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Home not a safe place anymore- Legal Remedies for Domestic Violence

Tia is 35 years old, a mother of two children working for a private organization. Tia has been married to her husband for 8 years. In the first two years of marriage Tia had a cordial relationship with her husband. As time passed Tia’s husband became an alcoholic. The only thing he would do now was abuse Tia physically.

She was scared to go home after work, thinking about the hurt she would have to face after going home. Tia had no courage to fight back, scared of the society in which she lived. She hoped and prayed that this would one day stop and this would not happen the next day. Days went by but the abuse only increased. The fear of protecting her children and the judgment of the society stopped her from taking any action against her husband.

Culture plays an important role in domestic violence in India. Generally, women are considered to be submissive and men are considered dominative. Marriage is considered sacred union between two families rather than two individuals. There is more pressure on women to be in a certain way, which puts a constraint on her life. Where a woman is suppressed by the male dominant society in the name of marriage then immerges, the grave torture of domestic violence.

Domestic violence can be described as one person exploits his power to suppress another in a relationship by physical, sexual, psychological abuses. Even today discrimination against women is prevalent at all levels therefore, it was essential for legislations to be laid down which elaborate the rights of women. These legislations are significant as women are guaranteed equal rights. For instance, women are entitled to inherit property on the equal bases; there shall be free consent between both the parties to marriage etc. It is the duty of the legislation to repeal any practice of custom that indulges in unfair practices towards women.

How many women in India report domestic violence cases against their abusers?

The number of domestic violence cases increased sharply from 2960 in 2019 to 5297 in 2020 according to National commission for women [1]. These are the complaints that are received by the aggrieved person. It is disheartening to know that there are many more like Tia who are afraid to report the matters of domestic violence. It is said that 86% of women did not report the matter of domestic violence during the pandemic [2]. The national safety measure to prevent covid-19 was telling people that HOME is there safe place, unfortunately for some women who are aggrieved by domestic violence HOME is not there safe place.

The factors associated with domestic violence among women in India, include the inability to perform the household duties, inability to provide male child, insufficient dowry etc. The frequency of increased cases of domestic violence has elevated the concern of Indian women. Education of women is also a factor associated with domestic violence, where women are illiterate and unaware of the rights which they possess under the law are the victims of domestic violence. There are possibilities where women do not report the cases of domestic violence due to embarrassment and accept the suffering. The deep rooted cause of domestic violence is poverty and gender inequalities.

What constitutes Domestic Violence?

Domestic Violence is an act which harms the life, limb, health and safety of the victim by causing physical, emotional, sexual or economic abuse. It is coercive control that one uses over the other person by harassing the victim using threats, cause economic deprivation, harm physically and also abuse sexually. These are ways where the abuser can injure the victim in not one but plenty of methods. For instance, where the victim has been starved by her husband for a period of three days, the act constitutes domestic violence.

The Protection of Women from Domestic Violence Act, 2005

Violence against women can be sexual, emotional, physical or economical as per the definition given in the Protection of Women from Domestic Violence Act, 2005. The Act extends its protection to all the women in a domestic relationship. The aggrieved person can be one living in same household related by marriage, adoption or living as a family member in the joint family. In D.Velusamy vs D.Patchaiammal[3] the court said that domestic relationship in the Act includes not only relationship of marriage but also relationships in nature of marriage but has failed to explain nature of relationship. As the Parliament has drawn a difference between relationship of marriage and relationship in nature of marriage therefore in either case the protection is entitled to both under the Act. The newly found live in relationship has also been included in the ambit of the Act.

In Reshma Begum W/O. Gajanfar Kazi vs The State Of Maharashtra And Anr[4] it was held that to interpret relationship in nature of marriage:
  1. The couple must hold themselves out to society as being akin to spouses
  2. They must be of legal age to marry
  3. Qualified to enter into a legal marriage, including being unmarried
  4. They must have voluntarily cohabited and held themselves out

To the world as akin to spouse for a significant period of time. It is abundantly clear all live in relationships are covered under section 2(f) of the Act. In order to constitute such relationship a possibility of marriage should exists.

