DOMESTIC VIOLENCE IN INDIA

Authored by Saksham Agarwal First year law student from Symbiosis Law School Pune

Introduction

All across the world, especially in the Indian sub-continent, the oppressive patriarchal society has educated a woman to be culturally silent about her sufferings and agony. The society is experiencing an overall progress in economy and polity, but the discrimination against women does not seem to end. The most painful aspect of this is that they are subject to harassment at the place which is supposed to be the safest for them, or anyone else in that regard. A woman devotes her life to her home, she builds it, nurtures it and makes it a liveable place and it is ironic that this very home is where she experiences violence and cruelty.

Domestic Violence is a heinous crime where one adult in a domestic relationship tries to control the other by applying his power over them. It is one of the most common but least reported crimes in India since a woman does not wish to expose the reality of her household to the outside world, and chooses to suffer in silence. A woman tries to protect her family, even if it is the same family that hurts and agonizes her.

United Nations Humans Rights Office defines violence against women as “Any act of gender-based violence that results in, or is likely to result in, physical, sexual or psychological harm or suffering to women, including threats of such acts, coercion or arbitrary deprivation of liberty, whether occurring in public or private life.” Domestic violence is not just physical abuse, but also sexual abuse, emotional abuse, threats or even economic deprivation. Mental or emotional abuse commonly include humiliating the victim publically, cutting off her contact from the outside world and controlling all aspects of the victim’s life.

India did not have any legislation which dealt specifically with domestic violence until 1983, when IPC was amended to insert Section 498A[1]. Section 498A deals with ‘Matrimonial Cruelty’ on a woman. Later in 1986, IPC was amended again to add Section 304B[2]. The need for this amendment arose since Section 498A only dealt with cases of domestic violence where the victim was still alive, and in case of death of the victim as a result of matrimonial cruelty, there was no provision to seek justice. Section 304B dealt with the death of a married woman within 7 years of marriage where it was a case of matrimonial cruelty.

Section 498A of Indian Penal Code inserted by the IPC amendment 1983 was the first legislation which accepted domestic violence as a criminal offence. It recognised abuse of a woman in her matrimonial home by her husband or in-laws. The section reads “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.”

The offence has been classified as cognizable under Section 498A, which implies that the officer in charge does not require a warrant to make an arrest, and once arrested, the accused will not be granted bail. The legislation also contains a provision that apart from the victim herself, anyone in relation by blood, marriage or adoption can file a complaint on her behalf.

For commission of an offence under Section 498-A, the essentials which need to be present: (a) The woman must be married; (b) She must be subjected to cruelty or harassment; and (c) Such cruelty or harassment must have been shown either by husband of the woman or by the relative of her husband.

In the case of U. Suvetha v. State by Inspector of Police & Anr[3], it has been held ‘relative of husband’ does not include husband’s friends or girlfriend, and is confined only to blood relatives.

In the case of Unnikrishnan v. State of Kerala[4], that the scope of 498A did not extend to women in live in relationships.

The Protection of Woman from Domestic Violence Act, 2005[5] was enacted to provide more effective protection to women against cruelty faced by them at home. DV act provides a remedy in civil law while 498A labels it as a criminal offense. Any woman in a domestic relationship and has been a victim of domestic violence in the said relationship can seek remedy under this legislation. According to Section 2(f) of Domestic Violence Act, ‘Domestic Relationship’ means not only a couple living in a marriage, but also live in relationships, legally invalid marriages and bigamous relationships contrary to Section 498A which recognised domestic violence only in marriages. This was upheld by the Supreme Court of India in the case of Indra Sarma v. V.K.V Sarma[6].

Section 3 of Domestic Violence Act provides a definition for domestic violence which includes all the types of cruelty which could take place in a household against a woman including emotional violence, sexual violence, physical violence and financial violence.

Section 8 of the Domestic Violence Act contains the provision for a protection officer appointed by the State Government. The job of the protection officer is to provide the victim with all the assistance she may require including medical and legal aid, shelter and counselling; and he may also act as a facilitator between the victim and the court.

Section 10 offers the assistance of service providers which provide shelter, medical treatment and other community to the victim. In case the woman requires any of these services, she can approach a registered service provider. An aggrieved woman can also file a complaint at a service provider, police station, protection officer or directly to a magistrate.

Section 18 to Section 23 cover the reliefs available to a victim under the Domestic Violence Act after a magistrate hears the case and is convinced that the victim has gone through domestic violence or is likely to go through it. The remedies are:

  1. Protective Orders
  2. Residence Order
  3. Monetary Relief
  4. Custody Order
  5. Compensation Orders

The Protection of Woman from Domestic Violence Act opens up an exhaustive list of remedies for the victims of Domestic Violence, since before its enactment the only remedy available was in criminal law, but now the victims can get monetary relief to support themselves, and do not stand at a chance to losing their place of residence. There still is a long way forward, remedies for men who might face violence or cruelty at home have not been provided and society could use a stricter law, which provides for punishments equivalent to the serious crime of domestic violence.


[1] Indian Penal Code, 1860, § 498 A

[2] Indian Penal Code, 1860, § 304 B

[3] U. Suvetha v. State by Inspector of Police & Anr, (2009) 6 SCC 757.

[4] Unnikrishnan v. Stateof Kerala, 2017 SCC OnLine Ker 12064.

[5] Protection of Women from Domestic Violence Act,2005, No. 43, Acts of Parliament, 2005 (India)

[6] Indra Sarma v.V.K.VSarma, (2013) 15 SCC 755.

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