monetary relief), custody orders and emergency help. There is also provision for assistance (counselor, police, and assistance for initiating criminal proceedings, shelter home, medical facilities, and legal aid).

The PWDVA is good in many ways. It is friendly to even to poor and illiterate women; it educates the woman regarding the rights and available assistance; provides many reliefs (which facilitate psychosocial rehabilitation), free legal advice and help to initiate legal proceedings against respondent; it attempts to restore the family; and last, but not the least, it empowers the woman. The main criticism against PWDVA is that mental illness in AP or respondent is ignored. Apart from this, there are mixed reactions toward few legislations, especially PWDVA, DPA and IPC 498A, because they have been frequently abused and are considered as “anti-men.”

DO WE HAVE SOLUTIONS?

Once rape has been committed, it confirms that all measures to stall violence have failed. Reaction in the form of declaration of enhanced punishment is largely an expression of helplessness and frustration. The emphasis should be on prevention and rehabilitation.

Legislation by itself would not suffice because violence against women is a deep rooted social problem. It is worth quoting late Prime Minister, Jawaharlal Nehru, who remarked: “Legislation cannot by itself normally solve deep rooted social problems. One has to approach them in other ways too, but legislation is necessary and essential and hence that it may give that push and have educative factors, as well as the legal sanctions behind it, which help public opinion to be given a certain shape.”[ 43 ]

Women cannot solve the problems by themselves. Women should understand men and men should understand women. Both should work together to eradicate the menace.

RECOMMENDATIONS FOR COMBATING VIOLENCE AGAINST WOMEN

Mental illness.

Psychiatric illness should be identified and treated promptly. Patients with active symptoms should be kept in a protected environment till substantial improvement takes place. Many patients may need life-long protection e.g. those suffering from mental retardation or chronic schizophrenia.

Women with severe mental illness need special attention. Public awareness needs to be created with respect to the following:

Women need protection but those with mental illness need more care and protection.
The real problem is not mental illness, but the negative attitude toward it.
Many medical illnesses create more problems in marriage, than mental illnesses.
There should no double standard? If a woman can continue the marriage after her husband develops a mental illness, so can the husband. Similarly, people should be made to understand that if it is right to marry a son or daughter with mental illness, then the reverse is also true. A daughter in-law with mental illness should also be accepted.
Good family support greatly improves the prognosis.
Many women with mental illness prove to be better marriage partners and daughter-in-laws than those without mental illness.
If the husband's family accepts the woman with mental illness, the society will also follow
Woman with mental illness should be accepted with her illness.
Violence is not the solution. Mental illness in the victim (e.g. depression) or perpetrator (e.g. alcoholism or schizophrenia) should be promptly treated.

Restriction on use of alcohol

There should be prohibition of alcohol use in mass gatherings in institutions, public places like trains and buses. The number of alcohol outlets should be decreased. The age for purchasing alcohol may be raised to 30 years. Special checks on festive occasions are recommended with the help of breath analyzers. Involuntary treatment of persons with alcohol dependence should be carried out.

Control on media

Sexual material should be censored. Good themes, which condemn violence and glorify rehabilitation of the victim, should be projected. Ban on pornography should be strictly implemented. The sites may be blocked.

Marriage of boys and girls should preferably be in early 20s, as soon as feasible, so that sexual needs could be satisfied in a socially appropriate manner.

Strengthening the institution of marriage

Strong marital bond would act as a deterrent. The “Shiv-Parvati” model should be promoted for Hindus.

Law enforcement

Efficient and accountable law enforcement machinery at all levels (administration, government, police and judiciary) is needed.

Legislation

Change in mind set of the judiciary.

This is the need of the day. Indira Jaising, Additional Solicitor General of India, aptly stated “It's time for India's courts to gaze inward and throw out deeply embedded patriarchal notions that stop judgments from being fair to women. Sexism within the system has to go before it does more damage in the country.”[ 44 ] A High Court judge in Orissa in his judgment once famously held “It was not possible for a man, acting alone, to rape a woman in good health.”[ 44 ]

Amendments in existing legislations

The Hindu Marriage Act (1955):[ 45 ] Mental illness may be removed from conditions of Hindu marriage. Not informing about past illness of mental illness should not be a ground for nullity of marriage.

PWDVA, 2005 and DPA, 1961: Assessment for mental illness may be incorporated in the code civil procedure so that the mental illness is identified in the victim (woman) and/or perpetrator (male relative) and promptly treated. This way violence can be prevented.

New legislations

New legislation is needed to provide for granting “Interim Relief” (A big sum of money that is paid by the perpetrator) to a victim of severe sexual assault. The money may be utilized for rehabilitation of the victim. Rehabilitation of the victims of brutal sexual assaults should be the State's responsibility. The legislation should provide for enhanced punishment for violence perpetrated against women with mental illness.

Appropriate application of laws in the setting of mental illness

This is often very difficult, nevertheless very important. Judiciary handling such cases should desirably have both legal (LLB) as well as medical (MD Psychiatry/DPM) qualifications.

Code of conduct

Code of conduct at work place, school and home, with respect to interaction with persons of opposite sex should be outlined and implemented.

Gender sensitization

Gender sensitization by parents and teachers is needed regarding the sensitivities and boundaries of man-woman relationships.

Education and employment

Improvement in quality of education and employment opportunities for youth.

Recreation and talent

Recreational avenues and opportunities for talent development in young people.

Moral and religious values

Parents and teachers should strive to infuse good moral and religious values in children and serve as role models.

Population control

Last, but not the least, If we are sincere we will get the results. Let us all say “No” to violence against women.

