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ENGLISH
FINAL DRAFT ON:
DOMESTIC VIOLENCE A TORTIOUS ACT
Submitted for the project undertaken in partial fulfilment of B.A. LL.B. (Hons.)II Sem.
5 year integrated course at RMLNLU, Lucknow.
SUBMITTED TO:
SUBMITTED BY :
AVANI JAIN
Dr. RMLNLU
Introduction
Bride tortured to death for dowry, School going kid succumbs to his injuries after beaten
by father, A seventy year old man killed over property dispute, Harassment of men in
Chandigarh
Reports of such kind of violence can be found all over the country. Though associated with
just crime against women, domestic violence can also affect children and even men.
Domestic Violence against Women is most common of all due to orthodox and idiotic mind
set of the society that women are physically and emotionally weaker than the males. Though
women today have proved themselves in almost every field of life affirming that they are no
less than men, the reports of violence against them are much larger in number than against
men.
Violence against women is a manifestation of historically unequal power relations between
men and women, which have led to domination over and discrimination against women by
men and to the prevention of the full advancement of women, and that violence against
women is one of the crucial social mechanisms by which women are forced into a
subordinate position compared with men.1
Since times immemorial, domestic violence has been an intrinsic part of the society we are
living in. The contributing factors could be the desire to gain control over another family
member, the desire to exploit someone for personal benefits, the flare to be in a commanding
position all the time showcasing ones supremacy so on and so forth. On various occasions,
psychological problems and social influence also add to the vehemence.
The most common causes for women stalking and battering include dissatisfaction with the
dowry and exploiting women for more of it, arguing with the partner, refusing to have sex
with him, neglecting children, going out of home without telling the partner, not cooking
properly or on time, indulging in extra marital affairs, not looking after in-laws etc. In some
cases infertility in females also leads to their assault by the family members. The greed for
dowry, desire for a male child and alcoholism of the spouse are major factors of domestic
violence against women in rural areas.
The Tandoor Murder Case of Naina Sahni in New Delhi in the year 1995 is one such
dreadful incident of a woman being killed and then burnt in a Tandoor by his husband.
This incidence was an outcome of suspicion of extra marital affairs of Naina Sahni
which led to marital discord and domestic violence against her.
In urban areas there are many more factors which lead to differences in the beginning and
later take the shape of domestic violence. These include more income of a working woman
than her partner, her absence in the house till late night, abusing and neglecting in-laws, being
more forward socially etc.
Other forms of physical abuse against women include slapping, punching, grabbing,
burdening them with drudgery, public humiliation and the neglect of their health problems.
Some of the other forms of psychological torment against them could be curtailment of their
rights to self-expression and curbing the freedom to associate with the natal family and
friends.
A Tortious Act
Domestic violence has created massive uncompensated intentional torts. Domestic violence
causes serious and widespread harms, particularly to women. The national scope of the
problem was made plain when Congress passed the Violence against Women Act of 1994,
which included criminal provisions, funding for services and law enforcement, and a civil
remedy provision. People who commit domestic violence generally are, in theory, liable
under intentional tort theories, in addition to whatever liability they may face under criminal
law.
The Protection of Women from Domestic Violence Act, 2005 provides new civil remedies
for the victims of domestic violence, especially when the members of the family injure
women. This law recognized new set of rights and obligations in the nature of torts, to secure
women in their own families. It provides a new set of tortuous law remedies to persons within
family relations. This law is a kind of codification of tortuous liability4.
But despite the frequency with which people are injured by domestic violence torts, very
few tort suits are brought to seek recovery for the harms domestic violence causes. This under
enforcement is caused by several factors.
First, standard liability insurance policies generally do not cover domestic violence torts.
Second, many defendants have limited or no assets. Third, statutes of limitations are typically
shorter for intentional torts than for negligence.
Historical Perspective
To understand the PWDVA 2005, we need to understand the history of laws relating to
violence against women.
The enactment of the Dowry Prohibition Act of 1961 was a legacy, as dowry had been
identified as social evil even in undivided India. The enactment of Central Legislation in
1961, soon after independence, came as recognition of the fact that giving and taking of
dowry was a nation-wide practice and needed to be prohibited by law. It said that any person
who gives, takes, or abets the giving or taking of dowry shall be punished with imprisonment,
which may extend to six months or with fine up to Rs. 5,000 or with both.
