Domestic Violence Act, 2005 By Adv. Kanchan Shah Date: 31/3/2017
A civilisation of a country is known by the treatment it gives to women, children and victims of undeserved want and not by scientific and material progress alone.
WHAT IS DOMESTIC VIOLENCE Domestic violence can be defined as a pattern of behaviour in any domestic relationship that is used to gain or maintain power and control over an intimate partner. It can be described as when one adult in a domestic relationship with another who uses power to control such other adult. It is the establishment of control and fear in a domestic relationship through various forms of abuse such as physical, emotional sexual as well as financial abuse. Domestic Violence isn’t just hitting or fighting or having an occasional argument, it is downright abuse of power where the abuser tortures and controls the victim through calculated threats, intimidation and physical and sexual violence. Sometimes, the abuser may act very subtly like putting down the victim in private as well as in public, often criticizing the victim with an intention to breakdown the victim’s sense of self-respect and confidence, making the victim feel worthless, running the victim high and dry of all financial resources and not letting the victim out of the household. Men or Women could be victims of Domestic Violence. However, the popular belief goes that often women are made victims and are abused. Children in homes where there is domestic violence are often neglected or are abused and made victims.
EVOLUTION OF THE STATUS OF WOMEN IN INDIA ANCIENT INDIA During the early Vedic period women were educated and enjoyed the equal status with the men in all aspects of life. In this period women married at a mature age and were free to select their own husbands through the ‘Swayamvar”, form of marriage or were free to have live-in relationship which was termed as ‘Gandharva Marriage’.
However, in the medieval times the status of women started to decline. In approximately 500BC, women faced confinement and restrictions. The practise of child marriage is believed to have started around the 6th Century. Several Dharmashastras mention the restricted role of women, such as the Manu Smriti: Her father guards her in her childhood; her husband guards her in her youth; and her sons guard her in her old age. A woman is not fit to act on her own.
MEDEIVAL PERIOD Indian women's position in society further deteriorated during the medieval period, when child marriages and a ban on remarriage by widows became part of social life in some communities in India. The Muslim conquest in the Indian subcontinent brought purdah to Indian society. Among the Rajputs of Rajasthan, the Jauhar was practised. In some parts of India, some of Devadasis were sexually exploited. Polygamy was practised among Hindu Kshatriya rulers for some political reasons. In many Muslim families, women were restricted to Zenana areas of the house. Few texts exist that especially deal with the role of women and women behaviour back in the 4th Century. The opening verse in one of the scriptures goes: मम खयय धमरर समम ततषम तवतहतय भभतम रशमशशरषभनम तह : Women are enjoined to be of service to their husbands. In spite of these conditions, women often became prominent in the fields of politics, literature, education and religion. The Bhakti movements tried to restore women's status and questioned certain forms of oppression. Immediately following the Bhakti movements, Guru Nanak, the first Guru of Sikhs, preached equality between men and women. He advocated that women be allowed to lead religious assemblies; to lead congregational hymn singing; to become members of religious management committees; to lead armies on the battlefield; to have equality in marriage, and to have equality in Amrit (Baptism). Other Sikh Gurus also preached the same.
HISTORICAL PRACTISES Sati
Sati is an old, almost completely defunct custom among some communities, in which the widow was immolated alive on her husband's funeral pyre. Although the act was supposed to be voluntary on the widow's part, its practice is forbidden by the Hindu scriptures in the current age. After the foreign invasions of Indian subcontinent, this practice started to mark its presence, as women were often raped or kidnapped by the foreign forces. It was abolished by the British in 1829. Jauhar Jauhar refers to the practice of voluntary immolation by wives and daughters of defeated warriors, in order to avoid capture and consequent molestation by the enemy. The practice was followed by the wives of defeated Rajput rulers, who are known to place a high premium on honour. Evidently such practice took place during the Islamic invasions of India. Purdah Purdah is the practice among some Muslim communities requiring women to cover themselves in front of males for the purpose of modesty. Devadasis Devadasi is often misunderstood as religious practice. It was practised in southern India, in which women were "married" to a deity or temple. The ritual was well-established by the 10th century A.D. By 1988, the practice was outlawed in the country.