Bringing Governance Home: Feminists, Domestic Violence, and the Paradoxes of Rights in India

Published: 17 August 2023
Volume 32 , pages 77–97, ( 2024 )

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essay on domestic violence and constitutional remedies

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Feminists have had spectacular successes transnationally in shifting the norms governing family life through legislation proscribing domestic violence. This article looks at the case of India and asks, how the pursuit of legal rights has shaped the Indian feminist conceptualisations of domestic violence. Through a mapping of feminist interventions on violence in the home since the 1970s, the article shows that Indian feminists have progressively adopted a strictly gendered conception of the phenomenon, which has run afoul of the constitutional equal protection doctrine for prioritising some women over others in the family and proved to be inadequate for addressing violence in non-heteronormative contexts. The article argues that rather than taking the prospects of legal rights against violence in the home to be self-evident, it is instructive to attend to the paradoxes generated by them.

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My deepest appreciation and thanks to the peer reviewers for their constructive criticisms which improved this article substantially. Also, many thanks to the editors for their support and Prabha Kotiswaran, Diksha Sanyal, and Pooja Badarinath for their helpful feedback.

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Mandal, S. Bringing Governance Home: Feminists, Domestic Violence, and the Paradoxes of Rights in India. Fem Leg Stud 32 , 77–97 (2024). https://doi.org/10.1007/s10691-023-09532-x

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Introduction

The patriarchal setup has been deeply rooted in Indian society since time immemorial. It may be believed that this system laid the foundation stone for the abuse of women. Domestic violence affects women from every social background irrespective of their age, religion, caste, or class. It is a violent crime that not only affects a person and her children but also has wider implications for society. Although the root behind the crime is hard to decipher, certain reasons behind the violence can be traced to the stereotyping of gender roles, and the distribution of power.

The definition of violence has evolved over the years to an extent it not only includes physical forms of violence but also emotional, mental, financial, and other forms of cruelty. Thus, the term domestic violence includes acts which harm or endangers the health, safety, life, limb, or wellbeing (mental or physical) of the victim, or tends to do so, and includes causing: physical abuse, sexual abuse, verbal abuse, emotional abuse, and economic abuse, perpetrated by any person who is or was in a domestic relationship with the victim.

Before the enactment of the Protection of Women from Domestic Violence Act, 2005 (“DV Act”) , the victim could approach the court under Section 498-A of the Penal Code, 1860 which provides for ‘husband or relative of husband of a woman subjecting her to cruelty’ wherein only a certain set of offence dealing with cruelty to married women was the only recourse. All other instances of domestic violence within the household had to be dealt with under the offences that the respective acts of violence constituted under the IPC without any regard to the gender of the victim.

Protection of Women from Domestic Violence Act, 2005: Meaning, Intent, and Objective

To minimize the cumbersome position of law, be it procedural or substantive, the Protection of Women from Domestic Violence Act, 2005 was enacted to protect the women from acts of domestic violence. The legislative intent was further emphasized by the Supreme Court of India in the case of Indra Sarma v. V.K.V Sarma , (2013) 15 SCC 755 wherein it was stated that the DV Act is enacted to provide a remedy in civil law for the protection of women, from being victims of such relationship, and to prevent the occurrence of domestic violence in the society. Other legislations like CrPC, IPC, etc., where reliefs have been provided to women who are placed in vulnerable situations were also discussed .

The objective of the Act lays down “ An Act to provide for more effective protection of the rights of women guaranteed under the Constitution who are victims of violence of any kind occurring within the family and for matters connected therewith or incidental thereto.” [1] The Madras High Court in Vandhana v. T. Srikanth , 2007 SCC Online Mad 553 in one of the early cases since the enactment of the DV Act, observed that the Act was formulated to implement Recommendation No. 12 of United Nations Committee on Convention on Elimination of All Forms of Discrimination Against Women (CEDAW), 1989 and which was ratified by India in June, 1993. Interpretation of the DV Act should conform to international conventions and international instruments and norms. The Bombay High Court in the case of Ishpal Singh Kahai v. Ramanjeet Kahai , 2011 SCC Online Bom 412 reiterated that the object of the DV Act is to grant statutory protection to victims of violence in the domestic sector who had no proprietary rights. The Act provides for security and protection of a wife irrespective of her proprietary rights in her residence. It aims at protecting the wife against violence and at the prevention of recurrence of acts of violence.

Key Definitions under the Domestic Violence Act

Aggrieved Person

According to the definition provided under the DV Act in Section 2( a ) , an “aggreived person” means any woman who is, or has been, in a domestic relationship with the respondent and who alleges to have been subjected to any act of domestic violence by the respondent. Therefore, any woman who is or has been in a domestic relationship is entitled to make a complaint invoking provisions of the Act.

The amount or period of time lived together by the petitioner and respondent is not necessary in terms of that the petitioner and respondent should live or have lived together for a particular period of time. Hence, application by lady, for maintenance, from a man with whom she shared a close relationship is maintainable, M. Palani v. Meenakshi , 2008 SCC Online Mad 150 .

The Supreme Court had observed in one of the cases that judicial separation does not change the status of the wife as an “aggrieved person” under Section 2( a ) read with Section 12 and does not end the “domestic relationship” under Section 2( f ). It stated that judicial separation is mere suspension of husband-wife relationship and not a complete severance of relationship as happens in divorce, Krishna Bhattacharjee v. Sarathi Choudhury , (2016) 2 SCC 705 .

Domestic Relationship

According to Section 2( f ) of DV Act, “domestic relationship” means a relationship between two persons living in a shared household. Domestic relationship can be through marriage such as wives, daughters-in-law, sisters-in-law, widows and any other members of the family; or blood relationship such as mothers, sisters or daughters; and other domestic relationships including through adoption, live-in relationships, and women in bigamous relationship or victims of legally invalid marriages. The law addresses the concerns of women of all ages irrespective of their marital status. The definition of “domestic relationship” under the DV Act is exhaustive: when a definition clause is defined to “mean” such and such, the definition is prima facie restrictive and exhaustive, Indra Sarma v. V.K.V Sarma , (2013) 15 SCC 755 .

