• Brain Booster Articles

A CRITICAL STUDY OF DOMESTIC VIOLENCE

Author: Sheikh Aman Rana, Pursuing LL.M. from Chanakya National Law University


INTRODUCTION

“Of all the evils for which man has made himself responsible, none is so degrading, so shocking or so brutal as his abuse of the better half of humanity; the female sex.” Mahatma Gandhi, the Father of Nation.


From the times since immemorial, men and women have worked and contributed together in the sustenance and development of their families and later to the generations to come. In the early Vedic period, women were treated equally in every sphere of society. They were given a prestigious position in society. There is a Shloka in Sanskrit thatcross-examines the above statements which“yatranaaryastupuujyanteramantetatradevataahyatraitaastunapuujyantesarvaastatraaphalaahkriyaa” which means, where a woman is respected, the place becomes God's abode, by God's abode, it means, divine qualities, good deeds, peace, and harmony. It was a wonderful period for Women. However, in the following periods, there were various setbacks to this situation. There is an extract from the Ramcharitmanas which states that ‘Dhol, Gauwnaar, Shudra, Pashuour Nari; SakalTadan ka Adhikari’ [drums, uncivilized illiterates, lower castes, animals and women are all fit to be beaten] is evidenceof women’s declining status in the society. Even in the later periods like the Medieval periods, the condition of women and their rights was still degrading. There were restrictions put on the rights and privileges of women and the conditions of women were only further deteriorating. British periods saw the mixed scenarios of women’s status where one hand there were cases of the Sati System, Child marriage, female infanticide arose[1], on the other hand, various reformers played a crucial part in curbing such menaces against women. The womenwere always looked down as an inferior gender where her roles and duties are fixed by society even before she is born.


In Contemporary India, the Constitution provides for equal opportunity and rights of all in society. The Preamble of the Constitution provides to all citizens equal opportunity and equality of status. Article 14 of the Constitution guarantees equality before the law to all citizens within the land of India[2]. Article 15[3]forbids discrimination on the basis of religion, race, caste, sex, and place of birth, or any of them. Article 51-A (e) in Part IV-A provides a fundamental duty that it is the duty of every citizen to renounce practices derogatory to the dignity of women. Even after so many provisions for the betterment of the status of women, the women in India have been the victims of different forms of violence.


All these Laws and statutes are nothing more than a mirage for the women who have to face violence within the four walls of the house which is supposed to be the safest place in the whole world for them. Such abuse or violence is called domestic violence either by the intimate partner or the other family members. It is an extreme form of abuse as it is committed by the institution which is supposed to be a place of love, affection, warmth, care, and solidarity, and utmost care is expected from it i.e.Family. This is the reason why domestic violence is more than just violence as it causes a mental trauma and psychological effect upon the person affected. This violence can take the forms of physical assault, financial abuse, sexual abuse, and psychological abuse.


CONCEPT OF DOMESTIC VIOLENCE

Domestic Violence can be defined as a pattern of behavior in which one person is trying to control another person by way of coercion, threat, violent behavior, harassment including sexual violence in a domestic setting such as in marriage or cohabitation. Domestic violence occurs in various forms such as emotional, physical, sexual, etc.

The Protection of Women from Domestic Violence Act 2005[4] provides a broad definition of domestic violence. Section 37 defines domestic violence includes any act or conduct or omission, or commission of respondent who 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

It includes:

  1. Physical abuse means any act which causes bodily pain, harm, or danger to life, limb, or health and includes assault, criminal intimidation, and criminal force.

  2. Sexual abuse means any act of sexual nature which violates the dignity of a human being.

  3. Verbal and emotional abuse insults, ridicule, humiliation, name-calling, and specially for not having a male child and repeated threats of physical pain to any person in whom the aggrieved person is interested.

  4. Economic abuse includes deprivation of all or any economic or financial resources to which aggrieved person is entitled under any law or custom or disposal of household effects or prohibition or restriction to continued access to resources or facilities to which aggrieved person is entitled.


