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Domestic Violence

The emergence of Domestic Violence in India

The women in the Vedic period enjoyed equal rights and opportunities with men. Itis true that during such a period of time women enjoyed more power and authority than men. However, after that period the position of women deteriorated drastically. And such has not stopped yet. With every year the position of women levels down. They were housebound and been treated like an object of sexual gratification and nothing more than that.

Women were not allowed to make any chooses, not even for themselves. They were just been ordered and they have only one option to go for, that is to follow it. Non-compliance with such an order led to brutality against them.  Sati system is a very prominent example of such. Women were married at a very young age with a man comparably older than her. When the husband dies the wife puts herself in the same fire of husband’s pyre and burn to death. Initially, it was a voluntary act later it became a forced practice and there was no option of backing off. Even if such acts were stopped with the passage of time, the situation of women never developed. Earlier it was committed in public, now such is done in private.

While discussing domestic violence in India there are certain myths about it that are present. They are:

  1. Domestic Violence occurs only in lower class/working-class families and not in the upper class.
  2. Domestic violence occurs in families where the husband is an alcoholic.
  3. Men who are violent towards there partner comes from violent family.
  4. No other person should interfere in domestic violence between a man and his wife.
  5. Women who tolerate violence are responsible for such violence as they should have left such violent husbands.

Such statements are not true however, it is believed and been put faith on it. Due to such a mindset, it is very difficult to eradicate the offense of domestic violence from India. And for that one has to know the true facts regarding domestic violence.

True Facts:
  1. Domestic violence can happen in any household. It is not limited to the working-class only but also to families in the middle-class and upper class as well.
  2. It is not in any way necessary that domestic violence is committed by a husband who is an alcoholic.
  3. Men coming from non-violent families can also commit domestic violence.
  4. Women who tolerate violence are not responsible for such a heinous act. For the sake of the household, she tries to keep trying to be part of such a family. Such does not make her responsible for domestic violence. Leaving a household is difficult and it should be understood that way.

The offense of domestic violence holds a prominent presence in India and is suffered by women not only in today’s time but it was there from long back. Women have repeatedly faced setbacks due to the discrimination and brutality against them. Rules and regulations have been created for safeguarding women against the offense of violence against them. However, with an increase in the number of cases of domestic violence and due to the need for better adjudication for such heinous acts a separate Act was introduced to deal with the crime of domestic violence. Thus, the Protection of Women from Domestic Violence Act, 2005 came into effect on the date 26th October 2005.

Protection of Women from Domestic Violence Act, 2005 deals only with matters of domestic violence committed against women. It has come out to be effective legal protection provided to women in a fast-track process.

What is Domestic Violence?

Indian Penal Code and Domestic Violence

SECTION 498A.  HUSBAND OR RELATIVE OF HUSBAND OF A WOMAN SUBJECTING HER TO CRUELTY.—

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.

Explanation: For the purpose of this section, ‘cruelty’ means-

  1. Any willful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to the life, limb, or health (whether mental or physical) of the woman; or
  2. Harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security is on account of failure by her or any person related to her to meet such demand
Comment:

Essential Ingredients of Section 498A:

  • The woman must be married;
  • She must be subjected to cruelty or harassment; and
  • Such cruelty or harassment must have been subject to cruelty either by the husband of the woman or by the relative of her husband.
  1. The woman must be married

The woman should be married to avail of the protection under this section. If the woman is not married then this section cannot be made effective on a matter. Even if there is cruelty inflicted on a woman, if the woman is not married, she can opt to safeguard herself on any other provision but not under Section 498A if the I.P.C.

  1. Woman subjected to cruelty or harassment

for the offense of cruelty to be said to have been committed such has to happen against the woman by her husband or a relative of such husband.

It is further to be understood that the cruelty has to take place in the near place and not long back ago.

In Basant Kaur v/s State (NCT) Delhi, 2003 Cri LJ 803 (Del), it was held that incidents or cruelty or harassment that has occurred decades ago cannot be allowed to become the reason for punishment under this act.