The Supreme Court further stated that the word domestic relationship means a relationship that has some inherent or essential characteristics of marriage though not a marriage that is legally recognized. Expression “relationship in the nature of marriage” cannot be construed in the abstract. It is to be taken in the context in which it appears and to be applied bearing in mind the purpose and object of DV Act as well as meaning of the expression “in the nature of marriage”, Indra Sarma v. V.K.V Sarm a , (2013) 15 SCC 755 .

Shared Household

According to Section 2( s ) of DV Act 2005, a shared household is where the aggrieved person or a woman lives in a domestic relationship, either singly, or along with the man against whom the complaint is filed. It may also imply a household where a woman has lived in a domestic relationship but has been thrown out. This may include all kinds of situations whether the household is owned by the respondent or it is rented accommodation. It also includes a house either owned jointly by the aggrieved person and the respondent or both may have jointly or singly, any rights, titles or interests. The DV Act recognizes a woman’s right to reside in a shared household. This means a woman cannot be thrown out of such a household except through the procedure established by the law. In case she is thrown out she can be brought back again after obtaining the order from the court. A woman to claim the protection of right in “shared household” has to establish ( a ) that the relationship with the opposite party is “domestic relationship”, and ( b ) that the house in respect of which she seeks to enforce the right is “shared household”. In Indian society, there are many situations in which a woman may not enter into her matrimonial home immediately after marriage. A woman might not live at the time of the institution of proceedings or might have lived together with the husband even for a single day in “shared household” should not be left remediless despite valid marriage. Narrow interpretation of “domestic relationship” and “shared household” would leave many a woman in distress without remedy. Hence the correct interpretation of aforesaid definition including the right to live in “shared household” would be that words “live” or “have at any point of time lived” would include within its purview “the right to live”, Vandhana v. T. Srikanth , 2007 SCC Online Mad 553 .

This law does not alter the legality of ownership or transfer the ownership and a woman cannot claim that she owns a house; it only provides emergency relief to the victim in the sense that she cannot be thrown out of her house. For claiming ownership, a woman has to follow a separate legal procedure and has to file a separate application as per the provisions of laws whichever are applicable to her situation.

Domestic Violence

“Domestic violence” is a broad term that entails not only physical beating but also other forms of violence such as emotional violence, mental violence, sexual violence, financial violence and other forms of cruelty that may occur within a household. The definition provided in Section 3 of the DV Act includes the following as acts of domestic violence:

“Any act, omission or commission or conduct of the respondent shall constitute domestic violence in case it— ( a ) 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 ( b ) harasses, harms, injures or endangers the aggrieved person with a view 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 ( c ) 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 ( d ) otherwise injures or causes harm, whether physical or mental, to the aggrieved person.”

The Section also defines the meaning of terms physical abuse, sexual abuse, verbal and emotional abuse, and economic abuse. It further enunciates that the overall facts and circumstances of the case shall be taken into consideration in order to determine whether any act, omission, commission or conduct of the respondent constitutes “domestic violence” under the said section.

Who can seek help or can claim reliefs under the Domestic Violence Act?

According to the provisions of this Act, any aggrieved woman who is in a domestic relationship with the respondent and who alleges to have been subjected to the act of domestic violence by the respondent can seek help. A woman can file a complaint against any adult male perpetrator who commits an act of violence. She can also file a complaint against any male or female relatives of the husband/ male partner (for example in a live-in relationship) who has perpetrated violence. The Supreme Court in Hiral P. Harsora v. Kusum Narottamdas Harsora , (2016) 10 SCC 165 struck down adult male from the definition of “respondent” stating that it is not based on any intelligible differentia having rational nexus with object sought to be achieved. The Supreme Court also explained in the said case that the categories of persons against whom remedies under the DV Act are available include women and non-adults. Expression “respondent” in Section 2( q ) or persons who can be treated as perpetrators of violence against women/against whom remedies under the DV Act are actionable cannot be restricted to expression “adult male person” in Section 2( q ) . Thus, remedies under the DV Act are available even against a female member and also against non-adults.

Protection Officer

Under Section 8 of the DV Act, the Protection Officer is appointed by the State Government as per the provisions of the law. The Protection Officer acts as a facilitator between the aggrieved woman and the court. The Protection Officer aids the aggrieved woman in filing of complaints, and application before the Magistrate to obtain the necessary relief and also assists to obtain medical aid, legal aid, counselling, safe shelter and other required assistance.

Duties of Protection Officer

Section 9 of the DV Act lays down the duties of the Protection Officer as follows:

“( a ) to assist the Magistrate in the discharge of his functions under this Act;

( b ) to make a domestic incident report to the Magistrate, in such form and in such manner as may be prescribed, upon receipt of a complaint of domestic violence and forward copies thereof to the police officer in charge of the police station within the local limits of whose jurisdiction domestic violence is alleged to have been committed and to the service providers in that area;

( c ) to make an application in such form and in such manner as may be prescribed to the Magistrate, if the aggrieved person so desires, claiming relief for issuance of a protection order;

( d ) to ensure that the aggrieved person is provided legal aid under the Legal Services Authorities Act, 1987 and make available free of cost the prescribed form in which a complaint is to be made;

( e ) to maintain a list of all service providers providing legal aid or counselling, shelter homes and medical facilities in a local area within the jurisdiction of the Magistrate;

( f ) to make available a safe shelter home, if the aggrieved person so requires and forward a copy of his report of having lodged the aggrieved person in a shelter home to the police station and the Magistrate having jurisdiction in the area where the shelter home is situated;

( g ) to get the aggrieved person medically examined, if she has sustained bodily injuries and forward a copy of the medical report to the police station and the Magistrate having jurisdiction in the area where the domestic violence is alleged to have been taken place;

( h ) to ensure that the order for monetary relief under Section 20 is complied with and executed, in accordance with the procedure prescribed under the Code of Criminal Procedure, 1973 (2 of 1974);

( i ) to perform such other duties as may be prescribed.”

