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Abstract:
The biggest problem that women face today is violence against them. Violence is broad of two kinds: one which occurred a public place and is punishable under sections 354, 509, 376, etc of the Indian Penal Code, and another one occurring with the family and is punishable under sections 304-B, 306, 498A of the IPC. In a male-dominated society, women have been victims of violence and exploitation. In India, women have been socially, economically, physically, psychologically, and sexually exploited. In India, domestic violence is widely prevalent but largely invisible. There is a plethora of loss on various aspects of the problem of women namely demand of dowry, sexual assault and female foeticide, trafficking, and sexual harassment, but the most vulnerable area is domestic violence. The concept of sex equality, womens empowerment, etc granted by the constitution is a myth to millions of women, who are subject to various kinds of violence in their homes. In India, domestic violence is widely prevalent but largely invisible in the public domain. Ordinarily, laws of cruelty, assault, etc against women were inadequate to deal with violence against women within a domestic relationship. However, keeping in view the rights guaranteed under Articles 14, 15, and 21 of the Constitution, the legislation The Protection Of Women From Domestic Violence Act, 2005 was enacted to protect women from being victims of domestic violence and to prevent the occurrence of domestic violence in the society. The said act came into force on 26th October 2006. The act is enacted for eliminating all sorts of discrimination against women. It has been a unique combination of civil and criminal laws. The act is progressive not only because it recognizes women who are in live-in relationships but also extends protection to other women in the household including sisters and mothers. It is the bonafide legislation to enhance justice for women. This act supplements the existing laws governing marriage, divorce, custody of children, and property.
Domestic Violence Act 2005:
Historical Background:-
An average Indian woman is bound by all the social constraints that men are not bound by. She is brought up with the values to live a chaste, righteous, and moral life. She is the ijjat of the family and this ijjat is often related to her remaining virgin before getting married. With such an upbringing, it is not easy for a woman to disclose that she is a victim of rape. There is no guarantee that her family will support her and she will be accepted in society with dignity. Against the backdrop of such a situation, the parliament has now empowered Indian women with a law to protect themselves from violence of any kind occurring within the family. Therefore, there are reasons to cheer the enactment of the Protection of Women from Domestic Violence Act, of 2005. This path-breaking legislation seeks to protect women from all forms of domestic violence and to check their harassment and exploitation by family members or relatives. Women will now be able to take legal action against abusive husbands and other relatives who harass them.
Provisions Under the Indian Penal Code-
Until recently there was no definition of domestic violence in Indian law. This does not mean that acts of domestic violence were not recognized in India. Besides recognizing and punishing the acts of cruelty under criminal law it is also considered a ground for divorce under all the personal laws and the Special Marriage Act. Domestic violence is often understood to constitute such cruel conduct towards the woman. The Indian Penal Code, Criminal Procedure Code of India (section 174), and Indian Evidence Act (Section 113A and 113B) contain specific provisions penalizing dowry demands, dowry deaths, and cruelty against women, all of which are forms of domestic violence against women. The introduction of Section 498-A in the IPC in 1983 was significant in bringing domestic violence to the fore. Section 498 reads as follows-
Husband or relative of husband of a woman subjecting her to cruelty.-Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine.
Explanation-
For the purpose of this section, ‘cruelty’ means-
- (a) Any willful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb, or health whether mental or physical of the woman; or
- (b) Harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.
However, Section 498A was not enough to fight domestic violence. In 1986 Section 304-B pertaining to Dowry Deaths was introduced. However, this section relates only to dowry deaths and to no other form of violence. Other provisions of the Indian penal Code relating to offenses of assault, hurt, grievous hurt, dowry, death murder, rape etc, are also often used against the perpetrators of violence. The problem however is that such criminal law remedies do not succeed in providing immediate or emergency protection to the victims of domestic violence. Thus, a desperate need was felt for an Act which could specifically cater to this cause.
Definitions:-
‘Domestic violence refers to any act of violence against women by the husbands or in-laws. Physical violence is defined as any act intended to harm or injure or inflict pain on a woman. Sexual violence can also be termed physical violence. It refers to any act of non-consensual sexual activity. It can range from unwanted sexual attention to rape. Mental violence is any behavior or lack of it by the husband and in-laws intended to undermine the womans self-confidence or lead to a lowered or negative self-esteem.
In all societies, where patriarchal family structure prevails, the patriarch from other men protects women, but they become victims of men in their own families.
‘Domestic Violence is violence between intimates living to gather or who have previously cohabited’.
Causes of Domestic Violence:-
A number of studies have been conducted to identify the precipitating factors leading to Domestic violence.