Domestic legal remedies in India

The Constitution of India: Article 14 deals with equality. The distinction in treatment between men and women is strictly prohibited by the state based on religion, race, gender, or place of birth. Article 21 has the right to life; the right to live in human dignity.


National Women's Commission: Established as a formal body in January 1992 under the National Women's Commission Act, 1990 to review the constitution and laws to protect women; to recommend legal remedies, facilitate grievance redressal and advise Government on all policy issues affecting women.


Supreme Court Guidelines on Sexual Harassment in the Workplace: For the first time, the Court used the tool of international human rights law, CEDAW to approve a set of guidelines. The Court defined sexual harassment in the workplace as any unacceptable act, behavior, words, or sexual expression. “It shall be the duty of the employer or other persons responsible for the workplace or other institutions to prevent or prevent the conduct of sexual harassment and to provide for procedures for resolving, resolving, or prosecuting acts of sexual harassment by taking action. all necessary steps. ”


Law related to violence against women includes the Indian Penal Code (IPC), civil law, and special laws. The Money Laundering Act (DPA), 1961 applies to all people, Hindus, Muslims, Christians, Parsis, and Jews. Giving, taking, or sponsoring giving or taking Dowry is a crime, which is a punishment. A few provinces (Bihar, West Bengal, Orissa, Haryana, Himachal Pradesh, and Punjab) have amended DPA to give it more teeth. The law was found to have failed to prevent evil.


When a woman's death is caused by any burn or injury or otherwise occurs under normal circumstances, within 7 years of marriage, and if it is shown that shortly before her death, she suffered cruelty or abuse by her husband or any relative. to her husband because of or in connection with any demand for Dowry, that death will be termed “death of the dock” and that husband or relative will be considered responsible for his or her death (IPC 304-B). 113-B Indian Law Act, 1872, was introduced to consider the death of Dowry.


Preventing the suicide of a child or a madman: If any person under the age of 18, any insane person, any playful person, any fool, any person in a state of intoxication, suicide, or any other person supporting the committing suicide, should. be punished with death or imprisonment or imprisonment for a period not exceeding 10 years and shall pay a fine (305 IPC). The difficulty, however, is that when a victim of a serious mental illness is shown, the benefit of the doubt is given to the respondent and he or she is released.


Suicide prevention: If any person commits suicide, anyone who supports such a suicide will be punished with imprisonment for any term of up to 10 years and will be fined (306 IPC). 113-A of the Indian Evidence Act, 1872, is related to speculation as reducing suicide. Offenses of bribery and suicide prevention are apparent, free of charge, and non-refundable.


Voluntary sexual intercourse against the natural order of any man, woman, or animal is a crime punishable by imprisonment and a fine. This provision is not applicable at all (377 IPC).

  • Other cases referred to in the IPC are: Causing a miscarriage (312 IPC), miscarriage without a woman's consent (313 IPC), death caused by an act performed to have an abortion; if the act was performed without the woman's consent (314 IPC), the act was performed to prevent the child from being born alive or cause it to die after birth (315 IPC) and depressive death of an unborn child as soon as possible in an act that could be intentional manslaughter (316 IPC).

  • The Family Courts Act, 1984: The Act was established to promote reconciliation, as well as for the immediate resolution of marital disputes and family matters.

  • Women's (Disgraceful) Representation Act, 1986: This Act prohibits the misrepresentation of women through advertisements or publications, documents, drawings, illustrations, or any other form is prohibited.

  • Commission of Sati (Prevention) Act, 1987: This Act is for the prevention and promotion of sati.

  • The Protection of Women in Domestic Violence Act, 2005, [5]was enacted to provide for the effective protection of the constitutionally guaranteed rights of women who are victims of violence of any kind. and kindness that happens in the family and related matters. It recognizes 4 types of domestic violence: physical, verbal, and emotional (including infertility, illegal marriage), and economic (including stridhan-related violence, Dowry, property), and sexual (including sexual harassment and marital rape).


