Domestic violence against men: A silent law
Legal Methods
Anmol Giri 2015010 2nd semester
DAMODARAM SANJIVAYYA NATIONAL LAW UNIVERSITY VISAKHAPATNAM 1 Domestic violence against men: A silent law
Domestic violence against men: A silent law
Contents
1. 2. 3. 4. 5. 6. 7. 8. 9.
Introduction……………………………………………………………….……………………..…..3 Provisions related to domestic violence ……………………………..…………………………….4 Cases of domesticviolenceagainst women…………...……………...……………………………6 Cases of domestic violence against men ….................................................................................7 Comment on the cases ………………………………………………………………………………9 Recent amendment in sec 498a of IPC ………………..............................................................10 Reasons for the amendment………………………………………………………………………..12 Present condition of men…………………………………………………………………………...13
2 Domestic violence against men: A silent law
INTRODUCTION Leading the study of ‘violence against men’ is the first research to look at the entire series of violence against men: a silent law. Women as victim and men as perpetrators have been eyeballs for a long time but now overview of men as victim are most diverse type of case of violence has been publishing. The aim of this research is to open up a way and acquire some essential figures which indicate how men have been being subjected to domestic violence by analyzing men living in India. This study includes forms of violence physical, emotional, psychological and sexualized violence and categorized them separately according to whether they were experienced in adolescence, adult and married life. This is noted in cases where it was “manifest” either from the material or the cases. Country like Indian where image of men is fairly not good about the violence, where it is in office, public or in home (domestic violence). Where society is patriarchal and violence by men is very usual, men is considered as outrageous, out of bounds, one who like to do violence specially in home, that’s the reason the image of men in relation with domestic violence is very bad. So taking into the consideration government, NGOs, and other women welfare organization provides many facilities to support women and punish men. In this regard government had enacted many law and provisions. These provisions includes section 113A Indian evidence act, sections 498A and 304B Indian penal code, dowry provision act 1961 , domestic violence act 2005. The ultimate aim of Government to enacted these provisions is to punish men perpetrators and protected women victims but the question is that as men is really a perpetrators or they are victims. Recently in many cases Supreme Court found misuse of anti-domestic violence provisions by women and men are being threaten, if your wife/daughter in law who’s demands are not met can written false compliant of dowry harassment to nearby police station. Immediately one along with family is arrested without sufficient investigation and put behind the bars on a non-bail able terms even if the compliant is false and once image in society is destroyed. Once will suffer emotionally, psychologically and many other problems. Even one will not tell anyone because of male ego. What about the suffering of men, Is this violence is not against men, it is. And the laws which were enacted to protected women and punish men perpetrators stay remain silent there, as no law in India which deals with the provision of violence against men. And the laws which were made to punish men perpetrators are using against them, and made them suffer. This is repeatedly accepted by high courts ad supreme court in India that anti-women violence laws are mere blackmail attempts by wife to harass men. This paper examines the efficiency of law to protect men from violence.
3 Domestic violence against men: A silent law
Provisions related to domestic violence 1. Protection of Women from Domestic Violence Act 2005 The Protection of Women from Domestic Violence Act 20051 differs from the provision of the Penal Code - section 498A of the Indian Penal Code - in that it provides a broader definition of domestic violence. Domestic violence is defined by 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 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 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.” The Act goes on, through the section Explanation 1, to define "physical abuse”, “sexual abuse", "verbal and emotional abuse" and "economic abuse".
2. Section 498A. Of Indian penal Code2 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 is liable to fine. Explanation- For the purpose of this section, “cruelty” means1About domestic violence, available at http://wcd.nic.in/sites/default/files/wdvact.pdf last seen 24/10/15 2About IPC, available at http://menrightsindia.net/bare-acts/ipc-498a-bare-act last seen 25/10/15 4 Domestic violence against men: A silent law
(a) Anywilful 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. 3. The Dowry Prohibition Act, 19613 In this Act, “dowry” means any property or valuable security given or agreed to be given either directly or indirectly. (a) By one party to a marriage to the other party to the marriage, or (b) By the parent of either party to a marriage or by any other person,, to either party to the marriage or to any other person, at or before [or any time after the marriage] 2[in connection with the marriage of the said parties, but does not include] dower or maher in the case of persons to whom the Muslim Personal Law (Shariat) applies.