According to sec 2(a) of the Act “aggrieved 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 [5]. An aggrieved person subjected to domestic violence can approach the protection officer.

The protection officer will provide the victim safe shelter and medical care. The protection officer is appointed by state government in each state. The protection officer assists the magistrate to discharge his functions under the Act. The service provider ensures that the victim is provided shelter if required. The Magistrate has the power to even provide counselling to the disputed parties separately or jointly with the service provider having the qualification to provide counselling.

How does the court provide assistance to women battling domestic violence?

We have seen many women who are battling domestic violence. Providing assistance to women affected by domestic violence is possible if they approach the court of law for justice. It is important for women to be aware that justice can be served only if they come out and ask for assistance from court. As many are afraid to approach the court, such women shall be encouraged to come out and stand for their right.

Awareness plays a major role in making women stronger to stand up for their own well being. The power vested in court by the Act to protect women is by issuing appropriate orders like protection order, residence order, monetary reliefs, custody order or compensation order. The protection order will protect the victim from the abuser, as it will provide appropriate conditions like preventing the abuser from communicating with the victim in any possible way. The residence order will protect the victim to stay in the place where she feels safe or evict the abuser from the place where the victim is residing.

In Sabita Mark Burges vs Mark Lionel Burges [6] the Bombay High Court stated that where the man is the owner of the house and has participated in violent act with the victim, the court can direct the man to remove himself from the shared household to secure the wife and children from further violence. The monetary relief will give the victim economic stability as the court may direct the abuser to provide compensation for the loss of earrings and the expenses the victim has incurred like medical care etc.

The custody order is to protect the child, this can be given to the person making the application and where the court is satisfied with the plea raised by the applicant is in relation to the wellbeing of the child. The court may after proper assimilation of situation provide the custody to such applicant and may impose condition of providing facility of meeting the child with the responded.

In Krishna Bhatacharjee v/s Sarathi Choudhury & Another [7] the apex court explained the duty of the court in dealing with complaints under the Act. It is the duty of the court to scrutinize the facts and to see from both sides whether plea raised by the responded is to nullify the grievance of the aggrieved person or is it really legally right.

The court of law has the obligation to see that the aggrieved person is not faced with the situation of non-adjudication under the Act. It is beneficial as well as assertively affirmative enactment for the realization of the constitutional rights of women and to ensure that they do not become victims of any kind of domestic violence.

Limitation of the Act

The Act has been drafted with the sole purpose of protecting women from violence but the main backdrop is it does not give a permanent remedy to women suffering from domestic violence, it provides interim relief which is temporary. For example, women are given the right to have the shared household but this would not protect her from domestic violence. The Act specifies that the abuser should be prevented from contacting the victim and also gives the victim the right of shared household.

These rights are only temporary which do not protect the victim from whole reason why the Act was drafted i.e. prevention of domestic violence. The Act was potentially drafted to protect women from violence which partly failed also due to the lack of awareness in the public. Lack of awareness is the main cause why women are suffering.

Though the Act specifies that the government should take initiative to spread awareness about the Act through print media or any other form, the women belonging to areas without the access of such information are still in abeyance. The government is responsible for the training of protection officers and magistrate judges with regard to implementation of the Act if the said officers are not trained with proper information it will lead to failure of the Act.

Protection under IPC

In India 20 women die every day as a result of harassment for dowry either murdered or compelled to commit suicide [8]. Domestic violence under IPC is recognized under sec 498-A. It is applicable when a women is treated with cruelty by her husband or relatives of her husband in demand for dowry, is punishable with 3 years of imprisonment and fine. Here, cruelty of such nature which will drive the women to commit suicide or the women has been subjected to harassment by her husband or relatives of husband.

The other provision that recognizes violence against women is section 304-B where the women dies within 7 years of the marriage under the circumstances of bodily burns or any other injury caused by harassment of her husband or relatives of husband. Such a culprit is punished with imprisonment not less than 7 years and may extend to imprisonment for life. These two sections have been introduced to protect women and also to provide stringent punishment to the offenders of such heinous crime.

