domestic violence
source: https://www.sakaltimes.com/

Introduction

Domestic Violence is defined as “violent or aggressive behavior within the home, typically involving the abuse of a current or former spouse, intimate partner or child.” Domestic Violence is one of the serious issues of any country for ages. It is a worldwide crime & occurs across every culture in every social grouping in society regardless of age, race, religion, gender, or sexual orientation. It is a fundamental violation of human rights[1].

Domestic violence is not physical violence alone; it may be any type of behavior for the motive of gaining power & control over a spouse, partner, or intimate family member.  According to the 2005 study by the National Crime Council associated with the Economic and Social Research Institute, 15% of women and 6% of men are victims of severe domestic abuse[2].

What is violence against women according to the US Department of Justice office?

According to the United States Department of Justice office on violence against women, the definition of Domestic Violence is a pattern of abusive behavior in any relationship that is used by one partner to gain or maintain control over another intimate partner. Many types of abuses are included in the definition of Domestic Violence-

  • Physical abuse-

Physical abuse can be included hitting, biting, slapping, battering, shoving, punching, pulling hair, burning, cutting, pinching, etc. It also includes denying someone medical treatment and forcing the use of drugs/alcohol on someone.

  • Sexual abuse-

Sexual abuse occurs when the abuser coerces or attempts to coerce the victim into having sexual contact or sexual behavior without the victim’s consent. Attacking sexual body parts, physical violence followed by forcing sex, sexually demeaning the victim, etc are the kind of Sexual abuse.

  • Emotional abuse-

Emotional abuse involves criticism, name-calling, injuring the victim’s relationship with his/her children, etc.

  • Economic abuse-

Economic abuse means when one intimate partner has control over the other partner’s access to economic resources. It is also called financial abuse, which is illegal or unauthorized use of a person’s property, money, pension book, etc.

  • Psychological abuse-

Psychological abuse involves the abuser invoking fear through intimidation, threatening to physically hurt himself/herself, the victim, children, the victim’s family or friends, etc. It also includes prohibiting the victim from going to school or work.

  • Stalking-

Stalking may be included following the victim, spying, watching, harassing, and sending gifts, leaving written messages, or appearing at a person’s home or workplace.

  • Cyberstalking-

Cyberstalking refers to online action or repeated emailing that inflicts substantial emotional distress in the recipient[3].

Causes of Domestic Violence

The causes of Domestic Violence are complex with many different factors influencing it. One of the most common factors is the generational cycle of violence in a family.  Some families have the characteristics of generation wise male chauvinism or female chauvinism. So, the descendant learns from their family members the atrocities towards the other family member.

Another factor is the results of the traditional mindset of society. Conservative males believe that their wife belonged to them & she was their property. They wouldn’t recognize the women as equal and believe they were entitled to treat them as they pleased. Men want to control their wives. Increasing Jealousy and insecurity to each other is also a factor regarding Domestic Violence.

It is believed that domestic violence is a learned behavior, rather than as a result of personality, stress or alcohol misuse, unhappy relationship, etc. Research shows that teenagers who suffer from mental illness are also at risk for being an abusive relationship in young adulthood. African-American and Hispanic teens have been found to be at higher risk for being victims of teen domestic violence, with some studies indicating independence of socioeconomic status. Another risk factor for teen domestic violence includes low grades[4].

The effect  & consequence of Domestic Violence is immense. Victims of Domestic Violence may feel depressed, isolated, suicidal, worthless, humiliated, lack of confidence, etc. By isolating the victim the abuser has full control. Victims may be affected by all those mental injuries as well as physical injuries also. There are issues such as Unwanted Pregnancies, irritable bowel syndromes, headaches, backaches which are ongoing problems women suffer because of violence.

An overview of Domestic Violence in India and its legal aspect

In India, the impact of Domestic Violence is mostly seen against women, because it has its roots in the patriarchal set up of society. Women have always considered being the weaker sex. Right from the later Vedic age to the 21st century, Indian women have never experienced the freedom that men have.

They have been always subjected to inequality. Therefore, domestic violence against women is recognized as a significant barrier to the empowerment of women.

According to the National Family Health Survey (NFHS-II) data: Women in the age group of 15-49, are the victim of severe domestic abuses.  The analysis shows that those women belonging to low socio-economic status are more likely to agree with each of the different reasons justifying wife-beating. Again, domestic violence is frequent among people of lower autonomy and women belonging to low socio-economic status[5].

  • Pre-Independence period-

It has been seen that Domestic Violence is happening especially on Women because women are physically weaker than males. Domestic Violence against women is an age-old phenomenon. In the study, it is found that women are the worst victims of Domestic Violence during the medieval age. Further During the British Period also, Indian women were the severe victim. In that era, the British tried to protect women in various ways during the reign of some generous Governor Generals declaring illegal of some traditional customs of Indian society like Child Marriage, Satida Pratha  [6], etc.

  • Post-Independence period-

In Post Independence, the democratic government of India tried to establish equality among males and females. They tried to empower women in the shadow of our Constitution, implementing  Fundamental Rights and various other Provisions. Yet, these measures could not control the atrocities against women in the household as well as various fields. Domestic Violence at home is, unfortunately, a reality of Indian society. In the Indian Patriarchal setup, it turned into a satisfactory practice to mishandle women. There might be numerous explanations behind the event of domestic Violence, hence India has various legislations for the same. So the Government of India under the framework of our Constitution enacted some provisions as well as legislation from time to time to protect women from such violence [7]. There are three such  laws  in India that deals directly with domestic violence:

  • The section 498A of the Indian Penal Code
  • The Dowry Prohibition Act,1961
  • The Protection of Women from Domestic Violence Act,2005.