Service Providers

A victim of domestic violence may require various services such as shelter home or safe accommodation, medical aid, child care, legal aid services and other community services. According to Section 10(1) of DV Act, the Service Providers are the NGOs, Companies or voluntary organizations working in the field of domestic violence and are registered under the laws of the State. Service Providers are duty bound to provide assistance and support to women facing domestic violence. A woman can go to a registered Service Provider to make a complaint under the DV Act. The duty of the service provider, as provided under Section 6 of the DV Act, upon receipt of request should be to provide shelter to the aggrieved person in the shelter home.

Filing a Complaint of Domestic Violence

An aggrieved woman, in order to file a complaint for domestic violence may:

Approach the police station and register the complaint, or
File a complaint to a Protection Officer or Service Provider, or
Directly approach the Magistrate.

The duties of the police officers, Protection officer, Service Provider, or the Magistrate is laid down under Section 5 of the Act. It states that, upon receipt of complaint they shall inform the aggrieved person—

“( a ) of her right to make an application for obtaining a relief by way of a protection order, an order for monetary relief, a custody order, a residence order, a compensation order or more than one such order under this Act;

( b ) of the availability of services of service providers;

( c ) of the availability of services of the Protection Officers;

( d ) of her right to free legal services under the Legal Services Authorities Act, 1987 ;

( e ) of her right to file a complaint under Section 498-A of the Indian Penal Code , wherever relevant”

The Supreme Court emphasised that the Police has to look into the complaint made under the DV Act seriously and it cannot submit a report that no case is made out without proper verification, investigation, enquiry not only from members of family but also from neighbours, friends and others, Santosh Bakshi v. State of Punjab , (2014) 13 SCC 25 .

Which Court can decide the case

Section 27 of the DV Act provides that a first class magistrate or metropolitan court shall be the competent court to grant a protection order and other orders under the DV Act and to try offences under the Act within the local limits of which

( a ) the person aggrieved permanently or temporarily resides or carries on business or is employed; or

( b ) the respondent resides or carries on business or is employed; or

( c ) the cause of action has arisen.

In a recent decision, the Supreme Court held that petition under DV Act can be filed in a court where “person aggrieved” permanently or temporarily resides or carries on business or is employed, Shyamlal Devda v. Parimal a , (2020) 3 SCC 14 .

Reliefs available under the Domestic Violence Act

The remedies available under the DV Act as provided from Section 18 to 23 for the aggrieved person are as follows:

Protection orders ( Section 18 )

The Magistrate after giving the aggrieved person and the respondent an opportunity of being heard and if satisfied that domestic violence has taken place or is likely to take place may pass a protection order and prohibit the respondent from

(a ) committing any act of domestic violence;

( b ) aiding or abetting in the commission of acts of domestic violence;

( c ) 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;

( d ) attempting to communicate in any form, whatsoever, with the aggrieved person, including personal, oral or written or electronic or telephonic contact;

( e ) alienating any assets, operating bank lockers or bank accounts used or held or enjoyed by both the parties, jointly by the aggrieved person and the respondent or singly by the respondent, including her stridhan or any other property held either jointly by the parties or separately by them without the leave of the Magistrate;

( f ) causing violence to the dependants, other relatives or any person who give the aggrieved person assistance from domestic violence;

( g ) committing any other act as specified in the protection order.

Residence Order ( Section 19 )

The Magistrate may pass a residence order

a ) restraining the respondent from dispossessing or in any other manner disturbing the possession of the aggrieved person from the shared household, whether or not the respondent has a legal or equitable interest in the shared household;

( b ) directing the respondent to remove himself from the shared household;

( c ) restraining the respondent or any of his relatives from entering any portion of the shared household in which the aggrieved person resides;

( d ) restraining the respondent from alienating or disposing off the shared household or encumbering the same;

( e ) restraining the respondent from renouncing his rights in the shared household except with the leave of the Magistrate; or

( f ) directing the respondent to secure same level of alternate accommodation for the aggrieved person as enjoyed by her in the shared household or to pay rent for the same, if the circumstances so require.

The proviso clause for the section states that no order shall be passed under clause ( b ) against any person who is a woman.

The High Court of Madras opined that the Act contemplates two types of reliefs viz. ( a ) right to reside in shared household; and ( b ) right to seek residence orders under Section 19 of the Act—Section 19(1) of the Act empowers Magistrate to pass variety of residence order. Shared household would come into picture only when relief is sought in terms of Sections 19(1)( a ) to ( e ) of the Act. Aggrieved woman can seek orders to enable her to continue to reside in shared household or protection order to enable her to reside in shared household, then property, which is subject-matter, should be shared household. Aggrieved woman can seek relief of alternate accommodation in terms of Section 19(1)( f ) of the Act and in such case concept of shared household would not be attracted. Expression “shared household” occurring in Section 19(1)( f ) of the Act is just for purpose of enabling aggrieved woman to seek alternative accommodation, which would be on par with shared household that she enjoyed at some point of time, M. Muruganandam v. M. Megala , 2010 SCC Online Mad 6012 .

