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 isnt
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 victims 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:

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 ne Mead and her daughter Eliza Caldwell ne 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 womens 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 husbands 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 husbands 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 husbands
 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 wifes
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

ones right to live safely. It infringes on ones basic right to feel
comfortable within the confines of ones 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 todays changing society it is extremely vital for the society and

legislatures 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 victims 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.