Section 498A of the Indian Penal Code:

Indian Penal code, 1860 is the most important substantive criminal law to impose certain amendments in it with respect to cruelties against women, especially for married women.  Section 498A deals with certain things in terms of cruelty which reads as:

“Any willful conduct which is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health of the women.”

Section 498A of IPC was introduced in the year 1983 to protect married women from being subjective to cruelty by the husband or his relatives. A punishment extending to 3 years and fine has been prescribed.

The Hon’ble Supreme Court of India in its recent judgment of Social Action Forum for Manav Adhikari and Another v Union of India Ministry of Law and Justice and Others revisited the important issue relating to Section 498-A of the Indian Penal Code, 1860.

The Dowry Prohibition Act,1961:

The provision of the Dowry Prohibition Act mainly deals with issues relating to dowry and its related offenses in general. Dowry means the transfer of parental property at the time of marriage of their daughter. The social evil of Dowry was spread to a large extent.

The government formulated the Dowry Prohibition Act in the year 1961 so that there will be an eye of law in regulating such actions involving delivery and acceptance dowry.  Because of the Dowry, we have seen many cases of Domestic Violence in India. That’s why The Dowry Prohibition act 1961 played a major role to protect women from several domestic cases of abuse.

Case Laws

G.V. Siddaramesh vs. State of Karnataka on 5 February 2010

A conviction for offenses punishable under Section 4 of the Dowry Prohibition Act, 1961 and offense punishable under Section 3 of the Dowry Prohibition Act, 1961 from 5 years and a fine.

Still, Indian women could not be saved from the clutch of atrocities. So the Indian Parliament passed the Protection of women from Domestic Violence Act 2005. It was brought into force by the Indian government from 26 October 2006. The act provides for the first time in Indian law a definition of “domestic violence”, with this definition being broad and including not only physical violence, but also other forms of violence such as emotional, verbal, sexual, and economic abuse[8]. It is a civil law meant primarily for protection orders and not for meant to be enforced criminally.

Main Objective:

The main object of this act is to provide for more effective protection of the rights of women guaranteed under the Constitution who are victims of violence of any kind occurring within the family and for matters connected therewith or incidental thereto. This legislation is well placed in the Indian context and social scenario. It is clearly reflective of the mindset of the Indian men. The Protection of Women from Domestic Violence Act 2005 is important legislation to tackle the problem of domestic abuse against women. The act-in theory goes a long way towards the protection of women in a domestic setup. In view of some critics.

It provides a wide barrier to the self-respect and dignity of women. The act covers not only wife but also aged mothers, unmarried/divorced sisters, wives from illegitimate marriages, etc. Though, Protection of Women from Domestic Violence Act 2005 is complemented by the women activist and also the women in general as it was pro-women legislation the act met with the strong agitations from some corners of the society.

Existing lacunas:

There are however various issues left unsolved related to substantial and procedural or conceptual loopholes, hurdles that raised queries regarding effective implementation. Those issues can be grouped into categories. They are grouped in the study as follows:

  • Lack of evaluating and monitoring assessment of success and failure of previous social legislations.
  • This legislation is for women and anti Men (Monomaniac legislation)
  • Substantive lacunas
  • Loopholes in over-empowering the Authorities.
  • Too many rights and reliefs without practical assessment[9].

Of course, there may be shortcomings of those legislations and provisions in the Constitution. We can still expect many positive legal aspects to give due security to women.

Sandhya Wankhede vs Manoj Bhimrao Wankhade

In this case, Supreme Court put to rest the issue holding that the provision to Section 2(q) does not exclude female relatives of the husband or male partner from the ambit of a complaint that can be made under the provisions of the Domestic Violence Act. Therefore, complaints are not just maintainable against the adult male person but also the female relative of such an adult male.

Conclusion

In Conclusion, it may be stated that male or female, boys or girls, old or children, educated or illiterate, rural or urban, all are the components of our society. To establish a clean and just society, everybody must be effortful. The view, outlook, thought, social taboo of each and every member of the society must be changed. Each and every individual of society must be cooperative with law enforcement agencies.

Moreover, every type of violence at home against women must be brought into the light. They must be brought into the notice of Law enforcement agencies. This will enable the legal provisions able to give justice to the victim. On the other hand, Social organization, Student bodies, Lawyers  Associations, various Non-Government Organizations (NGOs) must come forward to educate people of the concept of equality, dignity, self-respect enshrined in our Constitution. Merely enacting the law and criticizing the Government and Law enforcement agencies would not help to reform the age-old belief, thought, mindset and tradition, and customs[10].

At last but not the least, women can be saved from domestic violence by upgrading them economically, educationally, and socially.


Author:

anupama devi Anupama Devi | Gauhati University, Guwahati, Assam


References

[1] https://findlaw.com accessed on 15th July 2020

[2] https://www.helpguide.org accessed on 15th July 2020

[3] Ibid

[4] https://guides.library.cornell.edu accessed on 15th June 2020

[7] https://www.britannica.com accessed on 17th July 2020

[10] https://shodhganga.inflibnet.ac.in accessed on 18th July 2020

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