Domestic Violence Laws in India

Introduction

Domestic Violence is a crime that Indian women are commonly made aware of, especially at the time of marriage. It is commonly understood as violent behavior meted out to a person in the domestic sphere. The term is broad enough to include all kids of violence- physical, psychological, sexual, economic, or verbal etc.
The first thing that a woman who has been subjected to domestic violence should do is take legal recourse and report. The action is a crime and as it is also popularly said that tolerance of torturous behaviour only perpetrates such tendencies further. It is therefore necessary to acquaint themselves with the remedies available to victims of domestic violence under law.
This article helps you to get acquainted with various domestic violence laws in India.

Salient Features of Domestic Violence Act, 2005

Though there a few provisions under the Indian Penal Code, 1860 for violence in general, with the drastic increase in cases of torture meted out to women in the household sphere, the Parliament of India thought it fit to enact a special legislation namely the Protection of Women from Domestic Violence Act, 2005. The provisions of the Act clearly specify three things:

1. 1. 1. What would constitute domestic violence,
      2. Who all are included within the purview of ‘domestic’ arena, and
      3. The rights which a woman who has been subjected to domestic violence is entitled to.

 

The Act seeks to protect any woman who has been aggrieved in a domestic relation. It defines domestic relation under Section 2(f) as “any relationship between two persons who live or have at any point of time lived together in a shared household, and who 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”. This is salutary because it seeks to bring within its purview any and every sort of woman regardless of the domestic setting in which she lives. In the landmark judgement of D. Veluswamy v. D. Patchaiammal, the Supreme Court even allowed a woman who had been living in a live-in relation with her partner, to file a complaint of domestic violence against him. However, some of the factors which the court looked at before allowing the application was that the couple was of marriageable age, he was living as husband and wife in front of the world etc. This judgement has been welcomed by many as it reflects that the intention was to give as wide a construction as was possible for the word, ‘domestic relation’.

Section 3 of the Act is the charging section which explains the meaning of domestic violence. The expression ‘domestic violence’ includes harm or injury to health, safety, life, limb, or abuse which may be either physical, sexual, verbal or economic. It furthers goes on to explain that any act or omission which has the effect of endangering the person and to coerce her to meet any unlawful demand which also includes making her part with any property or valuable security of hers. Lastly, even threatening to commit any of the above actions amounts to committing an act of domestic violence. Even a single act of domestic violence is enough to constitute the offence and the victim need not prove continuity of the offence.

This Act is laudable as the aggrieved woman is not the only woman who is entitled to file a complaint. This means that even a person who has information of any act of domestic violence being committed on any woman also has the locus standi to register a complaint before the designated Protection Officer for that area.

The act of domestic violence is criminal in nature and the offence is cognizable and non-bailable. The proceedings take place before a Magistrate who is empowered to decide the matter and pass the sentence of either imprisonment up to one year or a fine of Rs. 20,000. Such an order for punishment can even be passed ex-parte if the magistrate is prima facie satisfied of the guilt of the accused.

However, punishment of the wrongdoer is not the sole purpose of this Act. The Act is also replete with provisions to ensure the true and complete restoration of the woman. The woman can avail monetary reliefs in the form of compensation at any point of the hearing. Moreover, in case the woman is apprehensive about the safety of any of her children, she may even plead to the Magistrate during the proceedings to grant interim custody to her.

Lastly, if the woman wishes to continue staying in her current place of residence, the Magistrate is also empowered to pass an order restraining the husband or any of his relatives from dispossessing the woman from any of her possessions. She is entitled to a right in the shared household property and therefore the family members cannot refuse to keep her any longer.

Criticism of the Act

One of the major criticisms meted out to the Protection of Women from Domestic Violence Act, 2005 is that it is not gender-neutral and protects only women. Of late, several instances of domestic violence being carried out on men have also come to light. However, the only legal recourse that men who are victims of domestic violence have is to file a complaint under the Indian Penal Code, 1860.

This can be looked at as discriminatory by some people and there have often been suggestions of making the law gender neutral by bringing about an amendment. What is even more saddening is that even the provision under the Indian Peal Code, 1860 providing for cruelty, specifically protects only women and hence is not gender neutral. This leaves male victims with no recourse but to approach the Court under the other general provisions of ‘assault’, ‘battery’ or ‘grievous’ hurt. However, the downside of that is that firstly, the punishments prescribed for general crimes against persons, for example, ‘battery’, ‘assault’ and ‘grievous hurt’ are less grave compared to that prescribed for cruelty on women under Section 498-A of the IPC, 1860 and secondly that while general offences under the penal law cover only physical harassment, the specific law for domestic violence on women is broad enough to even cover emotional or psychological harassment.