Monetary Relief ( Section 20 )

Under Section 20 of DV Act, an order for monetary relief can be passed by the court in case a woman has incurred expenditure as a result of violence. This may include expenses incurred by a woman on obtaining medical treatment, any loss of earnings, damage to property, etc. The aggrieved person can also claim for maintenance from her male partner.

The Magistrate may direct the respondent to pay monetary relief to meet the expenses incurred and losses suffered by the aggrieved person and any child of the aggrieved person as a result of the domestic violence and such relief may include, but is not limited to,—

( a ) the loss of earnings;

( b ) the medical expenses;

( c ) the loss caused due to the destruction, damage or removal of any property from the control of the aggrieved person; and

( d ) the maintenance for the aggrieved person as well as her children, if any, including an order under or in addition to an order of maintenance under Section 125 of the Code of Criminal Procedure, 1973 or any other law for the time being in force.

It has also been provided in the section that the monetary relief provided should be adequate, fair and reasonable and consistent with the standard of living to which the aggrieved person is accustomed. In case there is a failure in part of the respondent to make payment in terms of the monetary order, the Magistrate may direct the employer or a debtor of the respondent, to directly pay to the aggrieved person or to deposit with the court a portion of the wages or salaries or debt due to or accrued to the credit of the respondent, which amount may be adjusted towards the monetary relief payable by the respondent.

Custody Orders ( Section 21 )

The Magistrate may grant temporary custody of the children to the aggrieved woman or any person making an application on her behalf. This is to prevent a woman from being separated from her children, which itself is an abusive situation. Section 21 also states that the Magistrate may, at any stage of hearing of the application for protection order or for any other relief under this Act grant temporary custody of any child or children to the aggrieved person or the person making an application on her behalf and specify, if necessary, the arrangements for visit of such child or children by the respondent. However, the Magistrate may refuse such visit to such child or children, if it feels that any visit to the child or children by the respondent may be harmful.

Compensation Orders ( Section 22 )

The Magistrate may on an application being made by the aggrieved person, pass an order directing the respondent to pay compensation and damages for the injuries, including mental torture and emotional distress, caused by the acts of domestic violence committed by that respondent.

Magistrate’s power to grant interim and ex parte orders ( Section 23 )

Section 23 gives power to the Magistrate to pass such interim order as he deems just and proper and also if the Magistrate is satisfied that an application prima facie discloses that the respondent is committing, or has committed an act of domestic violence or that there is a likelihood that the respondent may commit an act of domestic violence, he may grant an ex parte order on the basis of the affidavit in such form, as may be prescribed, of the aggrieved person under Section 18, Section 19, Section 20, Section 21 or, as the case may be, Section 22 against the respondent.

Although the major objective of this law, being to protect the women against domestic violence has been secured, certain portions of the law still remains to be developed. This law provides civil remedies to the victims of domestic violence. Before enactment of this law, in order to seek any civil remedies such as divorce, custody of children, injunctions in any form or maintenance, a woman only had the option of taking recourse to the civil courts. Therefore, the DV Act has certainly brought about the required and necessary change in the system.

Although the Act provides exhaustive remedies to counter the issue of domestic violence certain terms and its interpretation needs to develop. The Act falls short in providing any relief to the male members in the community who are subjected to domestic violence, being one of the areas where the law falls short. However, it also needs to be considered that no crime can be abolished from the society completely, it is only with stringent reforms and mechanism that it can be curbed.

[1] Protection of Women from Domestic Violence Act, 2005

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What about husband being abused by wife ,there are instances of emotional, physical and verbal abuse by wife

Hi, Curious to know if the rules and sub rules; specially the rule 5 with sub rule 1 is mandatory or directory. Kindly suggest.

I need a help against domestic violence

We are really grateful for your blog post. You will find a lot of approaches after visiting your post. I was exactly searching for. Thanks for such post and please keep it up. Great work.

i want to know how long does a man get jailed if he abuse his wife regularly

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Domestic violence in india and constitutional provision for it.

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Domestic Violence in India and Constitutional Provision for it!

Now-a-days often when we scan through the newspaper or while watching the television, we come across news related to torture and brutality against various members of the family. Mostly these members comprise women in the age group of 15-40 years. This brutality has been termed as domestic violence.

‘Wife tortured and battered to death, girls facing sexual harassment in school or their workplace, and sometimes it’s astonishing but they face such vindictive behaviour in their own house from among the family members.’

Domestic violence against women has become very common in society and is present in every other household. Violence against women is rampant in India. According to India’s latest National Family Health Survey-Ill, which interviewed 1.25 lakh women in 28 states during 2005-06, over 40% of women reported being beaten by their husbands at some point of time.

Over 51% of the 75,000 men interviewed didn’t find anything wrong with assaulting their wives. More shockingly, around 54% of the women surveyed thought that such violence was justified on one ground or the other.

An earlier study done by Harvard on domestic violence in India had made another major finding—children of women beaten up or abused by husbands were 21% more likely to die before turning 5. Domestic violence is one of the crimes against women which is linked to their disadvantageous position in the society.

Domestic violence refers to violence against women especially in matrimonial homes. Therefore domestic violence is recognized as the significant barriers of the empowerment of women, with consequences of women’s health, their health health-seeking behaviour and their adoption of small family norm.

Indian Society makes Domestic Violence Invisible :

Indian society makes domestic violence invisible and leaves it cocooned by feelings of guilt and embarrassment; according to some findings, two of every five women in an abusive relationship in India do not speak up about the abuse they undergo because of shame and family honor. And this is despite the fact that surveys of women across urban slum; non-slum and rural areas have shown that up to fifty per cent of them have suffered from at least one form of domestic violence in their marital lives.