According to Section 498-A of the Indian law code, 1860 -Everyone who is a spouse or relative of a woman's husband, who treats those women mercilessly shall be liable to imprisonment for a term not exceeding 3 years and with no power to fine. Section 498A of the IPC and 113A of the Evidence Act of India is enshrined in the code of law (amendment) Act, 1983. This section seeks to exempt the cruelty of newlyweds due to Dowry or other similar demands from her husband or by-laws. The above-mentioned principle was intended to cure widespread evil. As expected, the victims of such violence were women who could not ask for help from government officials to voice their grievances. in any case, social conditions family traditions, etc. prevent brides from seeking any response from government officials. Some women often abuse 498A to abuse and get their husband and wife convicted of violating this section, whose intentions and intentions are raised with baseless false accusations leveled against husbands to escape or harm the family.


In a recent landmark case- HiralHarsora v. Kusum Harsora (2016) the Supreme Court has expanded the scope of the Domestic Violence Act of 2005 by ordering the removal of the word “Old Man” from it, paving the way for the persecution of girls and even non-adults by involving women in violence and abuse. The Supreme Court has ordered the reduction of 2 of the terms (2 q4) of the Domestic Violence Act 2005. A major challenge in the laws on violence is that during the past year there has been evidence of many cases of abuse of women. provisions created for her benefit to prosecute their husbands on false charges.


LANDMARK JUDGMENTS

In the case of D. Veluswamy v. D. Patchaiammal

The Supreme Court has given a broad definition of the term “victim” under “section 2 (a) of the Domestic Violence Act” and the court further noted that all marital relations cannot be “such a relationship of” marriage to the benefit of the “Domestic Violence Act”. But the victim in a lasting relationship can receive the "benefit of the action" if the five conditions imposed by the court, in this case, are proved by the relevant evidence. "The court also considered the 'final' status in this case and stated that" when a man has a 'guardian', the relationship will not be the same as marriage.


Palimony: This term was used by the court in this case and refers to maintenance grants for “women who have been living” with a man for a long time without being married and then divorced by him.


In the case entitled “Sandhya Wankhede vs. Manoj Bhimrao Wankhede ”, the High Court has made a landmark decision by interpreting“ Section 2 (q) of the Domestic Violence Act ”. Section 2 (q) of the DV Act defines ‘defendant’ as “any adult male and male offender who has sought relief through this act:

It depends on whether the abusive spouse or wife living in a marital relationship can also file a complaint against a male relative or male partner ".

The High Court was questioned on the matter as in terms of Section 2 (q), a victim may “complain about an older male member, but may not complain with any female relative of her husband” or a male partner, for example, mother-in-law, mother-in-law, etc. However, in the case mentioned above, “the Supreme Court ruled that Section 2 (q) does not include the female relatives of the husband or the male partner in the meeting place. a complaint that may be lodged under the provisions of the Domestic Violence Act, 2005 ”.


MEASURES TO CONTROL AND END DOMESTIC VIOLENCE

In order to eliminate such a problem in view of the current situation, action must be taken by the women themselves. They must fight this injustice and fight for the cause that affects them the most. However, if there are obstacles along the way, there are various women's organizations and NGOs working to help women in these situations. Even the police are working very fast these days which is a good sign and there is no need to worry about women. Alternatively it would be to contact the National Women's Commission for immediate action on this matter or to set up State Commissioners in almost every province to address their grievances.


Domestic violence often has a negative impact on the victim. They are experiencing emotional, psychological, and physical changes. Domestic violence has a profound effect on victims, families, communities and their well-being. In order to stop all this, there are a variety of things to follow;

  • Awareness: One of the major steps in preventing domestic violence is to make the homeowners' organization aware of the serious barriers and the consequences of domestic violence. Establish rules against domestic violence and impose severe penalties on the victim. Gather more information and educate people about the harmful effects of domestic violence. It is not right for us to ignore such things and instead raise our voices against them.