In Sunita Kumari Kashyap vs State Of Bihar And Anr on 11 April, 2011[9] in view of the fact that the wife was treated with cruelty in Ranchi and in consequence of non fulfilment of demand of dowry was sent to Gaya by her husband i.e. her parental home. The question of jurisdiction arises as the ill treatment of the wife has taken place at Ranchi and then she was sent to her parental home under the threat of non fulfilment of dowry demand. It was asserted the offence was continuing which was committed in more than one local area therefore both the courts had the jurisdiction to decide the matter.

The Dowry Prohibition Act, 1961

The tradition of dowry has also played a huge part in the domestic violence in order to suppress women and acquire valuable security from her parents. Dowry is an evil practice which has sabotaged women to give what the man wants in the name of gifts or in the name to support the living standards of the parties to marriage. This practice has caused many women trauma to satisfy the needs of the husband and the relatives of the husband. A women not giving dowry as per the standards of the husband has only made her life miserable by her husband and relatives of husband.

To avoid the practice of dowry stringent laws has been bought in force. It is made clear by the amendment to the Act (1984 and 1986) introduced clauses for the penalties imposed on taking or giving and also banning the advertisement of dowry. The Act states that where the presents are given without the demand made by the bride and bridegroom do not constitute to dowry.

The Act clearly specifies that any property or valuable security given by one party to marriage to the other party at or before or after the marriage will be punishable. The penalty is imprisonment not less than 5 years and fine of 15,000 or the amount of value of such dowry whichever is more is prescribed for demanding dowry. This was introduced with a motive to stop the practice of dowry which has largely affected women in different ways. In Inder Raj Malik v. Sunita Malik[10] the Delhi High Court held that a person can be convicted under sec 4 of Dowry Prohibition Act as well as under 498-A of IPC and it will not amount to double jeopardy.

Is Divorce A Solution?

Yes, divorce can be considered by women who are suffering from domestic violence. In our society man is considered the source of income for the family. Divorce or separation is not considered reasonable option for women therefore, are pressured to reconcile with their abuser husband. A women’s identity is primarily associated with marriage and motherhood therefore is considered imperfect without a husband.

On taking divorce a women is always questioned on her decision. According to section 13 of Hindu Marriage Act, 1955 one of the grounds for divorce stated is cruelty by her husband. One also has the option of judicial separation under sec 10 of the Hindu Marriage Act, 1955 where the after passing the order the parties need not cohabit.

Conclusion
The rise in cases of domestic violence should be dealt with utmost care and compassion. It is important to understand that the women who have gone through the abuse are provided with best legal remedy which will ensure that no women in future is treated in such discriminatory manner. There shall be programs held where women are educated about their rights. These stringent provisions are to develop the society.

These legal remedies which are available are not used by most of the women. These remedies will only be used if voices are raised for violence against women. This discrimination can stop only when voices are raised and awareness is spread among women. In India due to violence against women had been a major drawback therefore legislations like the Protection of Women from Domestic Violence has played a crucial part to protect the women. It is sad that even after having such strong provision crime against women have increased in number.

We need to be informed with the crimes taking place and keep everyone aware of how one can deal with it legally. For the crimes increasing it is also necessary for the legislations to be drafted in such a manner that it leads to elimination of crimes against women. The abhorrent act of domestic violence cannot be curtailed until families, government and civil society organizations do not address the issue collectively.

References:
  1. https://timesofindia.indiatimes.com/india/complaints-of-domestic-violence-against-women-spiked-in-year-of-lockdown-ncw-data/articleshow/81687915.cms
  2. https://www.thehindu.com/data/data-domestic-violence-complaints-at-a-10-year-high-during-covid-19-lockdown/article31885001.ece
  3. https://indiankanoon.org/doc/1521881/
  4. https://indiankanoon.org/doc/186374043/
  5. https://indiankanoon.org/doc/959632/
  6. https://indiankanoon.org/doc/190038463/
  7. https://indiankanoon.org/doc/124775488/
  8. https://www.shethepeople.tv/top-stories/opinion/dowry-deaths-reality-in-india-but-until-when/
  9. https://indiankanoon.org/doc/1372844/
  10. https://indiankanoon.org/doc/322263/

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