  1. Cruelty by Husband of the woman or the relative of the husband

 The person who committed cruelty against the woman should be the husband or the relative of the husband to come within the purview of this provision. The onus is on the prosecution to prove the same that cruelty has taken place. Such cruelty has been committed by the husband or the relative of the husband and such an act of cruelty has been committed against the wife. If such ingredients are been proved by the prosecution only then the offense of cruelty is said to have taken place. Further, such cruelty should be such that it drives the woman to commit suicide or is sufficient to cause grave injury to the wife. In the explanation part of the section, it is been discussed that harassment of the woman by the husband or the relative of the husband for the demand of any property or valuable security is also considered cruelty.

 

TIME PERIOD WITHIN WHICH A CASE CAN BE FILED

 A case under Section 498A of IPC can be filed within 3 years from the date of the last incident of cruelty inflicted on the woman by her husband or any relative of such husband. The offense of cruelty if alleged to have taken place decades earlier cannot be brought within the purview of this section.

Thus, it can be understood that to prove offense under this section the complainant has to prove that he is married. That there is an offense of cruelty. Such offense of cruelty has been committed by her husband or relative of such husband and that such offense of cruelty and harassment took place within 3 years from the date of filing of the case.Although the provision does not clearly mention the time period. However, precedents establish that the complaint is to be filed within 3 years of the happening of the offense.

In KamleshKalra&Ors. V/s ShilpikaKalra, Criminal Appeal No. 416 of 2020, it was held by the Supreme Court of India that the First Information Report (FIR) is to be filed by the wife within 3 years from the date of the occurrence of the incident of cruelty or harassment to be taken under the purview under this section.

SECTION 304B.DOWRY DEATH.—

(1) Where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or har­assment by her husband or any relative of her husband for, or in connection with, any demand for dowry, such death shall be called “dowry death”, and such husband or relative shall be deemed to have caused her death. Explanation.—For the purpose of this sub-section, “dowry” shall have the same meaning as in section 2 of the Dowry Prohibition Act, 1961 (28 of 1961).

(2) Whoever commits dowry death shall be punished with imprison­ment for a term which shall not be less than seven years but which may extend to imprisonment for life.

Comment:

Essential Ingredients of Section 304-B:-

  1. The death of the woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances.
  2. Such death of the woman occurs within 7 years of her marriage
  3. Soon before her death, she was subjected to cruelty or harassment.
  4. Cruelty or harassment committed by her husband or any relative of her husband.
  5. Such is committed in connection with, any demand for dowry.
  1. Burns Or Bodily Injury Or Occurs Otherwise Than Under Normal Circumstances

 The death of the woman should be caused. Such death of the woman should have caused due to the burns, bodily injury, or occurs otherwise than under normal circumstances. The inclusion of the phrase ‘Otherwise than under normal circumstances’ provides a vast area regarding the offense caused against women.

  1. Death Of The Woman Occurs Within 7 Years Of Her Marriage

 To be in the purview of this provision, there should be the death of the victim and such death should occur within 7 years of her marriage. If such occurs after such period then it will not be considered as an offense under Section 304-B.

  1. Soon Before Her Death, She Was Subjected To Cruelty Or Harassment

 The cruelty committed against her should be soon before the death and not long back ago. The reason behind putting such a statement is to relate death with the offense of cruelty. If cruelty and death are not related then it will not be adjudicated under this section. A married woman who dies within 7 years will not lead to domestic violence in itself if no cruelty is proved.

In Keshab Raj V/s. In the state of Punjab, 2000 Cr LJ 2993, the Orissa High Court held that where there was a history of beating to te wife for dowry. However, the couple later on reconciled and started living together. After a fortnight the parents of the woman were informed that she died. During that living of such fortnight with the husband, there was no complaint of cruelty or harassment for dowry. The court held that section of 304-B is not attractive because there was no cruelty ‘soon before death’.

