SYNOPSIS

ON

Domestic violence against Women in India A socio legal study

Introduction
Domestic violence against women is the ugliest face of attitude towards women in India.
Some family sociologists and historians have perceived family as an arena of love, affection,
gentleness and centre of solidarity and warmth. They are immune to the stark realities of
infanticide of girls, anguish of widows, Sati custom, wife battering and child abuse and the
recent phenomena of dowry deaths and destruction of an embryo of a female child. Whereas
some Sociologists see family as a centre of exploitation, assault and violence, ranging from
the punishment of children to slapping, hitting, homicidal assault by one member of family
on the other. Family violence is not a recent phenomenon. Surprisingly enough, how is it,
family researchers in India has not been attracted to this most vulnerable social problem.

The paucity of research on the intra-family violence can be traced to a number of factors. One
of these seems to be the social definition of family as non-violent unit. Family relations were
seen being regulated by mutual sympathy, affection, congeniality, love, respect and concern.
Generally, we tend to overlook the violence which occurs in the family or try to repress the
memory of it. The semisacred nature of family in our society has made the issue of family
violence a taboo to be researched.

Domestic violence perpetrated by partners and close family members on women has long
been matter of silent suffering within the four walls of the home. The phenomenon of
domestic violence against women has been identified primarily as a private concern. From
this perspective, violence is seen to a matter of individual responsibility, and the women is
perceived to be the one responsible for either adjusting more adequately to the situation as
dictated by cultural norms or developing an acceptable method of suffering silently. This
basic understanding of domestic violence as a personal issue has limited the extent to which
legal resolution to the problem has been actively pursued. Society has made the members of
the family and elites to believe that physical conflicts in the family is something other than
violence. Violence in the family has not emerged as a social problem because social
historians have not labelled it as a problem. The most important of all is social dependency of
women and children.

Their low status and dependence are responsible for not giving air to their victimization
particularly in the absence of alternative social support systems. The women were trained to
be ‘make children’, ‘dutiful wives’ and ‘affectionate mothers’. Kautilya, Manu and later
Smiriti writers demanded from the wife not only to merge her individuality with that of her
husband but also to accept her husband as god "Patiparmeswara" irrespective of the type of
treatment she receives1. Sati custom can be cited as an extreme case of exploitation and
family violence. The son was expected to be obedient to the dictates of his father without
even questioning its morality. The parents had absolute control over their children. The father
had the right to mortgage, sell and even kill his children.

Domestic violence against women is increasingly recognised as a major health and social
problem in India. Violence against women is widespread, deeply entrenched, silently borne,
and relatively impervious to women’s situation but male attitude uniformly justify wife -
beating and few would opt out of an abusive marriage.

There is a dearth of information on the magnitude and patterns of domestic violence against
women in India by way of community-based data. Facility based data from police, court,
hospital and NGO records - do exist, but remain scattered, poorly maintained and seldom
used “Women, who know the price of conflict so well, are also often better equipped than
men to prevent or resolve it. For generation women have served as peace educators, both in
their families and in their societies. They have been proved instrumental in building bridges
rather than walls. They have been crucial in preserving social order when communities have
collapsed. Place is inextricably linked to equality between women and men. To help ensure
that women and girls in conflict situations are protected; that perpetrators of violence against
women in conflict are brought to justice; and that women are able to take their rightful and
equal place at the decision making table in questions of peace and security".2

1
Manu Smriti edited by P.H. Pandya (Bombay: Gujrati Printing Press, 1913) III: 24-251. [Quoted by Neelam
Upadhyaya and Rekha Pandey in her "Women in India: Past and Present, First published, 1990, pp. 910].
2
Kofi A Annan, United Nations Secretary - General in his statement to the Security Council on 24 October
2000.
Laws - Persistent

By seeing such pathetic condition of women the awareness of the need to remove social
disabilities of women was created and women started their struggle to fight against all sorts
of social evils and social taboos alongside men. Various Legislative enactments were passed
for ameliorating the condition of Indian women and above all the constitution of India
guarantees the equality of sexes and discrimination against women in India under Article
14,15,16 of Constitution of India. But yet the distance between the legislative and executive
action for women are to be reduced. Indian women are the beneficiaries of these rights in the
same manner as Indian men.