Unfortunately, this attitude which makes domestic violence an invisible factor in India’s social fabric vitiates not only societal responses to the issue but also institutional responses even though studies have repeatedly shown that domestic violence is one of the few phenomena which cuts across all the cultural, socioeconomic, educational, ethnic and religious barriers which usually divide society, and, absurdly enough, not only seems to increase with a rise in a woman’s education but also prevails among the so-called elite of society.

Laws to deal with domestic violence do exist and they include Section 113 A of the Indian Evidence Act, Sections 498 A and 304 B of the Indian Penal Code, and the Dowry Prohibition Act of 1961 and the Domestic Violence Act which came into force in October 2006. The effect of such laws is, however, currently limited.

For example, a report by Amnesty International observes, “Analysis of court decisions in one particular district of Maharashtra, Yavatmal, for example, shows that only 2.2 percent of the cases brought under 498 A during the period of 1990-96 resulted in conviction.”

A more pressing problem, however, is that although these laws exist to combat domestic violence, it is extremely difficult to ensure that they are implemented. Judicial records show that the conviction rates in cases of domestic violence are very low and these records don’t take into consideration those cases which never even make it to court.

Lengthy court proceedings, inordinate delays in investigation and irrational procedures are serious deterrents for women to approach courts, let alone see the entire case through.

Unequal Position of Women in India :

Looking at the domestic front, staring from Vedic age to twenty first century, women in India perhaps have never experienced equal rights and freedom compared to their male counterparts.

The concept of ‘Ardhangini’ [half of the body] seems to be restricted only in literatures and have never implemented in practical life. In addition to this, extracts from Ramcharitamanas of Tulsidas like ‘Dhol, Gauwnaar, Shudra, PashuaurNari; Sakal Tadanka Adhikari’ [drums, uncivilized illiterates, lower castes, animals and women are all fit to be beaten] besides other indicators like Pardaha system [hiding the face in veils], Sati system [self immersion of the lady in husband’s pyre] that are subject to women only; is a reflection of the history of women’s subordinate status.

In short, it is always the women who have to be in the tight rope, subject to inequality and looked down as an inferior sex. Staring from childhood to the end of her life she has to be under the control of father or husband or the son.

The subordinate status of women combined with socio cultural norms that are inclined towards patriarchy and masculinity can be considered as an important factor determining the domestic violence. During the British Raj, Sati and Pardah system was prevalent and it was directed towards women only.

Such violence is prevalent against women because the orthodox section of the society feels that women are not as strong as men and are not able to compete in this world. Even after proving their mettle in all fields in contemporary times, they still have to face domestic violence.

There are various other reasons also which lead to such cruelty against women. Earlier, sati was prevalent as people thought that if the women of the house re marries, then she will be allowed to take all the property which her husband has left for her and it will deprive the family members of the deceased person of its benefits.

So, they thought that the most appropriate method to get rid of all the problems was to burn the widow alive along with her deceased husband.

It was a myth that domestic violence was prevalent in rural areas or towns but now it is rampant in urban areas and in metropolitan cities also. The most common reasons for such brutality is baseless suspicion on one’s spouse, not bringing the desired amount of dowry as expected by the groom’s family, refusing sex and even for petty reasons like food not being served on time or women not being able to give ample time to her family and in-laws due to work pressure. For such reasons, the women have to go through mental, physical and psychological trauma as they face constant violence at home. They are beaten; subjected to abusive language and even burnt as they don’t fulfill all the needs and desires of their family members.

Defining Domestic Violence :

Domestic violence now can be defined as any physical, mental, sexual or psychological abuse or just an attempt of it which creates fear in the minds of women and bewilders them. In one such case, it so happened that a woman asked for a required amount of dowry and gifts for her first pregnancy and the girl’s father couldn’t manage the amount.

Some days later, the dead body of the girl was found near a tank. It was clear that the woman’s hands and legs were tied and she was given electric shocks and then when she dies, her body was disposed of.

In 1983, domestic violence was recognised as a specific criminal offence by the introduction of section 498-A into the Indian Penal Code. This section deals with cruelty by a husband or his family towards a married woman.

Four types of cruelty are dealt with by this law:

a. Conduct that is likely to drive a woman to suicide,

b. Conduct which is likely to cause grave injury to the life, limb or health of the woman,

c. Harassment with the purpose of forcing the woman or her relatives to give some property, or

d. Harassment because the woman or her relatives is unable to yield to demands for more money or does not give some property.

Domestic Violence in Rural Areas :

The possibilities of domestic violence are more rampant in rural areas. In rural areas, young girls are married off at the tender age of 12 or 13 before they reach puberty. They have little knowledge about sexual relationships which they are going to share with their husband. On the other hand, men are mature enough and they expect a lot from their marriage. When the women can’t fulfill the needs and urges of the man, he starts exploiting and man-handling her. She has no clue how to handle the situation and so she escapes to her father’s house.

But there also, she gets no sympathy from her own parents and she is forced to return to her husband. When she comes back, the treatment which is met out to her is even worse and due to all these reasons, when situations go out of her hand and she can’t bear anymore then she is forced to end her life?

But she leaves back questions like who is responsible for her condition and for her death; her parents who didn’t care to understand her situation, her husband who misbehaved with her or she herself? Rural women are less or not educated at all, so it is difficult for them to find a solution to fight against domestic violence.

They are not even welcome in their father’s family. No one wants to understand their status or mental condition. Sometimes, their own relatives hold them responsible for not being able to keep the man happy. Such social dogmas weaken a woman from inside and she is forced to take some drastic step which can put an end to her problems permanently.

Domestic Violence in Urban Areas :

Well if people believe that only women in the rural areas are subjected to domestic violence, then we should think again. It is present even in the well-educated sections of Indian society.