  1. Cruelty Or Harassment Committed By Her Husband Or Any Relative Of Her Husband

 To attract Section 304-B of the Indian Penal code,1860 there should be cruelty or harassment committed by the husband or the relative of the husband and no one else. It is to be proved without reasonable doubt that such cruelty is committed, such is done ‘soon before the death’, in respect to demand of dowry and such is committed by the husband or relative of the husband.

  1. Committed In Connection With, Any Demand For Dowry

 The death of the woman should happen due to the demand for dowry. It is to be proved that there is a direct connection between the demand for dowry and the death of the woman.

In K. Prema S. Rao V/s YadlaSrinivasm Rao, AIR 2003 SC 11, it was held in the present case that where the father gave land to his daughter. And the husband committed cruelty so as to transfer such property in his name. Such conduct could not be said to be “in connection with any alleged dowry demand” The husband was held not guilty.

Protection of women from Domestic Violence Act, 2005

Section 3.

Definition of domestic violence — For the purposes of this Act, any act, omission or commission, or conduct of the respondent shall constitute domestic violence in case it—

(a) harms or injures or endangers the health, safety, life, limb or well‑being, whether mental or physical, of the aggrieved person or tends to do so and includes causing physical abuse, sexual abuse, verbal and emotional abuse, and economic abuse; or

(b) harasses, harms, injures, or endangers the aggrieved person with a view to coerce her or any other person related to her to meet any unlawful demand for any dowry or other property or valuable security; or

(c) has the effect of threatening the aggrieved person or any person related to her by any conduct mentioned in clause (a) or clause (b); or

(d) otherwise injures or causes harm, whether physical or mental, to the aggrieved person.

 

Comment:

 Respondent

 The important difference between the protection provided by IPC and the D.V. Act is that it is former focuses cruelty against the wife only and such is committed by either husband or any relative of the husband. This makes the working of the provision very limited. However, it is removed in the D.V. Act, 2005.

According to Section 2(q) of D. V. Act, 2005 ‘Respondent’ means any adult male person who is, or has been, in a domestic relationship with the aggrieved person and against whom the aggrieved person has sought any relief under this Act: Provided that an aggrieved wife or female living in a relationship in the nature of a marriage may also file a complaint against a relative of the husband or the male partner.

 

Aggrieved Person

According to Section 2(a) of the D.V. Act, 2005 “aggrieved person” means any woman who is, or has been, in a domestic relationship with the respondent and who alleges to have been Subjected to any act of domestic violence by the respondent;

 An act, omission, commission, or conduct of the respondent

There should be an act, omission, commission, or conduct on the part of the respondent which leads to domestic violence. Such act, omission, commission, or conduct should be as mentioned under Section 3 of the D.V. Act.

 

Harm, Or Injuries Or Endangers The Health, Safety, Life, Limb Or Well-Being (Physical or mental)

An act by the respondent can be said to be an act of domestic violence only if it falls under this category. There should be harm, injuries, or endangerment of the health, safety, life, limb, or well-being of the respondent. If such is not proved then no case will form under this act unless it falls under any other category of the following provision.

 

Causing Physical Abuse, Sexual Abuse, Verbal And Emotional Abuse And Economic Abuse

There should be the presence of abuse committed by the respondent on the aggrieved party. The types of abuse are explained in detail in the following article.

In the case LalitaToppo V/s State of Jharkhand and Anr., the bench stated that Section 3 (a) of the D.V. Act, 2005, which defines the term “domestic violence” which also includes “economic abuse” as domestic violence. The court also stated that under this section of the D.V. Act the wife and even the live-in partner would be entitled to the relief which is more than what is provided in 125 Cr. P.C.

 

Harasses, Harms, Injures Or Endangers The Aggrieved Person With A View To Coerce Her Or Any Other Person Related To Her

 If the husband does any act which includes harassment, harm, injuries or endangers the aggrieved person or someone related to her for the demand of dowry or valuable security then such will lead to domestic violence. This section has clearly mentioned that no physical harm is necessary to prove domestic violence. The demand for dowry or valuable security leads to mental harassment that is equal to domestic violence.

