“I object to violence because when it appears to do good, the good is only temporary. The evil it does is permanent.” – Mahatma Gandhi
Millions of people may immediately relate to this quote. Domestic Violence has no universally accepted definition but it cuts across all religions, castes, ethnic groups, backgrounds and countries and is a global phenomenon. Anyone of any age group from children to old people could be victims of domestic violence. The son, wife, husband, mother, father, sister, brother, girlfriend or any other relative could be abused. The legal, everyday definition may change in different parts of the world but in its most basic form, domestic violence could be said to be a behavior by a person, which is coercive in nature, towards any other family member, partner, ex-partner, children which is intended to dominate and gain power and control of the other party. It can be done against any sex, in any relation, marital or non-marital, Heterosexual and same-sex.
At International level, under the United Nations Model Legislation passed by the UN Commission on Human Rights in the year 1996, domestic violence is defined as-
‘All acts of gender-based physical, psychological and sexual abuse by a family member against women in the family, ranging from simple assaults to aggravated physical battery, kidnapping, threats, intimidation, coercion, stalking, humiliating, verbal abuse, forcible or unlawful entry, arson, destruction of property, sexual violence, marital rape, dowry or bride-price related violence, female genital mutilation, violence related to exploitation through prostitution, violence against household workers and attempts to commit such acts shall be termed as ‘domestic violence’.
Taking its essence from this definition, the legal definition of domestic violence used in India, mentioned in the Protection of Women from Domestic Violence Act (PWDVA), 2005, is –
Section 3- For the purposes of this Act, 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. Domestic Violence includes the abuse of the following types-
Psychological/Emotional abuse
This type of abuse is accompanied with any act of domestic violence and can lead to permanent damage, mental disorders, depression, death by suicide etc. This may include abuse in the form of continuous taunting, ignoring the emotions of the victim, privately of publicly insulting the victim, making derogatory comments, doing actions that embarrasses the victim, restraining the victim from meeting family and friends, blaming the victim for one’s own troubles, having affairs in front of the victim, questioning the character of the victim etc.
All these acts have long lasting effects on the victims as repetitive abuse and taunts plays with their mind and they start thinking that they are the source of problems. This makes them loose confidence and self esteem.
Physical abuse
Physical abuse is the most common type of domestic violence and it can be done easily by both the genders. Traditionally men are thought to be physically stronger, so in most of the cases, the victims of this type of violence are women. But physical abuse can be also done by women. This includes the intentional use of physical force against the other party. This may include pushing, shoving, slapping, biting, hitting, kicking, punching, chocking, throwing objects at the victim, physically restraining by either locking in a room or not letting the victim go anywhere, throwing out of cars, hurting with a weapon, denying medical aid when required, depriving the victim of the basic biological necessities like food, sleep, breaking bones, etc. In extreme cases, victims are also murdered.
Sexual abuse
Most cases of sexual abuse are against women as the social construct that men are stronger than women has led to women’s subjugation. In India, women are subjected more abuse because they are taught to never go against the wishes of a man and fulfill all the desires of their husbands without protest. Sexual abuse includes molestation, forced sex with the spouse or other persons, bondage or other types of sex, looking the victim as a sexual object and asking the victim to do certain acts that the victims finds humiliating, uses other foreign objects during sex, using abusive words like whore, slut for the victim, not respecting the sexual desires, willingness of the victim, asks the victim to undress, stay without clothes in home etc.
Financial abuse
In this, the abuser makes the victim loose control over all the finances he/she may have. Traditionally, and specifically in India, men are seen as the breadwinners and earn money and the women stay back at home. This made the women entirely dependent on men for their finances and gave the men a position to dominate. Since money is needed by everyone to survive, the victim tends to be more desperate and accepts more intense kinds of violence from the abuser to get some money.
This includes restricting the victims accounts, accounting for each and every cent the victim spends, preventing from working, stealing victim’s salary etc.
Cultural based abuses
Marriages in which the people are married forcibly owing to any promises between the parents of the victim or any social compulsion. Honour killings come under this abuse.
