Domestic Violence Laws

 

Domestic Violence Laws in India

Domestic Violence

Study Material for CLAT and other law entrance exams                 

What is Domestic Violence?

Domestic violence is defined as a violent control exercised by one person over another. It is also defined as the use of various forms of abuse to establish control and fear in a relationship. Torture can take many forms, including psychological, sexual, economic, and physical. This is not only a social issue but also a serious human rights violation that puts the victim's health and social well-being at risk.

The United Nations defines it as "intimate partner violence", in which one person in a relationship uses threats, emotional abuse, manipulation, hurting, injury, or economic abuse to gain control over the other, and the victim can be anyone regardless of age, gender, race, sexual orientation, class, or faith.

It can begin as verbal abuse and an excess of dominant behaviour towards that person's physical and emotional torture. It is easy to assess the violent behaviour of the abuser when the victim is hit or physically tortured, but most victims do not even recognise domestic abuse and simply consider the abuser to be dominant, strict, caring for the victim.

Forms of Domestic Violence

Physical Injury

The most visible form of domestic violence is physical injury.

Slapping, pushing, kicking, biting, hitting, throwing objects, strangling, beating, threatening with any type of weapon, or using a weapon are all examples of physical domestic/intimate partner violence.

Physical injuries caused by domestic violence against women are more visible than psychological ones, making them easier to detect by health professionals and courts of law in the context of legal proceedings.

Emotional Abuse

Emotional abuse has gained increasing recognition in recent years as an extremely common form of domestic violence (and thus a human rights violation) within the private home in developing countries such as India.

Psychological abuse can destroy a woman's self-esteem and be extremely harmful to her mental and physical health. Harassment, threats, verbal abuse such as name-calling, degradation, blaming, stalking, and isolation are examples of emotional/psychological abuse.

Domestic violence victims have significantly higher levels of overall emotional distress, as well as alarmingly high rates of suicidal thoughts and attempts.

Sexual Assault

Domestic sexual assault is a type of domestic violence that includes sexual or reproductive coercion as well as marital rape.

Marital rape is not a crime in Indian law, except during the partners' marital separation period.

In Section-375 (IPC), forced sex in marriages is only considered a crime if the wife is below the age of 15 years.

Therefore, marital rape is not an IPC crime.

Victims of marital rape must file a complaint under the Protection of Women from Domestic Violence Act of 2005. (PWDVA). The PWDVA, which went into effect in 2006, makes marital rape illegal.

However, the offence is only punishable by a civil lawsuit.

Honor Killing

An honour killing is a practice in which a person is killed by one or more family members because he or she is thought to have brought shame to the family.

Refusing to enter an arranged marriage, having sex outside of marriage, being in a family-disapproved relationship, starting a divorce proceeding, or engaging in homosexual relations are all examples of shame.

In 2010, the Supreme Court of India issued a notice to the states of Punjab, Haryana, Bihar, Uttar Pradesh, Rajasthan, Jharkhand, Himachal Pradesh, and Madhya Pradesh, requesting data and explanations for an increase in honour killings.

Dowry-related abuse and deaths (bride burning etc.)

The ritual of dowry is a grave problem in society for almost all Hindu families. Some newly-married brides are harassed, molested, or killed when they thought she didn't have enough marriage dowry to bring about.

Suicides of brides by hanging, self-poisoning, or fire occur in some cases, in dowry deaths(suicide), the groom's family is the murderer.

Process of filing Domestic Violence cases in India

A woman must file a complaint in the nearest Mahila court or the First-Class Magistrate describing the situation. She may seek both civil and criminal remedies.

Upon receiving a complaint about an investigation into the commission of Domestic Violence, the protection officer prepares an incident report. 

Following an investigation into the allegations of domestic violence made by the complainant, the protection officer prepares a report.

The Supreme Court has cleared the point in the leading landmark judgements that Domestic Violence can be committed by women against women and it shall be counted as an offence.