 

Effect Of Threatening The Aggrieved Person Or Any Person Related To Her

If there is any type of threatening committed by the respondent on the aggrieved person then that will lead to domestic violence. Such threatening does not necessarily have to be on the aggrieved person. If such an act of threatening is committed even on a person who is related to her which will lead to mental frustration that will result in commission domestic violence against the aggrieved person.

 

Burden of Proof

The burden of proof to prove the existence of an offense under the D.V. Act, 2005 the aggrieved party has to prove the allegations put by her.

According to Section 101 of the Indian Evidence Act, 1872, the burden of proof is on the person who alleges that a certain person has committed the offense.

Example- A desires a Court to give judgment that B shall be punished for a crime which A says B has committed. A must prove that B has committed the crime.

In Kamlesh Devi V/s Jaipal and Ors., it was held that mere allegations are not sufficient to bring a case under D.V. Act.

 

Types of Domestic Violence

Types of Domestic Violence according to The Protection Of Woman From Domestic Violence Act, 2005-

 

  • Physical and Sexual Abuse

Physical abuse is the most unmistakable type of abusive behavior. It includes the utilization of power against the person in question, causing injury such as a punch or a kick, wounding, slapping, etc.

 

  • Verbal Abuse

Verbal abuse involves the use of filthy words which causes mental agony and ultimately results in mental harassment and leads to cruelty. If the husband or any other person in the shared household commits the act of verbal abuse against the wife then it results in domestic violence. In the case of 498A and 304-B of The Indian Penal Code such act of domestic violence is to be committed by the husband or relative of the husband on the wife. However, according to D.V. Act, 2005 such an act of violence can be committed by any person on another person in the shared household.

  • Emotional Abuse

 Emotional abuse involves the use of emotional blackmailing or targeting the mental well-being of the victim/aggrieved party. The act of emotional abuse leads to the act of cruelty.

  •  Mental Abuse

 Mental abuse is somewhat similar to emotional abuse. When the mind of the victim is affected by the acts of the husband so much that it gives rise to mental frustration then such an act is called mental abuse.

  • Economic Abuse

 Economic abuse lead to the creation of monetary frustration to that of the wife. If the husband repeatedly demands valuables/money, restricting allowance, etc from that of the wife then such is considered to be economic abuse.

 

 DIFFERENCE BETWEEN SECTION 498A OF I.P.C AND D.V. ACT, 2005

           SECTION 498 A OF I.P.C D.V. ACT

 

1.      498A of I.P.C. deals with cruelty or harassment committed by the husband or his relative on the wife. 1.      D.V. Act deals with cruelty or harassment against any person by any person
2.      The area within which the section is effective is limited to the crime committed by a husband or relative on a wife. 2. It included a wider area in which the present act works. It involves cruelty, harassment committed against one person by another who is living in a shared household are related by consanguinity, marriage, or through a relationship in the nature of marriage, adoption or are family members living together.
3.      It is in respect of demand of dowry from the woman by her husband or relative of husband. 3. It does not relate to the demand for dowry.
4.      Section, 498A court punishes for domestic violence in terms of imprisonment up to 3 years and a fine. 4. Domestic Violence Act, Court, can grant the monetary compensation, custody of the child, monetary relief, residence order, and protection to a woman and can punish the protection officer, and the respondent for breach of duty and protection order respectively with imprisonment up to one year, or with fine up to twenty thousand rupees, or with both.

 

 DIFFERENCE BETWEEN SECTION 304-B OF I.P.C. AND D.V. ACT, 2005 
SECTION 304-B OF I.P.C. D.V. ACT, 2005
1.      The death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances. 1.      The cause of death of the aggrieved party is not necessary.
2.      Cruelty or har­assment by her husband or any relative of her husband. 2. D.V. Act deals with cruelty or harassment committed against one person by another who is living in a shared household are related by consanguinity, marriage, or through a relationship in the nature of marriage, adoption or are family members living together.
3.      Death is caused to the woman in respect of the demand for dowry. 3.It does not relate to the demand for dowry.
4.      Punishment for a term which shall not be less than seven years but which may extend to imprisonment for life 4.Domestic Violence Act, Court, can grant the monetary compensation, custody of the child, monetary relief, residence order, and protection to a woman and can punish the protection officer, and the respondent for breach of duty and protection order respectively with imprisonment up to one year, or with fine up to twenty thousand rupees, or with both

 

Is offense under D.V.Act, 2005, Bailable?