- Personal Factors:-Some scholars have attributed abuse to the personality factors of either the battered or the batterer or both. It is assumed that either one or both spouses possess certain characteristics that make them prone to wife battering. Men who assault their wives have low self-esteem and use violence to compensate the feelings of inadequacy. Wife-beaters have been described as sadistic, passive-aggressive, addiction-prone, jealous, and dependent. Women who as victims are described; as dependent, having low self-esteem, and feeling of inadequacy and helplessness. Some researchers, however, report, just opposite personality profiles of battered women. They report the picture of battered women as aggressive, masculine, frigid, and masochistic.
- Social learning:-Violence in the family of origin increases both a womans vulnerability and a mans propensity to abuse his wife and/or children. Men who have experienced violent childhoods are more likely to grow up and assault their wives than individuals who have not experienced childhood violence. Researchers have found that both offenders & victims had violence-ridden childhoods. Although the chances of being an offender and victim are increased if one grows up in a violent home, there are many violent people who had limited exposure to violence as children, and some who experienced extremely violent childhoods and grew up to be non-violent.
- Economic Causes:-Womens economic dependence on men is one of the major causes of domestic violence. Women have limited access to cash and credit. Further are denied equal access to education as men therefore majority of them are engaged in low-level occupations. There are discriminatory laws regarding inheritance, property rights, use of communal lands, and maintenance after divorce or widowhood. Such discriminatory practices make women dependent on men and thus lack of economic resources underpins womens vulnerability to violence and there is continuous exploitation of women.
- Cultural Factors:-Cultural ideologies both in industrialized and developing countries provide legitimacy for violence against women in certain circumstances. Religious and historical traditions in the past have sanctioned the chastising and beating of wives. The physical punishment of wives has been particularly sanctioned under the notion of entitlement and ownership of women. Male control of family wealth inevitably places decision-making authority in male hands, leading to male dominance and proprietary rights over women and girls. The concept of ownership, in turn, legitimizes control over womens sexuality, which in many law codes has been deemed essential to ensure patrilineal inheritance. Womens sexuality is also tied to the concept of family honor in many societies. Traditional norms in these societies allow the killing of errant daughters, sisters, and wives suspected of defiling the honor of the family by indulging in forbidden sex or marrying and divorcing without the consent of the family. By the same logic, the honor of a rival ethnic group or society can be defiled by acts of sexual violence against its women.
Consequences:
Domestic violence is a pressing human rights issue that prevents women from fully realizing their rights to social equality, good health, and economic opportunities.
- Economic consequences:-There are two levels at which the economic cost of domestic violence can be estimated: the society-wide (macro) level, and the household/individual (micro) level. Studies in the United States have estimated the annual cost of domestic violence to be anywhere from US$5-10 billion (Meyer 1992) to $67 billion.
- Indirect costs: impact on child well-being, female and child mortality, inter-generational social and psychological costs. The impact of violence on the production and reproduction of the household economy is also important to understand and estimate. Violence affects not only the individual woman, but also the very survival of the household through loss of productivity, loss of income, and increased costs
- Direct costs: loss of income, productivity loss, health care costs, housing costs, and costs of social services. In a study, it was reported that
- Loss of workdays (including housework) for the woman;
- Loss of workdays for the husband;
- Consequent fall in total income; and
- Healthcare expenditure due to violence-related injuries and symptoms.
- Health consequences:-Domestic Violence not only poses a direct threat to womens health but also has adverse consequences for other aspects of womens health and well-being and for the survival and well-being of children. The experience of domestic violence can have both fatal and nonfatal outcomes for women and their children. Fatal outcomes related to domestic violence for women can result directly through homicide or indirectly through suicide and maternal or AIDS-related mortality. Nonfatal outcomes include manifestations of adverse mental, physical, and reproductive health outcomes and negative health behaviors. Included among the mental health problems found to occur more frequently among abused women than among those who are not abused are higher rates of depression, posttraumatic stress, and eating disorders. Poor physical health among abused women manifests as chronic conditions including chronic pain, injuries, gastrointestinal disorders, and generally poor health status among others. Abused womens reproductive health is also compromised through much higher rates of gynecological problems, HIV and sexually transmitted infections (STIs), miscarriages, abortions, unwanted pregnancies, and low birth weight (Campbell, 2002). Lack of sexual autonomy associated with the experience of domestic violence can have several different fertility-related outcomes, including a large number of births, births that are unwanted, short intervals between births, and low contraceptive use, especially in relation to the expressed need for fertility control. Negative health behaviors include overeating, alcohol and drug abuse, and sexual risk-taking.
Definition of domestic violence according to the Act -2005
The conduct of the respondent shall constitute domestic violence in case it
- (a) Harms or injure 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.
Manifestations of Domestic Violence
- Physical Abuse- hitting, slapping, kicking, punching, burning, choking, using physical objects to cause injury, control over reproductive rights and health.
