Domestic Violence against Women

Domestic violence is wilful intimidation, physical assault, sexual assault, and/or other abusive behaviour within the home. Violence against women has been prevalent in our society since time immemorial.

Domestic violence includes violence against women like wife-beating, burnt or driven to suicide. Regrettably, domestic violence against women has been considered as the most common and the fastest growing crime in India, both rural and urban areas, making us stop and ponder whether we are progressing or not.

Domestic violence is of various forms such as physical abuse, verbal and emotional abuse, sexual and economic abuse. Some women get tortured for dowry, some for a male child and some simply become victims of alcoholic spouses or male members of the family. It is something that has long been accepted that happens to women.

Laws in place to fight it:

To combat this grave situation, rampant in our society, in 1983, domestic violence was finally recognized as a criminal offence by the introduction of section 498A into the Indian Penal Code. This section was added to deal with the cruelty by a husband or his family towards a married woman, Section 498A covers dowry-related tortures and is punishable with imprisonment for a term which may extend to 3 years and the offender shall also be liable to fine. Section 498A is a non-bailable, non-compoundable and cognizable offence.

The Indian Penal Code also addresses dowry deaths in section 304-B, the Indian Penal Code. If a woman dies of "unnatural causes" within seven years of marriage and has been harassed for dowry before her death, the Courts will assume that it is a case of dowry death. Whoever is found guilty of dowry death shall be punished with imprisonment for a term which shall not be less than 7 years but which may extend to imprisonment for life.

Thereafter, to tighten the noose the Indian Government passed the Protection of Women from Domestic Violence Act in 2005 for more effective protection of the rights of women, who are victims of violence. The Protection of Women from Domestic Violence Act is available to a woman who is, or has been, in a domestic relationship with the respondent and who alleges to have been subject to any act of domestic violence by the respondent. Widening the scope, the Act defines ‘domestic relationship’ as 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 like marriage, adoption or are family members living together as a joint family.

The procedure for obtaining orders/reliefs under the Act is as follows:

Section 12 – Application to Magistrate

1. Under section 12(1), an aggrieved person or a protection officer or any other person on behalf of the aggrieved person may present an application to the Magistrate seeking one or more reliefs.
2. The Magistrate shall thereafter fix the first date of hearing, which shall not ordinarily be beyond 3 days from the date of receipt of the application by the court.
3. The magistrate shall endeavour to dispose of every application within 60 days from the date of its first hearing.

Section 13 – Service of Notice

Notice of the date of hearing shall be given by the Magistrate to the Protection Officer, who shall get it served by such means as may be prescribed on the respondent and any other person, as directed by the Magistrate within a maximum period of 2 days or such further reasonable time as may be allowed by the Magistrate from the date of its receipt.

Section 14 – Counselling

The Magistrate may, at any stage of the proceedings, 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.

Notwithstanding anything contained in any other law for the time being in force, the act ensures the women’s right to secure housing, i.e., right to reside in the matrimonial or shared household irrespective of the fact whether or not she has any right title or beneficial interest in the same.

The Magistrate after hearing both the parties and on being prima facie satisfied that domestic violence has taken place or is likely to take place, pass relief to the victim by the way of protection orders, preventing the abuser to commit an act of domestic violence.

While disposing of an application, the Magistrate may pass a residence order,

1. restraining the respondent from dispossessing or in any other manner disturbing the possession of the aggrieved person from the shared household, whether or not the respondent has a legal or equitable interest in the shared household,
2. directing the respondent to remove himself from the shared household
3. restraining the respondent or any of his relatives from entering any portion of the shared household in which the aggrieved person resides, etc.

While disposing of an application, the Magistrate may direct the respondent to pay monetary relief to meet the expenses incurred and losses suffered by the aggrieved person and any child of the aggrieved person as a result of the domestic violence.

Jurisdiction

The application seeking relief can be filed before the court of Judicial Magistrate of the first class or the Metropolitan Magistrate, as the case may be, within the local limits of which:

1. the person aggrieved permanently or temporarily resides or carries on business or is employed; or
2. the respondent resides or carries on business or is employed; or
3. the cause of action has arisen.

With the above stringent and women-friendly laws in force, we can hope that we can curb the menace of domestic violence and give reputable status to women in the society that they deserve. The proceedings under the Domestic Violence Act are civil, till the protection order is passed and thereafter the proceedings are criminal.

As of late, the Domestic Violence Act is also being misused. To overcome the above situation, the Hon’ble Supreme Court and High Courts have interpreted that a  daughter-in-law cannot assert her rights, if any, in the self-acquired property of her parents-in-law wherein her husband has no right, title or interest. She cannot continue to live in such a house of her parents-in-law against their consent and wishes.

Further, it has been held that the provisions under the D.V. Act can be invoked only when the domestic relationship is in existence. Where the domestic relationship ceased, the provisions under the D.V. Act cannot be invoked.