Explanation II.—the expression “valuable security” has the same meaning as in section 30 of the Indian Penal Code (45 of 1860).
4. Indian Penal Code, 18604 304B. Dowry Death – (1) Where the death of a woman 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 relatives shall be deemed to have caused her death. Explanation – For the purposes of this sub section, “dowry” shall have the same meaning as in section 2 of the Dowry Prohibition Act, 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. 3About dowry provision, available at http://ncw.nic.in/acts/THEDOWRYPROHIBITIONACT1961.pdf 4About dowry death available at http://ncw.nic.in/acts/THEINDIANPENALCODE1860.pdf last seen 29/10/15 5 Domestic violence against men: A silent law
6 Domestic violence against men: A silent law
Cases of domestic violence against men As there are number of cases of domestic violence, some of the cases are as follows: 1. DR.Narayan Ganesh Dastane VS. Suchetadastane5 Both the parties were from reputed families And well educated, Though the conditions made the husband to file a petition of Divorce in contrast to his wife on the ground of cruelty (NarayanDastane) husband’s allegations:The respondent used to portray the appealing party's mom as an animalistic lady; upon the arrival of "Paksha" (the day oil which oblations are offered to progenitors) she used to manhandle the predecessors of the litigant; She removed the 'Mangal-Sutra'; She beat the little girl Shubha while she was running a high temperature of 104'; One night she began acting as in the event that she seemed to be 'controlled'. She detached the Mangal-Sutra at the end of the day and said that she won't put it on once more; and She used to switch on the light at midnight and sit by the spouse's bedside bothering him as the night progressed, subsequently he actually prostrated himself before her on a few events.(SuchetaDastane)wife’s allegation”sExceptional directions given by my spouse. On ascending in the morning, to look in the minor. Not to fill milk vessel or tea glass to the overflow. Not to serve dinners in metal plates glasses and vessels. To save painstakingly the letters got and if locations of anyone are offered in that to note down the same in the journal of locations. In the wake of serving the first course amid dinners, not to over and again ask 'what do you need?' but rather to illuminate toward the start of the suppers how much and which are the courses. Quite far not to plunge the fingers in any utensils. Not to do any work with one hand. To keep Chi. Shuba six feet far from the primus stove and Shegari. To frequently apply to her "Kajal" and give her tomato juice. To make her do physical activity, to take her for a walk and not to lose temper with her for a year. To give him his musts and the things he requires when he begins to go outside.For this Case, supreme court it was held that every one of the realities manage the conduct of wife can be added up to MENTAL CRUELTY. In This case, as the spouse has excused the mercilessness of his wife by proceeded with sexual connection with her, according to Article23(1) of the Hindu Marriage Act, the separation request can't be conceded 2. Mrs. DeepalakshmiSaehiaZingade v/s SachiRameshraoZingade6In this case wife filed a false case against her husband on the ground of ‘Husband Having Girl Friend’ which is proved as false in a court of law so it can be considered as “cruelty against husband” 5 Narayan Ganesh Dastane vs Sucheta Narayan Dastane 1975 A.I.R.1534 SC 6 Mrs. DeepalakshmiSaehiaZingade v/s SachiRameshraoZingade,AIR 2010 Bom 16 7 Domestic violence against men: A silent law