Domestic Violence is of two types – it is in both the Public and Private spheres. Rapes of women in jails by the police, harassment at workplaces comes under the public sphere of domestic violence and these cases are many times reported. But the private sphere cases are the main for which there was a need for a law. A husband wife relation comes under the private sphere and the cases of domestic violence happening there were unaccounted for and the bulk of the cases of domestic violence happen in homes. CEDAW (Convention of Elimination of all forms of Discrimination Against Women) guarantees non discrimination and makes no distinction between the public and private sphere. In theory therefore, there is an obligation on the State to prevent all forms of violence, weather sanctioned socially or legally, in the public or in the private sphere. CEDAW was perhaps the first time said that women rights were given due recognition and it asked the states to enact laws to ensure the rights of women.
This recommendation came after countries realized that the scope and magnitude of domestic violence is very wide. It can be used in any sort of relation on anyone. Since most of the cases of domestic violence are unreported, the exact magnitude of problem cannot be known but the available data in an indicator of the expected magnitude of this universal problem.
According to United Nation Population Fund Report, around two-third of married Indian women are victims of domestic violence and as many as 70 per cent of married women in India between the age of 15 and 49 are victims of beating, rape or forced sex. In India, more than 55 percent of the women suffer from domestic violence, especially in the states of Bihar, U.P., M.P. and other northern states. There are many cultural, economic, legal, political and historical causes for domestic violence.
Direct costs: Value of goods and services used in treating or preventing violence.
- Medical
- Police
- Criminal Justice system
- Housing
- Social Services
- Non-monetary costs: Pain and suffering
- Increase morbidity
- Increased mortality via homicide suicide
- Abuse of alcohol and drugs
- Depressive disorders
- Economic multiplier effects: macro-economic, labour market, inter-generational productivity impacts.
- Decreased labour market participation
- Reduced productivity on the job
- Lower earnings
- Increased absenteeism
- Intergenerational productivity impacts via grade repetition and lower education attainment of children
- Decreased investment and saving
- Capital flight
- Social multiplier effects: Impact on interpersonal relations and quality of life
- Intergenerational transmission of violence
- Reduced quality of life
- Erosion of social capital
- Reduced participation in democratic process
The table above shows the socio-economic cost of violence. The table depicts that the policy- makers should be more aware about the importance and effectiveness of prevention.
The Status of women in India
In the marriage hymn RV 10.85.26, the wife “should address the assembly as a commander.” A Rig Veda hymn says “I am the banner and the head, a mighty arbitress am I: I am victorious, and my Lord shall be submissive to my will.” Rig Veda, Book 10. HYMN CLIX. Saci Paulomi.
This is probably the earliest reference to the position of women in the Hindu society. This shows that women were regarded superior to men in pre historic times. Women used to have equal participation in the decision making process at home and outside home. They used to enjoy the rights of property and had equal status to men in every respect. Women like Sita were given respect like no other literature of any country has given to women. Hence, in the pre historic times, women were equal, if not higher than men in social status. With the passing of time, the status of women in the society started diminishing. Even the lawmaker Manu said that women are not worthy of freedom in the medieval times. After that, evolution of certain phenomenon like sati etc. led to the oppression of women and the men grew more dominating. It led to the social construct that women are biologically, socially and politically weaker than men which led to increased cases of domestic violence against women in India. Property also played an important role in male dominating the society. Having no right over the property of the father because of the patriarchal society, women didn’t have any means other than to depend on their husbands for their existence.
The lack of education and awareness about domestic violence in the society along with the mindset of the society and a police force not willing to interfere in the private lives of families led to an increase in such instances.
Causes of Domestic Violence
The women are told to not complain about any difficulty they face by their own families and any woman who gathers the courage to complain is looked down upon by the members of her community. In most of the cases the victim is asked to tolerate all the abuse as a part of her karma.