Even educated men who claims to have a rational mind and the ability to think and distinguish between what is correct and what is wrong make such grave mistakes of domestic violence.

Even if they are educated, when it comes to giving women a position at par with them, their orthodox mentality comes forth. They can never accept the fact that their wife (better half) can prosper more than them and have a better position in the society.

If a wife is earning more than a husband, it also becomes a reason for domestic violence. But it has been noticed that majority of the women in the fear of bringing bad name to their family, don’t open their mouths and go on suffering through all the pain and pressure.

However educated a man is, the wish for a male child is prevalent even in today’s society. Even well- to-do families wish to have a male child so that when he grows up, he can carry forward the family business or any family legacy.

But the most important question is that can’t a girl do the same work which is expected of a boy? Women today have proved that they are no less than men in any field. Yet, in the greed of a male child, women have to face a lot of violence.

The fact remains that whether a woman will give birth to a boy or a girl depends on the man or husband and not the woman. The sperm of the man decides whether the baby will be a girl or a boy. Then why is a woman cursed or ill-treated if she gives birth to a girl child. In any case, a child is a gift of God and it should be happily accepted.

The Domestic Violence Act of 2005 :

The Domestic Violence Act of 2005 was passed for the protection of women. It was brought forth by the Indian government from October 26, 2006.

Domestic Violence:

(1) For the purposes of this Act, any conduct of the respondent shall constitute domestic violence if he (a) habitually assaults or makes the life of the aggrieved person miserable by cruelty of conduct even if such conduct does not amount to physical ill-treatment; or (b) forces the aggrieved person to lead an immoral life; or (c) otherwise injures or harms the aggrieved person.

(2) Nothing contained in clause (c) of sub-section (1) shall amount to domestic violence if the pursuit of course of conduct by the respondent was reasonable for his own protection or for the protection of his or another’s property.

The Act tried to cover a wide range of problems which a woman faces in her day-to-day life. It tries to give relief to those who has been or is in a relationship in which one of the party is an abuser and is been living in a shared household by marriage, adoption etc.

Domestic violence includes actual abuse or even the threat of abuse. Even cases of dowry demands will also be covered in this section. The Act is beneficial for women as it allows the woman to reside in her matrimonial house irrespective of whether she has any title or right over that house.

This right is secured by a residence order, which is passed by a court. These residence orders cannot be passed against anyone who is a woman. The Act is also beneficial as it stops the abuser from committing or threatening to commit any other violence against the women.

They are given full protection from the abuser. The protection extends to such limit where the abuser is not allowed to meet the women or enter her workplace and interact with her. The draft Act provides for appointment of Protection Officers and NGOs to provide assistance to the woman with respect to medical examination, legal aid, safe shelter, etc.

The Act even makes scope for punishment to the abuser which may be simple punishment. The same punishment can be meted out by the Protection officers also if they don’t carry out their assigned duty in a proper and acceptable way.

They can be given punishment of simple imprisonment. However, this Act faces a lot of criticisms and thus has not been accepted wholeheartedly by all the sections of the society. It is said that in today’s world not only women but also men faces a lot of harassment and abuse and this Act gives special privilege to only women and doesn’t recognize the rights of men.

Thus, many organisations which work for the welfare of men so that they don’t face any kind of abuse at their household or workplace oppose this Act. The Act does not cover physical harassment and mental harassment. Even a sophisticated judge may have difficulty deciding if an act really caused mental harassment. On several occasions, the judge changes his mind many times on deciding if an act is mental harassment or not, but the law says that she can go to the protection officer to file the case. In many cases, women file this case just to earn monthly interim maintenance from her husband.

Need to Interpret DVA Rationally :

Compared to Sec: 498 (a) of the Indian Penal Code (IPC), the DVA is a civil law that gives aggrieved women their rights and practical remedies in terms of protection order, a home, monetary relief, temporary custody and compensation, among other benefits.

Sec: 498 (a) criminalises the family as an institution, but DVA aims at safeguarding the family system while also providing much relief to female victims of domestic abuse. DVA needs to be interpreted with much rationality and open-mindedness.

Domestic Violence Act not against men:

The fact is that most men think the DVA is against them, which is not so. This act is against violence. Point is does the troubled woman have the power, support and negotiating abilities to stop the violence meted out on her? We need to change our perspective towards this Act.

The role of the police in this process is equally important. “People are not aware of protection officers. The police, too, needs to be aware of the DVA, because this law has better options as compared to Sec: 498 (a) of IPC. Next is to connect the aggrieved woman to the legal aid committee, lawyers, protection officers and counselors.

Timely interaction and a coordinated effort from all these sources is very important. The judiciary’s inability to correctly interpret the nature of violence or harassment faced by a woman is also a lacuna. Very often, judges concerned do not understand the application of DVA. Most of them are not aware or are sensitive enough to understand issues of domestic violence.

The nature of mental harassment in such a case cannot be measured. This law allows auditing of the various types of harassment, but the focus is often on only physical harassment.

Mental, sexual and economic harassment are not taken seriously by the judges themselves because the victim cannot always produce evidence for the same. Understanding a woman as a human being in a relationship is very important, but this is not happening and leading to contradictory judgements.

Elucidating Sec: 28 of the DVA:

This section says that a magistrate can establish his own procedure to decide the judgment in order for the victim to get justice. Magistrate, the lowest in hierarchy is given the authority of High Court judges, but they don’t have the guts or a right- based attitude to interpret the DVA correctly. This provision is very good, but not being used properly by the magistrate.

Suggestions :

Some steps which can be taken to at least reduce the violence against women is that they should receive education. Education is a powerful tool which helps women to decipher what is beneficial or what is harmful for them. It helps them to choose all such better means which will help them lead a better life.