BRITISH RULE During the British Raj, many reformers such as Ram Mohan Roy, Ishwar Chandra Vidyasagar and Jyotirao Phule fought for the betterment of women. Peary Charan Sarkar, a former student of Hindu College, Calcutta and a member of "Young Bengal", set up the first free school for girls in India in 1847 in Barasat, a suburb of Calcutta (later the school was named Kalikrishna Girls' High School). While this might suggest that there was no positive British contribution during the Raj era, that is not entirely the case. Missionaries' wives such as Martha Mault née Mead and her daughter Eliza Caldwell née Mault are rightly remembered for pioneering the education and training of girls in south India. This practice was initially met with local resistance, as it flew in the face of tradition. Raja Rammohan Roy's efforts led to the abolition of Sati under Governor-General William Cavendish-Bentinck in 1829. Ishwar Chandra Vidyasagar's crusade for improvement in the situation of widows led to the
Widow Remarriage Act of 1856. Many women reformers such as Pandita Ramabai also helped the cause of women. Kittur Chennamma, queen of the princely state Kittur in Karnataka, led an armed rebellion against the British in response to the Doctrine of lapse. Abbakka Rani, queen of coastal Karnataka, led the defence against invading European armies, notably the Portuguese in the 16th century. Rani Lakshmi Bai, the Queen of Jhansi, led the Indian Rebellion of 1857 against the British. She is now widely considered as a national hero. Begum Hazrat Mahal, the co-ruler of Awadh, was another ruler who led the revolt of 1857. She refused deals with the British and later retreated to Nepal. The Begums of Bhopal were also considered notable female rulers during this period. They did not observe purdah and were trained in martial arts. Chandramukhi Basu, Kadambini Ganguly and Anandi Gopal Joshi were some of the earliest Indian women to obtain a degree. In 1917, the first women's delegation met the Secretary of State to demand women's political rights, supported by the Indian National Congress. The All India Women's Education Conference was held in Pune in 1927, it became a major organisation in the movement for social change. In 1929, the Child Marriage Restraint Act was passed, stipulating fourteen as the minimum age of marriage for a girl. Though Mahatma Gandhi himself married at the age of thirteen, he later urged people to boycott child marriages and called upon young men to marry child widows. Women played an important part in India's independence struggle. Some famous freedom fighters include Bhikaji Cama, Dr. Annie Besant, Pritilata Waddedar, Vijayalakshmi Pandit, Rajkumari Amrit Kaur, Aruna Asaf Ali, Sucheta Kriplani and Kasturba Gandhi. Other notable names include Muthulakshmi Reddy and Durgabai Deshmukh. The Rani of Jhansi Regiment of Subhas Chandra Bose's Indian National Army consisted entirely of women, including Captain Lakshmi Sahgal. Sarojini Naidu, a poet and freedom fighter, was the first Indian woman to become President of the Indian National Congress and the first woman to become the governor of a state in India.
INDEPENDENT INDIA Women in India now participate fully in areas such as education, sports, politics, media, art and culture, service sectors, science and technology, etc. The Constitution of India guarantees to all Indian women equality (Article 14), no discrimination by the State (Article 15(1)), equality of opportunity (Article 16), and equal pay for equal work (Article 39(d)). In addition, it allows special
provisions to be made by the State in favour of women and children (Article 15(3)), renounces practices derogatory to the dignity of women (Article 51(A) (e)), and also allows for provisions to be made by the State for securing just and humane conditions of work and for maternity relief. (Article 42). Feminist activism in India gained momentum in the late 1970s. One of the first national-level issues that brought women's groups together was the Mathura rape case. The acquittal of policemen accused of raping a young girl Mathura on 26th March, 1972 in custody led to country-wide protests in 1972-1980. The protests, widely covered by the national media, forced the Government to amend the Evidence Act, the Criminal Procedure Code, and the Indian Penal Code; and created a new offence, custodial rape. Female activists also united over issues such as female infanticide, gender bias, women's health, women's safety, and women's literacy. Since alcoholism is often associated with violence against women in India, many women groups launched anti-liquor campaigns in Andhra Pradesh, Himachal Pradesh, Haryana, Odisha, Madhya Pradesh and other states.Many Indian Muslim women have questioned the fundamental leaders' interpretation of women's rights under the Shariat law and have criticised the triple Talaq system. The Allahabad High Court has given a boost to Muslim women’s rights by calling the Islamic practice of divorcing the wife by saying the word, ‘Talaq’ three successive times as, ‘unconstitutional’. In its judgement the Allahabad High Court said, ‘No personal law is above the Constitution’. The Supreme Court is also hearing a petition challenging the validity of, ‘Triple Talaq’. In the 1990s, grants from foreign donor agencies enabled the formation of new women-oriented NGOs. Self-help groups and NGOs such as Self Employed Women's Association (SEWA) have played a major role in the advancement of women's rights in India. The Government of India declared 2001 as the Year of Women's Empowerment (Swashakti).The National Policy For The Empowerment Of Women came was passed in 2001. In 2006, the case of Imrana, a Muslim rape victim, was highlighted by the media. Imrana was raped by her father-in-law. The pronouncement of some Muslim clerics that Imrana should marry her father-in-law led to widespread protests, and finally Imrana's father-in-law was sentenced to 10 years in prison. The verdict was welcomed by many women's groups and the All India Muslim Personal Law Board. According to a report by Thomson Reuters, India is the "fourth most dangerous country" in the world for women, India was also noted as the worst country for
women among the G20 countries,however, this report has faced criticism for its inaccuracy.[48] On 9 March 2010, one day after International Women's day, Rajya Sabha passed the Women's Reservation Bill requiring that 33% of seats in India's Parliament and state legislative bodies be reserved for women
AS PER STATISTICS Violence against women cuts across boundaries, religions, cultures and income groups. It is a global problem. Although the forms of violence may vary, the purpose is the same – to disempower the woman! According to a UN report in October 2005 around two third of the Indian married women were victims of domestic violence. Renuka Chowdhury, former Union minister for Women and Child Development, stated in 2006, that around 70% of women in India are victims of domestic violence. However her statistics were disputed by Save Indian Family Foundation, stating that Renuka Chowdhury talked about the reported dowry death cases and deliberately avoided mentioning the actual convictions in “dowry death trials” after false cases are dismissed in the courts. According to a BBC report, in 2013, around 3,09,546 crimes were reported against women of which 1,18,866 were for domestic violence alone.