  • The need for stricter laws: It is very important that the law against domestic violence should be strictly enforced. Domestic violence was recognized as a serious crime in 1983 by introducing section 498-A with the Indian finance code. This action helps to end domestic violence between family members.


  • Empowered NGOs: To prevent domestic violence, individuals may also seek the help of non-governmental organizations. These organizations will make people aware of the consequences and get justice for the victim.


  • Seek police assistance: If there is serious violence, people can seek legal help from the police and end domestic violence. The police play a vital role in preventing domestic violence. Special training on how to deal with domestic violence issues is provided by the police. They must regard domestic violence as a serious health issue that can cause serious damage to families.


  • Be aware of the facts of domestic violence: In a flat,the owners’ organization must make it obligatory for residents to learn all the facts of domestic violence. They should never ignore anyone who is a victim of domestic violence; instead, they should warn all the authorities.


  • Encourage and do not intimidate: A large number of people stop when they see any form of domestic violence. This happens out of fear of injury or damage to property. People often ignore it and keep the mother from incidents like these. In such cases, it is very important to plan a meeting and encourage people to come up with solutions.


  • Advice: All apartments must have a mentor who can advise people about the risk. Doing so will give people the courage to speak up when they are victims or when they see something like this.


CONCLUSION AND SUGGESTIONS

Violence against women is rampant in India. The above analysis reveals not only the increase in domestic violence (21 percent, from 15 years) in India but also the acceptance of the majority of married women (57 percent) at least one reason for forgiving a man for beating his wife. There is also a wide gap between the provinces in the increase and the acceptance of violence among women. In addition to this, it is noteworthy that there are many variables such as age, women's education, age of first marriage, racial and religious categories, women's independence, exposure to the media, women's employment status, and quality of life outside the home has a significant impact on the increase in domestic violence. However, the husbands are reported to be perpetrators of violence who show one reason or another. The reason is that women in the country are at high risk due to low levels of health which is characterized by widespread poverty, lack of education, high mortality rates among people under five years of age, poor health, high fertility rates, and high maternal mortality rates. Another factor contributing to violence against women is the perception that women have not changed much. Violence was perpetrated against women inside and outside her home.


Governments and non-governmental organizations (NGOs) are working hard to eliminate or reduce violence against women. Government efforts are in the process of enacting appropriate legislation, issuing directives, and establishing various women's welfare programs. But their implementation is still delayed, as low-level government officials are not sensitive to gender. Volunteers, on the other hand, take both preventive and response measures. But the efforts of the voluntary organizations are hampered by a lack of funding and infrastructure. A girl child education is the first step toward a better society with fewer incidents of violence. Campaigns aimed at men and boys to increase awareness and change attitudes toward gender inequality are also effective tools. As individuals and responsible citizens, we need to spread awareness and report any act of violence against women around us. For a society free of violence to be healthy the dignity of each individual must be respected. When all people are equal. Women should be treated equally to men. To achieve this goal each person regardless of gender is to contribute to his or her work. The community starts at home so each member of the household has a role to play. Domestic violence is a private matter if our people become sympathetic and begin to change their way of thinking, things will change. Expecting major changes through legislation is not possible, the law is to support and help prevent the occurrence of illegal activities. People are expected to change. In conclusion, it is, therefore, necessary for all sectors of society to contribute to ensuring a non-violent life for every woman.


[1] MAMTA RAO, LAW RELATING TO WOMEN AND CHILDREN, 28(Eastern Book Company, Lucknow,3 ed., 2012) [2] INDIA CONST. Art.14. [3] INDIA CONST.art.15, clause 1 [4]Section 3, The Protection of Women from Domestic Violence Act, 2005 No.43 Act of Parliament, 2005. [5]The Protection from Women in Domestic Violence Act (PWDVA), 2005