Jun 10,2020 | 12 min read

Laws of Domestic Violence in India By Advocate Tushar Vashi

Author - Tushar Vashi

Introduction

In India, more than 30% of women have been subjected to domestic violence at some point in their lives, per the National Family Health Survey (NFHS) data. Yet, nearly 75% of those who reported being subjected to domestic violence did not seek help from anyone. For those who do, by confiding in close family members, the crime often gets brushed off as a private or family matter that doesn’t require outside, legal intervention1.

This response can trap women in abusive situations. Various studies have highlighted the effects of being in an abusive relationship — women who survive intimate partner violence are not only 10% to 25% more likely to be broke, but survivors are also likely to, “… carry the scars from [domestic violence] for a long time, and those scars can create barriers to forming new relationships.”2

Domestic Violence at home is, unfortunately, a reality of Indian society, a cliché. In the Indian Patriarchal setup, it turned into a satisfactory practice to mishandle women. There might be numerous explanations behind the event of domestic violence, hence India has various legislations for the same There are three laws in place in India that deal directly with domestic violence: 

  1. The section 498A of the Indian Penal Code
  2. The Dowry Prohibition Act, 1961
  3. The Protection of Women from Domestic Violence Act, 2005

The aim of this article is to briefly explain the 

Section 498A of the Indian Penal Code

Indian Penal Code, 1860 is the most important substantive criminal law to impose certain amendments in it with respect to cruelties against women fundamentally married women. Section 498 A deals with certain things in terms cruelty which read as:

  1. Any wilful conduct which is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health of the woman; or
  2. Harassment of the women with a view of coercing her or any person related to her to meet any unlawful demand for any property or any valuable security or is on account of her failure by her or any person related to her to meet any demands3

Meaning of Section 

According this section the married women a can file a case against her husband or her in laws when she suffers cruelty at their hands. Hence it is important to understand the meaning if cruelty for the purposes of this section.

In the case of ‘Inder Raj Malik vs. Sunita Malik4’ , it was held that the word ‘cruelty’ is defined in the explanation which inter alia says that harassment of a woman with a view to coerce her or any related persons to meet any unlawful demand for any property or any valuable security is cruelty. Kinds of cruelty covered under this section includes following:

  1. Cruelty by vexatious litigation
  2. Cruelty by deprivation and wasteful habits
  3. Cruelty by persistent demand 
  4. Cruelty by extra-marital relations
  5. Harassment for non-dowry demand
  6. Cruelty by non-acceptance of baby girl
  7. Cruelty by false attacks on chastity
  8. Taking away children

The cruelty under this section would include such a grave act of cruelty which puts the women under such danger, and it being such grave that might lead to committing suicide. It also important to note that it was held in ‘Kaliyaperumal vs. State of Tamil Nadu5 that cruelty is a common essential in offences under both the sections 304B and 498A of IPC. Discussion of section 304 shall be made in the further section of the notes. Also S.498A IPC does not only deal with dowry deaths but also any wilful conduct on part of the husband which causes harm to the wife’s ‘ life, limb or health (whether mental or physical).’To prove that cruelty was caused under Explanation a) of S.498A IPC it is not important to show or put forth that the woman was beaten up- abusing her verbally, denying her conjugal rights or even not speaking to her properly6 would fall into the ambit of mental cruelty. Showing any mercy to abusers or giving them the ‘benefit of doubt’ when some proof to torture at their hands is present is completely wrong.

The Dowry Prohibition Act, 1961

The provision of the Dowry prohibition Act mainly deals with issues relating to dowry and its related offences in general. Dowry means transfer of parental property at the time of marriage of their daughter. It is a system of providing a certain amount of financial assistance to the groom’s family either in the form of money, property, gold etc. 

The Social evil of Dowry was spread to large extent so for abolishing the act of providing and accepting dowry, which lead to various financial crises to many families in India, Government formulated Dowry Prohibition Act on the year 1961 so that there will be an eye of law in regulating such actions involving delivery and acceptance dowry. The Act provides various provisions relating to the term ‘dowry’ as well as provisions relating to the punishment for the offence of dowry and the concerned officers who are entitled with the authority to look into such matters. The Act also provides certain powers to make rules and regulations regarding giving and accepting dowry. But the fact is that almost all the marriages are taking place in certain assurance given by the family of both the spouses mainly the bride7.