3. In the case of Smt. MayadeviVs. Jagdish Prasad7honourable Justice Dr. ArijitPasayat, In says “the foundation of a sound marriage is tolerance, adjustment and respecting one another. Tolerance to each other’s fault to a certain bearable extent has to be inherent in every marriage. Petty quibbles, trifling differences should not be exaggerated and magnified to destroy what is said to have been made in heaven.” It means, if the tolerance extends beyond limit, then a party has to approach before the court 1. SMT.SHASHI BALA VS.SHRI RAJIV AROR8: The Petitioner of the case, the wife, was complaining from the beginning that the husband, the respondent was not a man of her taste. She did not response to participate in traditional ceremony of dud-mundri. She also did not take interest in the dinner after wedding. Even she did not allow her husband to have sexual intercourse at the first wedding night. She also filed false cases against her husband. All these were treated as MENTAL CRUELTY by the learned Judge of Delhi High Court., honourable Justice Shri Kailash Gambhir has held that SEXUAL INTERCOURSE IS A MEANS AND AN INTEGRAL ONE OF ACHIEVING ONENESS IN MARRIAGE. 2. VISHWANATH S\O. SITARAM AGRAWAL VS.SAU. SARLA AGRAWAL9 The wife had publicised in the newspapers that her husband was a womaniser and drunkard. She had also made false cases against her husband. All were treated as Mental Cruelty. The Divorce was granted in the appeal. 3. PARVEEN MEHTA Vs. INDERJIT MEHTA10 Supreme courtIn the case in hand the foundation of the case of 'cruelty' as a matrimonial offence is based on the allegations made by the husband that right from the day one after marriage the wife was not prepared to cooperate with him in having sexual intercourse on account of which the marriage could not be consummated. When the husband offered to have the wife treated medically she refused. As the condition of her health deteriorated she became irritating and unreasonable in her behaviour towards the husband. She misbehaved with his friends and relations. She even abused him, scolded him and caught hold of his shirt collar in presence of elderly persons like Shri S.K.Jain. This 7 Smt. Mayadevi Vs. Jagdish Prasad A.I.R. 2007 SUPREME COURT 1426 8 SMT.SHASHI BALA VS.SHRI RAJIV ARORA: Delhi High Court: 21\3\2012: 9 VISHWANATH S\O. SITARAM AGRAWAL VS.SAU. SARLA AGRAWAL : Supreme Court of India : 4\7\2012 : 10PARVEEN MEHTA Vs. INDERJIT MEHTA Appeal (civil) 3930 of 2002 8 Domestic violence against men: A silent law
Court in the case of Dr.N.G.Dastane Vs. Mrs.S.Dastane (supra), observed : "Sex plays an important role in marital life and cannot be separated from other factors which lend to matrimony a sense of fruition and fulfillment".
Recent amendment in section 498a of IPC The major part of its usefulness and the motive of passing such a law is to save the bride from undue harassment by her husband or other family members for the demand of dowry which is undoubtedly a practice done heavily in most of the parts of India. The practice of dowry abuse is rising in India. When the dowry amount is not considered sufficient or is not forthcoming, the bride is often harassed, abused threatened or denunciation of throwing out of the house is given by the husband and his family members. Their life is made miserable. The most severe is “bride burning”, the burning of women whose dowries were not considered sufficient by their husband or in-laws. Most of these incidents are reported as accidental burns in the kitchen or are disguised as suicide. As per the latest report 8172 dowry death cases have been registered in India in 200811. It is evident that there exist deep rooted prejudices against women in India. Cultural practices such as the payment of dowry tend to subordinate women in Indian society. Seeing all about this and its ill-effects in society the legislature drafted Dowry Prohibition Bill in 1961 for womenprotection. This law works as a boon for the victims because they get quick response through it. In 1983, Section 498A of the IPC defined a new cognizable offence, namely, ‘cruelty by husband or relatives of husband’. This means that once such a complaint is registered by the victim or any of her relatives, the police have no option but to take action. If a person is charged under Anti-dowry law, a non bailable warrant is issued and the police is bound to take necessary step against the husband and his family The Central government has proposed to amend the anti-dowry law Section 498Aof Indian Penal Code (IPC) to avoid harassment of husband and his relatives by police12.