Religion and Culture is also a major cause of domestic violence. The psychology plays an important role and the major psychology is developed during the infancy stage of any human. The upbringing of a kid is very crucial. Some religions, even like Christianity preach violence. There is mention in the Holy Bible, in the book of proverbs, about spanking. [4] Violence seen in childhood plays with the mind of the child and can lead to behavior problems afterwards. Boys are encouraged to play aggressive games, go bold activities like playing with toy guns and women are usually encouraged to do the homely and lame activities like playing with dolls, sewing etc. This leads to boys associating themselves with a tough image and girls with a sensitive one. Customs of marriage like giving dowry are one of the most important causes of domestic violence incidents in India. Most cases in India are due to the in-laws demanding dowry or more dowry after marriage and harassing the victim for that. Looking the household as male-dominated and male headed is also a cause.
Economic causes include women having no rights over property, as discussed above, and fewer opportunities to work. Education plays an important role here as most people in rural areas do not send girl child to school, asking them to stay at home and do the household chores. The mindset that a girl child has to be married so money on education is money wasted has led to women not getting educated, hence having very little chance of standing on their own feet, and getting abused because of their “uselessness”. Other cause of domestic violence could be the legal causes. In this, the attitude of the police and judiciary towards women and their issues plays an important role. In India, there is no discrimination against women as far as the written law is concerned but the attitude of the judiciary, which is male dominated, has not been in-line with the constitution.The Delhi High Court infamously stated in Harvinder Kaur vs Harmander Singh (1983) thus: “Introduction of constitutional law in the home is the most inappropriate. It is like introducing a bull in a china shop…. In the privacy of the home and the married life neither Article 21 nor Article 14 has any place.” [5] This attitude was a great boost to the abusers and they went on with the abuse without any fear from the law. Although the constitution has given men and women equal status but legal literacy is very low amongst the women of India, so they are less aware of their rights, duties and this causes them to bear the abuse in silence. Access to courts for women could be also the cause that women do not come forward with their complaints.
Politics plays an important part in domestic violence also. In India, until now, women were under-represented in politics, government jobs, and other responsible positions. Women were traditionally thought to be weak and unsuited for the high responsibility jobs. Hence women who tried to show courage and take these jobs used to be pulled back by the society. Less representation of women in politics was also a major cause for the domestic violence industry to grow in India because there was limited organization of women as a political force and the voice could not be raised for the requirement of new laws. Pornographic videos, magazines and websites are learning grounds which teach that women are unworthy of respect and valuable only as sex objects for men. In India, for example, “sayamwara” shows in which a man chooses from many women, his bride, depict women as a commodity.
Buildup to the Domestic Violence Act and the Provisions before it
Domestic Violence, like at any other time, was prevalent during the British time also. This accompanied by customs like sati, purdah and jauhar led to women being oppressed a lot and having nowhere to go and complain. Although people like Mahatma Gandhi, Raja Rammohun Roy (who helped abolish sati) tried a lot to uplift women, but the domestic violence was still unchanged. But this period could be said to be a building step for the movements after independence. Women leaders like Sarojini Naidu, Rani Laxmi Bai, Annie Beasant, and Vijaylaxmi Pandit gave the women of the country courage to fight against their oppression.
After the independence in 1947, there was a change in the status of women with the enactment of the Constitution. The Constitution provided for equality for men and women in Articles 14 and 15. We have what very few Constitutions of the world have, the power bestowed on our governments by the Constitution in Article 15(3) to make “special provisions for women and children” adding a new dimension to our understanding of equality . After that step after step, the women’s movements gained force. In the 1970’s, the rape of a sixteen year old girl by two policemen and their subsequent acquittal by the Supreme Court on the grounds that the victim did not raise any alarm and had no visible marks of injury led to widespread criticism and the government had to ultimately amend the Evidence Act, the Indian Penal Code and Criminal Procedure Code and had to introduce custodial rape in the IPC. After that a series of new changes happened like the Dowry Prohibition Act, 1961. The rape law was amended in 1983. Cruelty against women was made a crime in 1984. In 1986, the offence of dowry death was introduced.