UNDER REPORTING OF DOMESTIC VIOLENCE There is widespread hesitancy amongst the Indian women who experience domestic violence to report or prosecute against such crimes. Domestic violence was often not handled as a legitimate crime or complaint, but more of a private or family matter. But now this trend has changed. Section 498a introduced to protect women from Domestic Violence. Caste, class, religious bias and race also determine whether action is taken or not. For example, poor or lower-caste females do not have the same access to legal enforcement or education and often have trouble getting help from law enforcement. There are many other reasons women in India silently undergo domestic violence often at the hands of their husband and/or husband’s family members. Some of these reasons are listed below: 1) In India, parents often raise their girl child calling them, ‘paraya dhan’ which means ‘wealth that belongs to someone else’. Hence a girl child is raised with the values that her maternal home is not her home, it is the matrimonial home that is hers. On the day of the marriage the girl is sent away with the strict instruction that her husband’s home is her home and she must not return to her maternal home no matter the circumstances. Hence the woman who is victimised by her husband and/or her husband’s
family members continues to suffer silently as she feels she has no-where to go. 2) In our culture, parents often choose to get their daughters married as soon as they turn major giving them little or no opportunity to make their careers. Thus, when the woman is abused in her matrimonial home she has no financial capacity to leave her matrimonial home and support herself. 3) Once the woman is married and had children, the woman who is being victimised in her matrimonial home often feels that it is best to stay silent and endure the abuse for the sake of her children. The woman is often under the erroneous belief that she needs to provide her children with a complete home and the security of a father. The woman who is undergoing domestic violence does not realise that in doing so she is setting the wrong example for her children. She is actually teaching her daughter that, ‘it is ok to get abused by your husband and that because he is your husband he has a right to abuse you’. She is also teaching her son that, ‘it is okay to abuse your girlfriend or wife as you are a man and the right to abuse comes with being a man’.
4) The woman who is being abused in her matrimonial home often feels that it is best to stay silent then to raise her voice and stand up against the abuse as she is giving her children a complete family. The woman does not realise that it is best that she give her children one sane parent then a pair of parents, one of whom is an abuser and the other who is abused and is incapable to taking care of the children as a result of which none of the two parents are role models for the children. MANIFESTATIONS OF DOMESTIC VIOLENCE ACROSS THE LIFE SPAN OF A WOMAN 1) Physical Abuse Physical injury is the most visible form of domestic violence. The scope of physical domestic/intimate partner violence includes slapping, pushing, kicking, biting, hitting, throwing objects, strangling, beating, threatening with any form of weapon, or using a weapon. Physical injuries as a result of domestic violence against women are more obvious than psychological ones, and can be more easily discerned by health professionals as well as courts of law in the context of legal prosecution. Physical abuse is defined as any act or conduct which is of such a nature as to cause bodily pain, harm or danger to life, limb or
health or an act that impairs the health or development of a person aggrieved or that includes assault, criminal intimidation and criminal force. 2) Emotional Abuse Deprivation of love, care, affection, support, sympathy and appreciation. Restricting freedom of choice, taunts/ insults, threatening, humiliating, ignoring/ being indifferent, false accusations of extramarital affairs, forcible sex determination test, forcible abortion. Depriving sexual needs, inflicting mental anguish and isolation. It can be defines as any insult, ridicule, humiliation, name-calling and such acts. If the abuser were to threaten to cause harm to any person who the aggrieved person is interested in or threat to cause harm to children and/or relatives of the aggrieved person. 3) Sexual Abuse It is any conduct of a sexual nature that abuses, humiliates, degrades or otherwise violates the dignity of a person. It also includes instances of marital rape when a woman is forced to have sexual relations with her husband against her will. 4) Economic Abuse The deprivation of economic or financial resources to which the aggrieved woman or child is entitled to under law or custom or which the aggrieved person requires out of necessity. This usually comes into play where the husband tends to deprive the wife of necessary money as a weapon. The law also sees the husband who sells off his wife’s jewellery and assets as being guilty of economic abuse. 5) Social Abuse Child marriage, sati, dowry and dowry deaths, social and religious restrictions, insult in society, abandonment from home. Some of these are so commonly seen in the houses, that one does not even realize that the person is getting abused. 6) Killing of Female Foetus In my opinion this is the grossest form of domestic violence, depriving a female foetus the right to life. According to a 2005 study, twenty million female foetuses may have been aborted in India over the last two decades. It is with this in mind that the new Protection of Women from Domestic Violence Act, 2005 was passed. PROTECTION OF WOMEN FROM DOMESTIC VIOLENCE ACT, 2005 Domestic violence or more simply violence at home is an invasion on one’s right to live safely. It infringes on one’s basic right to feel comfortable within the confines of one’s house which to all domestic