11About Section 498a available athttp://www.498a.org/contents/general/domesticviolenceact05.pdf last seen 30/10/15 12 About Section 498a available at http://timesofindia.indiatimes.com/india/False-cruelty-cases-underSection-498A-ruining-marriages-SC-says/articleshow/45424532.cms last seen 09/10/15 9 Domestic violence against men: A silent law
The dowry offence is presently non-compoundable because of which a husband, his parents and relatives are booked on a complaint by a woman of cruelty and demand for dowry. The draft Cabinet note has proposed to make the offence a compoundable offence, which means that the complainant (one who has filed the case, i.e. the victim), can enter into a compromise, and agree to have the charges dropped against the accused. The note, however, cautions that such a compromise, has be "bonafide," and shall be made before the same court before which the trial is proceeding. "Once an offence has been compounded, it shall have the same effect, as if; the accused has been acquitted of the charges,"
The government has argued that it was only following recommendations of the Malimath Committee13. of them had highlighted the misuse of this law across the country. Even if the complaint is false, the accused are presumed guilty until they prove their innocence in the court. If proved guilty, maximum punishment is three years of jail. Delhi High Court maintains that if the offence is made compoundable, the accused can settle the case with the complainant at the trial court itself after arriving at a mutually acceptable agreement. He notes that many are framed by wives only to extract money and subjected to undue harassment in the trial courts until they move the High Court to get it compounded." He during his tenure at Delhi High Court had ruled that no arrest shall be made without the permission of the DCP, who is a senior IPS officer And one of the major reform has also happened that arrest should be done accordingly, as police can’t arrest husband and relative without permission of state district magistrat14e (SDM) before amendment which can be doen without any permission just on the FIR of wife without any Question
13About committee report available athttp://www.pucl.org/Topics/Law/2003/malimathrecommendations.htm last seen 13/15/10 14About false cases available at http://www.498a.org/contents/paperArticles/majorityOfDowryCasesAreFalse.pdf 24/10/15 10 Domestic violence against men: A silent law
Reasons for the amendment When we take into account about the misuse of anti-dowry law a large number of false cases comes into picture against different people along with their family member. The anti-dowry law is more often being misused than used and caution should be exercised by the judiciary in dealing with such cases, Delhi High Court Chief 15“Don’t allow it to happen as the misuse of Section 498(A) of the Act which allows criminal proceedings against husbands and their relatives often nullifies the genuineness of the cases.. we don’t understand why the women misuses these laws perhaps it may be because of the following reason:To get money from husband. Extortion rackets doing large scale business based on these laws as a full time profession.Many corrupt lawyers and police strongly incite and assist the girl in doing this extortion and typically get 20% of cut. That is usually girl files a false complaint at the behest of individuals interested in money (Typically their own mothers or fathers in addition to others involved in getting a share of the spoils) and puts the guy and his entire family in jail and blackmails for money. If she succeeds in say getting 20 lacs, police get 4 lakhs and judge gets 4 lakhs. To go with ex-boyfriend, hidden diseases etc. come to be known after marriage. Then they want to get out of marriage with drawing out money spent in marriage and file these false cases to black-mail. Not able to adjust to the new family. This abuse is so common in India that many of the cases filed in India based on these laws have been proven to be false in a court of law. Supreme Court of India has termed the abuse of these laws as “Legal Terrorism”. Still this is not being abolished.
15About amendment of 498 A available at http://www.498a.org/contents/paperArticles/Check%20dowry %20law%20misuse%20by%20women.pdf last seen 29/30/15 11 Domestic violence against men: A silent law
Present condition of the men In the absence of any systemic data, with more men coming up and reporting violence by women, it is important to understand and examine the issue of violence against men by women and associated factors. With changing gender roles and power relations, the author predicts that this will increase in the future, which will have far-reaching consequences and implications for the larger society and relationships between men and women. The paper attempts to understand the dynamics and factors that play or will play a crucial role in escalating violence against men by women. The paper is based on authors counselling sessions, discussion with men victims of violence, and other secondary sources.The word man is gender-biased, denoting power, embedded with masculine behaviour, appearance, and control of emotion (it is generally believed that men have less emotions than women, although no scientific evidence is available). It is common belief and perception that separates male and female in terms of expression of their feelings. It can be a matter of shame for men to disclose their suffering in a men-dominated society, as it can be perceived as ‘‘feminine behavior.’’ If a married man discloses his suffering to his friend or his family, he fears loneliness and has fear of loss of patriarchy and divorce from his wife or dominating behavior of his wife. It also has ill effects on his family and children and responsibility toward them. Because of this, men start living in distress and cannot disclose their feelings to anybody. Unavailability of a strong support system (counseling services, institutional support, help line, family support, etc.) is another factor.and this is the main reason VIOLENCE AGAINST MALES IS NOT REPORTED.
12 Domestic violence against men: A silent law