The offense of domestic violence under the D.V. Act, 2005 is a non-cognizable and non-bailable offense.

According to Section 2(l) of Criminal Procedure Code, 1973 “non-cognizable offense” means an offense for which, and “non-cognizable case” means a case in which, a police officer has no authority to arrest without a warrant.

Section 2(a) of Cr.P.C. states that bailable offense” means an offense which is shown as bailable in the First Schedule, or which is made bailable by any other law for the time being in force; and” non-bailable offense” means any other offense.

 

How long does a D.V. Act, 2005 Case takes to complete?

 The Protection Of Woman From Domestic Violence Act, 2005 ensures a speedy trial. Under Section 12(5) of the D.V. Act,2005, the Metropolitan Magistrate shall dispose of every domestic violence case within sixty days from the dates of its first hearing.

What is Interim maintenance under D.V. Act, 2005

Interim maintenance is maintenance that a husband has to pay to the wife for her upkeep before a final decision is passed by the court. When the wife is unable to take care of herself and is dependent for her well-being on her husband. The husband has to pay a certain amount fixed by the court to the wife.

Section 23 of the D.V. Act, deals with interim maintenance. An application for the same is to be filed before the courts after which the court will pass its order and both the parties to the case have to follow such order.

 
What is the Procedure of a case under D.V Act, 2005

 Procedure for a case filed under D.V. Act, 2005:

  1. Complaint u/S 12 of The Protection of Women From Domestic Violence Act, 2005 is been filed.
  2. The court takes cognizance and issues summons to the respondent and protection officer for appearance before the Court with DIR (Domestic violence Report).
  3. The appearance of Respondent before the court and filing of reply by the respondent.
  4. Replication filed by the complainant (optional).
  5. The case is referred to mediation if it can be settled. If settled, then the case is dismissed. If not then the Court move forward with the further proceedings.
  6. Arguments on the application of interim maintenance are heard from both sides of the parties.
  7. Order is passed on the application of interim maintenance.
  8. An appeal U/S 29 of D.V. Act,2005, can be filed by the aggrieved party against the interim application within 30 days.
  9. Issued framed by the Court.
  10. Evidence to be filed by the complainant by way of affidavit of the complainant and witnesses.
  11. Cross-examination of the complainant and the witnesses presented by the complainant.
  12. Cross-examination of the respondent and the witnesses presented by the respondent.
  13. Argument.
  14. Judgment.
 CONCLUSION

 The Protection Of Women From Domestic Violence Act, 2005 is a very useful development done in the legal system for the benefit of women. The situation of women before this act was miserable. The litigations used to proceed for years without any advancement in those cases. However, the formation of this act specifically formed to safeguard women from domestic violence is very beneficial. As the act provides a confined period within which a case under the offense of domestic violence is to be disposed of the cases are disposed of quickly. Speedy Trials are the basic advantage provided by this act which saves the aggrieved party from bing more aggrieved.

It is, nonetheless, believed that it is too soon to anticipate the handiness of these enactments to its objective recipients and the general public overall. It should be seen whether the basic requirements of the Act as guaranteed is reaching the victim or not. The obligation of usage lies in the possession of the executive which will be the real scale for estimating the viability of this Act.

Contact the Best Domestic Violence Lawyers, ADR Law firm in Delhi today,  LEGALLANDS LLP will help you with all the matters relating to FEMAFDIADRCorporate & CommercialFamily LawIPR, International Trade & TaxOther Advisory Services and Business Setup advisory in India and Abroad. Contact today at +91 11 46045777 or [email protected]

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