Laws available for Protection of Women from Domestic Violence

Protection of women from Domestic Violence Act, 2005 and Section-498A read with other relevant sections such as 406, 323, and 354 of IPC defines various laws for the protection of women from domestic violence.

Women in Live-in-relationship can also seek remedies under the Protection of Women from Domestic Violence Act, 2005.

The Prevention of Women Against Domestic Violence Act, 2005, is a separate law in India that protects women from domestic violence. The Acts also apply to women in live-in relationships and provide a remedy for physical, mental, financial, and sexual violence. The Act establishes a woman's rights even if she wishes to be separated from her family due to domestic abuse. Furthermore, any act of physically or mentally harassing the lady of the house for dowry is illegal under Section 498 A of the Indian Penal Code. In the case of domestic violence, the provisions cover almost every aspect of mental and physical health.

Legal proof required to file a case of Domestic Violence

Documentary proof, Testimony of Eyewitness, Secondary evidence like audio,  video, etc.

Difference between a 498A and Domestic Violence case

Domestic violence is defined as any form of harassment or violence, even if there is no demand for dowry, such as physical, mental, social, or economic abuse. Whereas Section-498A of the IPC is referenced when a victim is subjected to harassment due to non-fulfilment of dowry demand.

Husband asking his wife to leave the Matrimonial home will amount to Domestic Violence.

What if a man is a victim of Domestic violence?

If a man is a victim of domestic violence, he must report it to the police and attempt to file an FIR with documentary evidence such as MLC (medicolegal case). Despite the fact that no special legislation is required.

Domestic Violence laws can be applied to the LGBT(lesbian, gay, bisexual, and transgender) community in India.

Reliefs to the victim (under The Domestic Violence Act, 2005)

Victim Resource  

The victims should be given housing, medical care, and legal assistance whenever needed, under the Act.

Counselling [Section-14(1)]

The Magistrate may, at any stage of the proceedings under this Act, direct the respondent or the aggrieved person, either singly or jointly, to undergo counselling with any member of a service provider who possesses such qualifications and experience in counselling as may be prescribed.

The function of Protection officer (Section-9)

A protection officer shall be appointed in each district, as specified in the Act. The officer's responsibilities include filing a domestic violence incident report and providing medical care and legal assistance to the victim if needed.

Residence (Section-19)

For the victim's safety, the magistrate might prohibit the respondent from communicating with the victim by personal, oral, electronic, or telephonic communication.

Compensation (Section-22)

The magistrate might order the respondent to pay the victim a specific sum of compensation and damages under Section-22 of this Act.

In the case of breach of protection order [Section-32(2)]

Under Section 32(2) of the Act, under the sole testimony of the victim, the court may presume that the accused has committed the offence (A breach of protection order, or of an interim protection order, by the respondent shall be an offence under this Act and shall be punishable with imprisonment of either description for a term which may extend to one year, or with fine which may extend to twenty thousand rupees, or with both). The offence is stated as non-cognizable and non-bailable.

Speedy Trial

The Act provides a fast trial by requiring the court to begin the proceedings within three days of receiving the complaint and to render a decision within 60 days after the hearing date.

Proceedings in camera (Section-16)

Section-16 of chapter-IV allows the magistrate to hold the proceedings in camera if either party desires to do so.

Custody of Child (Section-21)

Notwithstanding anything contained in any other law for the time being in force, the Magistrate may, at any stage of hearing of the application for a protection order or for any other relief under this Act grant temporary custody of any child or children to the aggrieved person or the person making an application on her behalf and specify, if necessary, the arrangements for the visit of such child or children by the respondent.

Monetary relief (Section-20)

Domestic abuse victims are entitled to monetary compensation under Section-20 of the Act. The injured party or her children are entitled to support under Section-125 of the Code of Criminal Procedure, 1973.

Punishment for (Cruelty Section-498A of Indian Penal Code)

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 writer is pursuing a degree of BA.LL.B (Bachelors of legislative law)

From, Department Of Law, Maharshi Dayanand University (Rohtak) Haryana, INDIA.