The other two very important provisions that were introduced in 1983 and 1986 were the Section 498A and 304B in the Indian Penal Code. The provisions, their merits and demerits are discussed below-
Section 498A
“Section 498-A – 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 wilful 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 is account or failure by her or any person related to her to meet such demand.
As the criminal aspect of Domestic Violence is concerned, this section is the only criminal law available. This section is non- bailable, non- compoundable and cognizable. It could be used only by the wives, daughter in-laws or her relatives. The uniqueness of this provision was that it recognized mental injury as well. This provision was put in place to check the growing dowry deaths in India. But what happened was very different. This law became a tool for the women to lodge false cases against their husbands and led to its widespread misuse. Instead of decreasing, the dowry deaths increased. As Justice F.I. Rebello of the Bombay High Court observed in a judgment -“We have to take judicial notice that crime against women instead of decreasing in on the increase. We find that cases of bride burning are on an increase.” Even The Malimath Committee Report on reforms in criminal justice system also noted that there was “General complaint” that Section 498A was being misused and suggested some amendments.
What went wrong with this provision was that while judges were willing to convict husbands and mothers in law after the woman had dies in the matrimonial home, they were not so willing to convict for “cruelty” while she was alive. Dead women thus got more consideration in the law than did those who survived the violence. Also for women, this section became a boon as they could now get money from the in-laws who could easily go in jail after her complaint. Other problematic aspect of this provision was the definition of “cruelty” itself. Cruelty was defined to mean any willful conduct which could have driven the woman to commit suicide or caused grave injury to her or posed a danger to her life, limb or health (either mental or physical). The definition was worded in such vague terms that it was difficult to bring issues of sexual violence, economic violence or even threats of violence within the ambit of the section.
Instead of being introduced after many delays, this provision could not solve the problem as a whole for the women, it may have created some for the nation.
Section 304B
Section 304 B- Dowry death- (1) where the death of a women is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is 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 for dowry, such death shall be called “dowry death”, and such husband or relative shall be deemed to have caused her death.”
Explanation:-For the purpose of this sub-section, “dowry” shall have the same meaning as in section 2 of the Dowry Prohibition Act, 1961 (28 of 1961).
(2) Whoever commits dowry death shall be punished with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life.]
This section was a necessary law to punish the people involved in this crime. This much needed law to give justice to the girls who were killed by greedy in-laws punished the in-laws if the girl was killed within 7 years of the marriage, if she died under suspicious circumstances, burns etc.
Although bride burning is common in India, even if any girl dies after marriage due to any other reasons, the in-laws are immediately booked and arrested under 498A and 304B. As the opposers of these sections say, there may be some “legal terrorism” against the innocent in-laws of a dead bride. As Justice Shiv Narayan Dhingra of the Delhi High Court very recently observed-“This case is a reflection of mentality which is now taking grip of parents of a deceased wife in the criminal cases. Whenever a woman dies an unnatural death within seven years of her marriage at in-laws’ house, whatever be the cause of death, the in-laws must be hanged. This case also shows how truth is losing significance because of the ego of the litigants to see that in-laws should be hanged.” These sections, though very firm steps against the domestic violence industry, faced problems such as mis-interpretation by the judges and alleged misuse by the women.
As these were criminal laws to prevent crime, the immediate needs of women were overlooked and there was an immediate need for a civil law. “There was no law in place enabling judges to give protection orders and injunctions restraining violence against women or to give any monetary relief in cases where women go to court complaining against violence. All remedial measure were part and parcel of family law, or more particularly the law of divorce. Violence was not seen as a wrong, in and of itself, but as a fall-out of marriage and family life. There was no unambiguous policy of elimination of violence against women as a national goal, to be achieved through law”. All these considerations made it imperative to conceptualize a law on domestic violence that would be a combination of both civil and criminal law elements. A civil law that would, on the one hand, restrain the abuser from committing violence, and on the other, provide for the other needs of the woman faced with violence. At the same time, punitive provisions would ensure the enforcement of the orders of the courts .