Criminal Provisions for Domestic Violence on Women

Cruelty

Section 498A of the Indian Penal Code which provides for cruelty on women reads as under:

“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:

(a) any wilful 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 life, limb or health (whether mental or physical) of the woman; or

(b) 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 or is on account of failure by her or any person related to her to meet such demand.”

 

Presumption in cases of Abetment to Suicide of a Woman

Moreover, even under Section 113-A of the Indian Evidence Act, 1860, when a charge of abetment to suicide of a woman within 7 years of her marriage, the Court is allowed to make the resumption that the same was a result of cruelty meted out to her by her husband or his relatives. The provision also makes a reference to Section 498-A of the IPC as it provides that cruelty shall have the same meaning as afforded to it under the IPC. When the court makes such a presumption on the basis of preliminary evidence, the burden falls on the prosecution to rebut this presumption and prove to the satisfaction that the husband or his relatives are not guilty.

Dowry Death | Domestic Violence laws in India

A similar provision also exists in order to protect women who have been subjected to violence on account of payment non-payment of dowry to satisfaction of the husband or his family members. Section 304B of the Indian Penal Code, 1860provides that when a woman dies within 7 years of her marriage due to unnatural circumstances, and it is established that soon before her death she was subjected to cruelty by her husband or his relatives in relation to the payment of dowry, it shall be called dowry death. Dowry death is a heinous offense punishable with a minimum of seven years of imprisonment which may even extend to life imprisonment.

Compounding the Offence of Domestic Violence

As mentioned earlier, the commission of domestic violence is a criminal offense. Section 320 of the Code of Criminal Procedure, 1973 provides for compounding of certain offences. Compounding is a process by which the accused admits to his guilt and agrees to settle with the victim out of court. Though this opportunity is not afforded to criminals who are accused of having committed heinous offences, it is available to those accused of less grave offences.

Unfortunately, neither the offence of domestic violence under the Domestic Violence Act, 2005 nor the offence of cruelty under section 498-A of the IPA are enlisted in the list of compoundable offences under section 320 of the Code of Criminal Procedure, 1973.   However, the Uttarakhand High Court in the case of Asish Makhijani v. State of Uttarakhandhas recognised that since the offence is personal in nature, it is not a crime against the world at large and therefore, the accused should have the right to compound. The Court therefore exercised its inherent jurisdiction under Section 482 of the Code of Criminal Procedure, 1973, to allow the compounding application of the accused. Therefore, though not a compoundable offence under the letter of law, it has been made one by the Courts under their inherent powers’ jurisdiction.

Defences Which may be Availed by the Accused Against Whom an Application for Domestic Violence has Been Made

The following defenses are available to a person against whom a complaint of domestic violence has been filed before the concerned Magistrate:

1. 1. That the action was done in an act of self-defense as the abuse has been initiated by the woman herself.
   2. That the woman is lying and taking unfair advantage and misusing the law. This defence can be accepted if the woman is unable to bring forth any satisfactory evidence to prove beyond reasonable doubt that the actions alleged have actually been committed.
   3. That the woman is suffering from insanity and therefore her allegations cannot be trusted.

RCIC’s Experience in Handling Matters of Domestic Violence laws in India

Our firm, Ricky Chopra International Counsel (RCIC) has some of the best litigation and domestic violence attorneys in India. They are well experienced in their field and have much expertise in handling matters of domestic violence. If you are a victim and wish to seek legal assistance, our team will guide you through the entire procedure, right from filing the complaint to proving the charges in court. In case you wish to compound the offense and enter into a settlement, we shall also assist you in negotiating and drafting the settlement agreement.

If you have been falsely accused in a case of domestic violence, our lawyers will be the preferred choice for defending you or enabling the compounding of the offense. Even if you have been convicted by the magistrate’s court and wish to prefer an appeal, you may approach us. Our team has prior experience of appearing before the sessions court, the High Court as well as the Supreme Court.

The firm of Ricky Chopra International Counsels has one of the best Divorce lawyers in Delhi, Mumbai, Chandigarh & Gurgaon.

Conclusion – Domestic Violence Laws in India

Domestic violence is not just a legal, but also a major social issue in our society today. Moreover, cases over the past have shown that it is prevalent across all the strata of the society. It is committed by educated and uneducated people alike, and happens across India in both urban as well as rural areas. Only the form of violence differs.

It is therefore necessary that as responsible citizens of the society, we increase awareness regarding the issue. The crime of domestic violence may be mitigated only if awareness regarding this is also included in the curriculum of education for children in the senior secondary classes.

Though you can find and know all about domestic violence laws in India but it is always suggested to take appropriate legal help.