Dowry that started off as a practice to give away presents to the departing daughter, usually
some resources to begin her new married life, slowly assumed extraordinary proportions and
turned into a social evil. Brides were expected to bring the "gifts" regardless of their personal
willingness.
It was in early 80s that not only did dowry continue to raise its ugly head, but its association
with violence and death became very evident. The death of women within home was often
close as accident or suicide. Hardly ever it was prosecuted as murder. The later
realisation of this violence came to stay, and IPC was amended in 1983 to introduce cruelty to
married women as an offence under Section 498A IPC.
Although the terms of Section 498A IPC are broad and intended for all forms of violence
against women, but in the implementation and understanding of law enforcement agencies, it
became synonymous with demand of dowry and thus was not implemented appropriately.
Soon after 498A IPC was enacted, Section 304B IPC was introduced in year 1986, which
made death of a women in the matrimonial home within 7 seven year of marriage an offence,
if it could be shown that she was subjected to cruelty immediately before her death.
But were these enough to reduce the violence against women?
A need of civil law on domestic violence was felt. There was no law in place enabling judges
to give protection orders and injunctions or any monetary relief in case where women go to
court to complaint against domestic violence. All remedial measures were part of family law,
or more particularly law of Divorce. There was no unambiguous policy of elimination of
violence against women.
In recognition of a substantive law that provided a comprehensive definition of domestic
violence, the first draft of the Domestic Violence (Prevention and Protection) Bill was
formulated in 1998 by the Lawyers Collective Womens Right Initiative. The draft was
finalised and submitted to National Commission for Women. The Advocacy efforts proved to
be very effective with the bill being passed unanimously in both Houses of Parliament in
2005. The bill we know as The Protection of Women from Domestic Violence 2005
(PWDVA). The Rules under the Act were passed and notified in 2006.
In 1983, realisation of domestic violence as a criminal offence resulted into the introduction
of section 498-A into the Indian Penal Code. It dealt with cruelty by husband or his family
towards a married woman. Cruelties discussed in this law were:
The punishment was imprisonment for up to three years and a fine. The complaint against
cruelty wasnt needed to be lodged by the person herself. Any relative could also make the
complaint on her behalf.
In Soran Singh v. State,5 Mamta was sexually harassed by Soran Singh, her father-in-law.
Also Soran Singh and Mamtas husband continuously harassed her for demand of dowry.
Later on, she committed suicide. In this case the court held that Appellant Soran Singh shall
suffer Rl for a period of 10 years for the offence punishable under Section 304B IPC and
shall suffer imprisonment for a period of 3 years for the offence punishable under Section
498A IPC. Appellant Rakesh shall suffer Rl for a period of 7 years for the offence punishable
under Section 304B IPC and shall suffer imprisonment for a period of 3 years for the offence
punishable under Section 498A IPC.
Then came The Protection of Women from Domestic Violence Act 2005, which was the
first significant attempt by the Indian Government to recognise domestic abuse as a
punishable offence, the provision of which extend to in live- in relationships, and to provide
for emergency relief to the victims, in addition to legal recourse. PWDVA protects an
aggrieved person from father-in-law, mother-in-law, or even siblings of the husband and other
relatives and proceedings could be initiated against them too. It empowers women to file a
case against a person with whom she is having a domestic relationship in a shared
household, and who has subjected her to domestic violence
Complaint can be filed by the victim aggrieved person or relatives, it will be considered as
the prima-facie evidence of the offence. Every Domestic Incident Report has to be prepared
by the Protection Officer which will assist in the further investigation of the incidence. The
protection officer will pass certain orders i.e. protection of the women, custody of respondent
and order of monetary relief to the victim.
Children are also covered by the Act; they too can file a case against a parent or parents who
are tormenting or torturing them, physically, mentally, or economically. Any person can file a
A woman who is the victim of domestic violence will have the right to the services of the
police, shelter homes and medical establishments. She also has the right to simultaneously
file her own complaint under Section498A of the Indian Penal Code Sections 18-23 provide a
large number of options for legal redressal. She can claim through the courts Protection
Orders, Residence Orders, Monetary Relief, Custody Order for her children, Compensation
Order and Interim/ Ex party Orders.