The Protection of Women from Domestic Violence Act, 2005
The bill was passed by the NDA government in 2002 in the Lok Sabha and The Protection of Women from Domestic Violence Act came into being on 13th September, 2005. This Act, with 37 Sections and 5 chapters, was lauded as an essential change in the kind of legal protection provided to women by the law. The act showcases that changing trends in the society are not left unnoticed by the government and recognizes the relationships ‘in the nature of marriage’. This was the much needed change in the Act because before this, there was no provision anywhere to check the out-of-marriage acts of domestic violence which formed a large part of the domestic violence industry. Safeguarding women’s right to safety in a relationship, be it in a married or share household. The provision relating to the Right to Residence (under Section 17) is one of the most important provisions of the act. Under Section 19, a magistrate can also direct the respondent to remove himself from the shared household, secure a same level of accommodation for the complainant, restrain the respondent or his relatives from entering certain portions of the house and can direct the respondent to not alienate or dispose off of the shared household.
The other important feature of the act is the provision for a Protection Officer. In India, women generally stay away from the police and the courts, owing to their own families not encouraging them to raise their voices against their in-laws. For the act to be successful, a Protection Officer is provided so as to aid the victim with legal procedures and support, including medical assistance and counseling. The aggrieved person can complain to the Protection Officer in event of further incidences after which the PO prepares a Domestic Incident Report on the basis of which necessary action is taken. Protection Orders are granted under Section 18 of the Act, which can direct the respondents from not committing any further acts of violence against the complainant or entering into to premises where the complainant resides or works.
Under the Act, domestic violence includes verbal, emotional, sexual, economic and physical abuse and compensation is provided for all kinds of violence. Custody of the children and ex-parte and interim orders can also be granted to the aggrieved person. Further, the respondent can be directed to give back the ‘Stri-dhan’ (Dowry) items of the complainant under Section 19 of the act, which has proved to be extremely relevant due to the still prevalent practice of giving dowry in India.
Shortcomings and Working
Although the Act was definitely a concrete step towards checking domestic violence, still even at the time of enactment, it seems like the aim is to rather preserve the family then to protect people against domestic violence. The Act does has no provisions regarding marital rape, which is a form of domestic violence and very predominant everywhere. Other issue is that amongst the allegations of misuse of the Act by women, no provision was made for the women to be held liable in case of misuse. The major debate that followed was over the constitutionality of the act as it was not the same for men and they argued that it went against Article 15 of Right to Equality on the Indian Constitution. Relating to this issue, In a July 4th, 2008 decision in Aruna Parmod Shah v. Union of India WP (Crl.), the Delhi High Court dismissed the victim’s mother-in-law’s contentions that the PWDVA was unconstitutional because it did not provide a remedy for men as well as women, and that holding relationships in the nature of marriage at par with marital relationships in Section 2(f) of the Act derogated the rights of legally-wedded wives. The Court held that the gender-specific nature of the PWDVA was a reasonable classification in view of the Act’s object and purpose, and thus it was constitutionally valid. The Court further held that “like treatment to both does not, in any manner, derogate from the sanctity of marriage since an assumption can fairly be drawn that a ‘live-in relationship’ is invariably initiated and perpetuated by the male.”11 The Madras High Court also upheld the constitutionality of the PWDVA in a March 4th, 2009 decision, Dennison Paulraj and Ors. V. Union of India and Ors. WP, expounding that the PWDVA was enacted as a special legislation for women consistent with Article 15(3) of the Indian Constitution.
The provision for shared household in the Act under Section 17 does not provide for substantive property rights over the property of her husband, it only gives a right to reside there. In the first year of the Act, it was seen that there was very less implementation of the Act with states like Haryana, Punjab and Rajasthan had not even appointed Protection Officers, who play a central role in the cases. Some states gave the charge to the present government officers, who were not trained and could not handle this additional burden effectively. It was found that there was complete lack of infrastructure required with this act.