- Mental Abuse- threats, dictating what a woman can and cannot do, verbally abusing, humiliating the woman or her parents, not allowing the woman to leave the house or visit her natal home.
- Sexual Abuse- rape, unwanted touching, forcing sexual acts, refusal to practice safe sex.
- Economic or Property abuse- stealing or destroying personal belongings, demanding money, withholding basic needs such as food and clothing, not allowing the woman to work.
Legal Rights Of Domestic Violence Victims
- Protection Orders:- The magistrate can pass orders to stop the offender from aiding or committing violence within and outside the home, and pass a protection order in favor of the aggrieved person.
- Residence Orders:- The woman cant be evicted from the shared household or the respondent may have to provide a similar alternate accommodation.
- Monetary Relief And Maintenance:- The woman is entitled to monetary relief and maintenance including loss of earnings, medical expenses, damage to property, the maintenance for her children, etc. Such a payment can be a lump sum or monthly payment.
- Custody Orders:- The court can grant a woman temporary custody of her children.
- Compensation Orders:- In addition to other reliefs granted under this act, a woman on appeal can claim damages for mental torture and physical injuries.
- Interim order/ex parte orders:- The court can pass an interim order to prevent violence before the final order. In the absence of the respondent to the dispute, ex parte orders can be passed.
- Free Legal Service:- Women have the right to free legal services under the Legal Services Authorities Act, 1987 for proceedings under this act as well.
- Free Copies Of The Orders:- The aggrieved person will be given a copy of the orders of the court free of cost.
- Counseling:- The magistrate may direct the respondent or the aggrieved person, either simply or jointly to undergo counseling.
- InCamera Proceedings:- If the aggrieved woman so desires, the proceedings under the act may be held in-camera.
Where to file the case concerning domestic violence? :- The aggrieved woman or someone on behalf of her can file a Direct Information Report (DIR) with:-
- Protection Officer:- According to section 4, any person who has reason to believe that an act of domestic violence has been, or is being, or is likely to be committed, may give information about it to the concerned Protection Officer. The Protection Officer registers the DIR, presents it before the Magistrate, and ensures that the orders passed by the court are enforced.
- Service Provider:- Service Provider is a voluntary organization or a company registered with the state government with the objective of protecting the rights and interests of women. Service Providers assist in recording the incident of domestic violence with the Protection Officer or the Magistrate and provide the victim with legal aid, medical care counseling, or any other support.
- The Police:- The victim can file a criminal complaint under section 498A of the IPC with the police. The police will record a DIR under the PWDVA also and forward the same to the Magistrate for redressal of the grievance.
- The Magistrate:- An aggrieved person or a Protection Officer or any other person on behalf of the aggrieved person may present an application to the Magistrate seeking one or more reliefs under this act, provided that before passing any order on such application, the Magistrate shall take into consideration any domestic violence incident report received by him from the Protection Officer or the service provider.
Important Cases registered under DVPA 2005:-
Till now hundreds of cases have been registered under the Domestic Violence Prevention Act 2005(DVPA) throughout India. Here we are discussing the initial cases which have the greater important significance from the implementation point of view.
- Lalita Toppo Versus The State of Jharkhand.:-The appellant Lalita Toppo claimed maintenance under the provisions of the Protection of Women from Domestic Violence Act, 2011 despite the fact that she was not a legally wedded wife and thus was not eligible to claim maintenance under Section 125 of the Code of Criminal Procedure, 1973.
Held that the maintenance can be claimed under Domestic Violence Act, 2005 even if the claimant is not a legally wedded wife. Such relief cannot be allowed under section 125 of Cr.P.C.
The bench expanded the definition of the term domestic violence contained in Section 3(a) of the DVC Act, 2015 to include economic abuse as domestic violence.
Further, the court held that the estranged wife or live-in-partner would be entitled to extra relief under the provisions in Section 3(a) of the DVC Act, 2015 than what is provided under Section 125 of the Cr. P.C. i.e. to a shared household also.
- Santosh Bakshi v. State of Punjab and others, AIR 2014 SC 2966:- If the complaint of domestic violence made by women against a member of the family, the police without proper verification and investigation cannot submit a report that no case is made out. Investigating agency is required to make proper inquiries not only from the members of the family but also from neighbors, friends, and others. After such an inquiry, the investigating agency may form a definite opinion and file a report. It is for the Court to decide finally whether to take cognizance of the offense under any provisions of the D.V. Act.
- Anil v. Sudesh, 2014 Cri. L.J. 2015. (Punjab & Haryana High Court):- In the said case, the petitioner contended that the respondent was residing separately in either parental home since 1/1/1999 and D.V. Act came into force w.e.f. on 26/10/2006. He contended that Act is not retrospective, hence respondent is not entitled to any relief under the Act. It is held that petitioner seeking relief prospectively and not retrospectively, hence application by her is maintainable.
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