The Act also provides for Counselling and Assistance of welfare expert. Sec.16 of this Act
provides for the proceeding to be held in camera at the discretion of Magistrates or if the
parties desire so. Victim should seek the help of Police and should register on FIR and the
Police on duty is bound to register the same. There are Womens Police stations in some of
the states in India. Professional Counsellors are attached to these Police Stations and they try
to harmonize the relation between spouses.
In Jayachandra V Aneel Kaur (2005) case the Court held that cruelty may be
intentional or unintentional.
If a husband violates any of the above rights of the aggrieved woman, it will be deemed a
punishable offence. Charges under Section 498A can be framed by the magistrate, in addition
to the charges under this Act. Further, the offences are cognizable and non-bailable.
Punishment for violation of the rights enumerated above could be one years imprisonment
and/or a maximum fine of Rs. 20,000.
On 19 March 2013, the Indian Parliament passed a new law with the goal of more effectively
protecting women from sexual violence in India. It came in the form of the Criminal Law
(Amendment) Act, 2013, which further amends the Indian Penal Code, the Code of Criminal
Procedure of 1973, the Indian Evidence Act of 1872, and the Protection of Children from
Sexual Offences Act, 2012. The law makes stalking, voyeurism, acid attacks and forcibly
disrobing a woman explicit crime for the first time, provides capital punishment for rapes
leading to death, and raises to 20 years from 10 the minimum sentence for gang rape and
rapes committed by a police officer. The new law doesnt address marital rape, rape
committed by the armed forces or rape against men.6
In cases of Intimate Partner Violence, violence against women leads them to maintain a
distance from their partner. Their sexual life is affected adversely. Many of them file for
divorce and seek separation which again affects the life of children. Some continue to be
exploited in lack of proper awareness of human rights and laws of the constitution.
In India the rate of domestic violence is around 45%. Actually it is far more because most of
the cases either not reported or expressed. Every six hours, a young married woman is burnt
alive, beaten to death or forced to commit suicide in India.
Thirty three-year-old Santosh Raj faced a similar predicament. His world came crashing
down when three months into his marriage, his wife hired goons, who not only attacked him,
but also beat up his parents, brothers and sister. She demanded 1 crore for a divorce. His
father somehow brought this amount down to 35 lakh. As per the arrangement, 15 lakh was
paid and the remaining amount was to be paid after the divorce was finalized. But they soon
started asking for the remaining amount. He knew that they wouldn't stop harassing him if he
gave them 20 lakh, so he went underground for some time
negative, children are bound to get influenced by it. They may adopt the negative traits of the
ill they see around them or develop a hostile approach in life because of the ill-treatment they
are subjected to. If a child is beaten badly for underperforming in school, he may do the same
to his children, thinking it might be the only possible way of making a person to work hard.
Whenever a child is dropped out of school because of poor financial condition or when he is
engaged in some form of child labour, there is a sudden leap which the child tries to take
from his childhood to the manhood. In this process he misses out the values and morals a
person should inculcate in him as a good human being. He fails to develop a vision to see
things from an unbiased point of view. All these factors make a child insensitive towards the
society and the societal needs. Every instance of child abuse causes a callous indifference to
suffering.
However in the process of comprehending the wrong being done to them, many children are
traumatised and psychologically disturbed. They find it unsustainable and may lose out their
mental soundness. Children who are victimised by physical violence may become
handicapped as well. In some cases children prefer to run away from home and try to become
self-dependent. Some commit suicide. Some indulge in malpractices because of improper
education and bad company they become a part of after leaving the home. Some even
reciprocate the violence they are subjected to by harming the family members.
Girls also develop a feeling of insecurity in their homes when they are sexually exploited.
They lose their self-confidence and desire for living. A girl child from violent home can
withdraw from society and become completely depressed. Children from violent homes
become disobedient and violent and start using aggression to solve their problems.
Adolescents may succumb to drugs and alcohol when treated harshly. Some helpless and
abandoned children are picked up gangs who sell their organs for making huge amount of
money. In most of the cities, the group of beggars at traffic lights or railway platforms are the
abandoned children who are physically deformed forcefully for begging. The children who
escape being a part of this vicious circle are looked after by children welfare organizations
like, Indian Child Welfare Association (ICWA), Child Relief and You (CRY) and Child Line
etc.