The original content of the Dowry Prohibition Act was broadly decided to be ineffectual in controlling the activity of dowry. In addition, different types of violence against women kept on being connected to an inability to fulfil dowry needs. Therefore, the enactment experienced subsequent amendment. In 1984, for example, it was changed to specify that presents given to a bride or a groom at the time of a wedding are allowed. The law required, however, that a list be maintained describing each gift, its value, the identity of the person giving it, and the person’s relation to either party to the marriage. The act and relevant sections of the Indian Penal Code were further amended to protect female victims of dowry-related violence. Another layer of legal protection was provided in 2005 under the Protection of Women from Domestic Violence Act8.

Amendments made to the first Dowry Prohibition Act likewise established least and most punishments for giving and accepting dowry and made a punishment for requesting dowry or publicizing offers of money or property regarding a marriage. The Indian Penal Code was likewise modified in 1983 established specific crimes of dowry-related cruelty, dowry death, and abetment of suicide. These enactments punished violence against women by their husbands or their relatives when proof of dowry demands or dowry harassment could be shown.

The Protection of Women from Domestic Violence Act, 2005

The Protection of Women from Domestic Violence Act (or the Domestic Violence Act) is a laudable piece of legislation that was enacted in 2005 to tackle this problem. The Act in theory goes a long way towards protection of women in the domestic setup.

The Protection of Women from Domestic Violence Act 2005 is a parliamentary act which was enacted to protect the women from domestic violence which came into force by 26 October 2006. This act provides for the first time definition of ‘domestic violence’ making the purview of violence broad by including not only the physical but also emotional, verbal, sexual and economic abuse. This is a civil law for protection orders and not meant to be applied criminally9.

The Domestic Violence Act is an act which provides for more effective protection of the rights of women guaranteed under the constitution who are victims of any sort of violence within the family and matters connected therewith or incidental thereto.

Definition of domestic violence is provided under section 3 of the act as “any act, omission or commission or conduct of the respondent shall constitute domestic violence in case it:

  1. 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
  2. harasses, harms, injures or endangers the aggrieved person 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
  3. 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
  4. otherwise injures or causes harm, whether physical or mental, to the aggrieved person.”

For the purpose of the explanation of the Act, ‘the Act’ also defines  “physical abuse”, “sexual abuse”, “verbal and emotional abuse” and “economic abuse”.

In a country like India wherein due to the patriarchal setup abusing women became an acceptable norm. The Protection of Women from Domestic Violence Act became consequently a commendable legislation. It contemplates and acknowledges wider varieties of violence towards women. Prior to this Act all different situations of domestic violence inside the family had to be dealt with under the offences that the respective acts of violence constituted below the IPC besides any regard to the gender of the victim. This posed a trouble where the victims befell to be youth or ladies who had been dependent on the assailant10.


Endnotes

1- https://thewire.in/women/domestic-violence-india-reporting
2-  https://theswaddle.com/women-economic-hardship-intimate-partner-violence/
3-  https://indiankanoon.org/doc/538436/
4-  1986 (92) CRLJ 1510
5-  2004 (9) SCC 157
6- Ramesh Dalaji Godad v State of Gujarat II (2004) DMC 124
7-  https://www.britannica.com/event/Dowry-Prohibition-Act
8-  https://blog.ipleaders.in/laws-domestic-violence-dowry-death-india/#_ftn1
9-  http://www.legalserviceindia.com/articles/dmt.htm
10-   https://blog.ipleaders.in/domestic-violence-shadow-pandemic/

Wibliography

https://www.thenewsminute.com/article/watch-these-are-laws-india-against-domestic-violence-97543
https://www.shethepeople.tv/law-and-her/domestic-violence-and-connected-laws-indian-women-should-know-of
https://theswaddle.com/know-your-rights-domestic-violence-laws-in-india/


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