violence victims is not a home. A home where one can live without any fear or insecurity. It is with this in mind that the new Protection of Women from Domestic Violence Act, 2005 was passed. For the purpose of this Act it is important to define Domestic Relationship. Domestic Relationship: It implies a relationship between two persons who live or have, at any point of time, lived together in a shared household, when they are related by consanguinity, marriage or through a relationship in the nature of marriage, adoption or are family members living together as a joint family. Before this Act came in to force on 26th October, 2006, the law necessitated the production of physical evidence for the crime to be tried. However, now physical violence is not the only crime for which the perpetrators of domestic violence can be tried. The definition of violence has been broadened to include emotional violence and mental torture as well. It seeks to provide protection against sexual abuse and also marriages that are thrust upon unwilling girls. Protection of Women from Domestic Violence Act, 2005, also acknowledges the domestic violence that women undergo at the hands of their live-in partners, thus legalising live-in relationships to a great extent. DO WE NEED A GENDER BIASED LAW The Madras High Court Bench here has observed that Protection of Women from Domestic Violence Act, 2005 suffers from inherent flaws which tempt women to misuse their provisions and men to dread being prosecuted under the law without any rhyme or reason. Dismissing a writ petition, Justice S. Vaidyanathan said: “The notable flaw in this law is that it lends itself to such easy misuse that women will find it hard to resist the temptation to teach a lesson to their male relatives and will file frivolous and false cases. “Now-a-days, filing cases under the Domestic Violence Act by women has become a common one. Therefore, a neutral and an unprejudiced law is needed to protect the genuine victims of domestic violence irrespective of their gender.” The judge also said that a similar trend of misuse was observed in the case of Section 498A (a woman being subjected to cruelty by her husband or his relatives) of the Indian Penal Code. It forced the Supreme Court to term such misuse as ‘legal terrorism’. Apart, from the fact that the Act is being misused by women for vengeance, there have been reported cases where male members of a
family are being victimised by domestic violence at the hands of their female partners. Impact of the Act has worsened the situation for men as it is widely misused by women and often used as a tool to blackmail men in a similar manner in which Sec.498A of Indian penal code is been misused. This law deals with basic human rights and fundamental rights of women but strictly prohibits men to get any protection under the same situation. The role of media is also biased towards women as it hypes the issue of violence against the women but very rarely brings into open the issue of domestic violence against the men. Hence, this has become a very critical issue and to fight with such a situation some amendment in Protection of Women from Domestic Violence Act is required so that it widens the scope of domestic violence and society does not get divided on the basis of gender. WHAT NEEDS TO BE DONE In today’s changing society it is extremely vital for the society and legislature’s need to understand that domestic violence does necessarily mean torture to a female, it means any physical, verbal, emotional or any other kind of abuse by one human being on other within the four walls of the house, and discriminating it on the basis of gender is not just unfair but it is also against the principle of natural justice. Domestic violence does not only affect the life of victim but also affects the lives of the victim’s children who are innocent. It does not matter whether violence is against a man or a woman. Domestic violence is a crime and hence law must be stringent to safeguard, both men and women. Anyone and everyone who commits this heinous crime must be punished severally. We do need an Act like Protection of Women from Domestic Violence, but not in the current form. The Act requires amendment so as to bring under its purview men who are being victimised at the hands of their women. In fact, it is the need of the hour to bring under its purview the safety of gay men and lesbian woman as well. The present form of this Act wholly biased towards women and men are discriminated, their fundamental and legal rights are been grossly violated. It is also imperative that media play an active role to amend this discriminatory and biased law, to enable the society to come overcome this evil.