Women should be made self-reliant. They should earn for themselves and should not be dependent on anyone for any financial help or for fulfilling their desires. This surely is an effective way to curb domestic violence. There are many other ways which can be thought of and used in our lives which will help to bring down the scale of domestic violence.

Domestic violence against women is a growing menace and if we have to stop such a menace then we have to work together. Even the women who are a victim of domestic violence should raise their voices and fight for themselves. Keeping quite is not a solution. One who surrenders to such violence is a much bigger culprit than the one who commits such violence.

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Over ten million people per year experience domestic violence. 3. Intimate partner domestic violence affects individuals who identify as men, women, and non-binary. 4. However, this note focuses on the primary target of domestic violence: women. The most common perpetrators of violence against women are male intimate partners or ex-partners. 5
Understanding Domestic Violence: Theories, Challenges, and Remedies, by
This article is a response to three questions posed by the editor about past and future research on interpersonal violence by focusing in this essay on domestic violence:(a) What is the most important thing we have learned about this social problem in the last 20 years, (b) what is the most important thing we need to learn about it in the next 10 years, and (c) what is the most promising ...
PDF The Constitutional Court Provides Succour for Victims of Domestic
Andrews, Penelope, "The Constitutional Court Provides Succour for Victims of Domestic Violence - S v Baloyi" (2000). Articles & Chapters. 1194. This Article is brought to you for free and open access by the Faculty Scholarship at DigitalCommons@NYLS. It has been accepted for inclusion in Articles & Chapters by an authorized administrator of ...
Violence against women: Where are the solutions?
Domestic legal remedies in India . The Constitution of India: Article 14 is on equality. Difference in treatment between men and women by the state is totally prohibited on grounds of religion race, caste, sex or place of birth. Article 21 is on right to live; right to live with human dignity.
PDF Self-defense claim in Domestic violence case
Independent Written Essay within the Field of Constitutional law and Human Rights, 15 hp [Master‟s Programme in Constitutional Law and Human Rights, 60 hp] ... domestic violence and kill their former or current partners have different view and experience of their household from other (non-victim‟s) women who does not experience domestic ...
PDF The Criminalization of DomesticViolence: Promises and Limits
These reforms held great promise. The "criminalization" of do- mestic violence cases beginning in the 1970's sought to increase the certainty and severity of legal responses, thereby correcting historical, legal, and moral disparities in the legal protections. 4. afforded to battered women (Zorza, 1992).
(PDF) Domestic Violence: A Literature Review Reflecting an
Abstract. This empirical literature review examines and synthesizes inter-national domestic violence literature related to prevalence, types of violence, honor and dowry killings, health=pregnancy ...
Bringing Governance Home: Feminists, Domestic Violence, and ...
Feminists have had spectacular successes transnationally in shifting the norms governing family life through legislation proscribing domestic violence. This article looks at the case of India and asks, how the pursuit of legal rights has shaped the Indian feminist conceptualisations of domestic violence. Through a mapping of feminist interventions on violence in the home since the 1970s, the ...
(PDF) The protection of women from domestics violence act 2005 A
In order to create such violence which is free from any violence and provide protection to women against exploitation, discrimination and violence, The PWDVA 2005, constitutional and legal ...
PDF Violence Against Women and Girls: Law and Policy Framework in India
The constitution guarantees that all citizens of India (including women) have the fundamental right to live in peace and harmony, a right to equality, freedom, freedom of religion, right against exploitation, and a right to constitutional remedies. Constitution of India Part IV (Article 36 - 51) Directive Principles
United States v. Rahimi: Does a law prohibiting a person subject to a
United States v. Rahimi concerns whether a federal law that prohibits persons subject to domestic-violence restraining orders from possessing firearms 1 Footnote 1 8 United Sates Code, section 922(g)(8) (It shall be unlawful for any person . . . who is subject to a court order that-(A) was issued after a hearing of which such person received actual notice, and at which such person had an ...
PDF Study Material on Domestic Violence Act
Domestic Violence Act 2005, was brought into force by the Indian government from October of 2006. The Domestic Violence Act was originally passed by Parliament in August of 2005 and ... Constitutional Perspective The enactment in question was passed by the Parliament with recourse to Article 253 of the Constitution. This provision confers on ...
Law on Domestic Violence [Protection of Women from Domestic Violence
To minimize the cumbersome position of law, be it procedural or substantive, the Protection of Women from Domestic Violence Act, 2005 was enacted to protect the women from acts of domestic violence. The legislative intent was further emphasized by the Supreme Court of India in the case of Indra Sarma v. V.K.V Sarma, (2013) 15 SCC 755 wherein it ...
United States v. Rahimi: Does a law prohibiting a person subject to a
United States v. Rahimi concerns whether a federal law that prohibits persons subject to domestic-violence restraining orders from possessing firearms 1 Footnote 18 United Sates Code, section 922(g)(8) (It shall be unlawful for any person . . . who is subject to a court order that-(A) was issued after a hearing of which such person received actual notice, and at which such person had an ...
Domestic Violence in India and Constitutional Provision for it
ADVERTISEMENTS: Domestic Violence in India and Constitutional Provision for it! Now-a-days often when we scan through the newspaper or while watching the television, we come across news related to torture and brutality against various members of the family. Mostly these members comprise women in the age group of 15-40 years. This brutality has been termed […]
United States v. Rahimi: Does a law prohibiting a person subject to a
United States v. Rahimi concerns whether a federal law that prohibits persons subject to domestic-violence restraining or ders from possessing firearms 1 Footnote 18 United Sates Code, section 922(g)(8) (It shall be unlawful f or any person . . . who is subject to a court or der that-(A) was issued after a hearing of which such person received actual notice, and at which such person had an opp ...