Under Article 14 the constitution guarantees equality before law and equal protection of law
to all men and women within the territory of India. It also proclaims that a citizen on grounds
only of sex under Article 15(1) have equal rights. But the fact is that women in our country
continues to suffer despite the constitutional provisions for equality, social justice and
protection for women. In recent years all over the world, a considerable amount of attention
has been given to the problem of domestic violence and wife battering and new legal
procedures and new legal techniques have been developed to face this menace. In this regard
England has enacted Matrimonial Homes Act, 1967 which tackles the problem when on
marital breakdown the spouse who is excluded wants to Live in it, and the Domestic Violence
and Matrimonial Proceedings Act, 1976 and the domestic proceedings and Magistrates Court
Act, 1978, to accord protection to battered wives.

Ample Legislations and Law coupled with the mandate of the Indian constitution provide
adequate instruments for delivering gender specific justice. The Dowry Prohibition Act,
1961, and.the Suppression of Immoral Traffic in Women and Girls Act, 1956, The Maternity
Benefit Act, 1961, The Indecent Representation of Women (Prohibition) Act, 1986, are
enacted to protect the Rights of Women. Unfortunately, the wife beating continues despite
the abolition of the feudal rule that the husband has the privilege to beat his wife, ill - treat
her and do anything and everything with her. India, too, has recently amended its Penal Code,
Code of Criminal Procedure and Evidence Act to provide protection to her against what may
be called "Crimes against her personality"3.

The Indian Newspaper carry out news of some incidents where a married woman has been
murdered by her husband or in-laws because her parents could not satisfy their lust for

3
Smita Mishra, "Women: Speak up and Know your law" published in Times of India, 20.3.2001.
dowry, or where a married woman has been forced to commit suicide because of the act of
the cruelty and violence perpetrated against her4.

In the words of Despande, J: Such events show continuous persecution of the wives and cruel
treatment noted out to them by their husband and in-laws preceding such attempts to commit
such suicides or murders while these unfortunate women are living with the husbands during
the first few years of their marriage life. These first years are the years of adjustment and,
therefore, most of the difficulties arise in these years5.

Unfortunately such has been social conditions and have been the prejudices in the man’s
societythat even personal liberty guaranteed to her under Article 21 of the Constitution has no
meaning to her.27 Thus, where a wife leaves her husband on account of his ill - treatment,
cruelty and violence and goes to her parent’s home, the husbands have forcibly taken her
away and law’s arm has failed to provide protection to such women.28 In our country widow
re-marriages are raw, though the law allows it. Working women are discriminated against in
wages and other conditions of service.

The core of the matter is that an exploitative society cannot consent to emancipation of
women and will not implement legislation in favour of women even where public pressure
compels the promulgation of favourable laws. In the field of matrimonial and guardianship
law, the legislative and judicial processes have not been fair to the fairer sex. The battle for
an equal association between the sexes for achieving socially - directed goals is part of a war
by the weak against the strong, it is re-reading religion, re-writing literature and history,
rebuilding literature and history, re-building economics and politics and radicalizing sex
sociology. It is a grim battle, not won by stray queens and fortunate women of letters and
sciences. It is a massive campaign not carried on by sophisticated "her conventions" or gentle
ladies organizations.

Different Faces of Domestic Violence

4
Ibid
5
Domestic Violence Women (Prevention) Bill 1998.
Innumerable crimes are thus committed on the woman in the privacy of her home. Fathers
restricting their daughters from marrying the person they like, brother denying sisters
property rights, parents pushing back their daughters into unhappy relationships rather than
encouraging them to break loose. There is no social security existing for the woman either at
her natal home or at the matrimonial home. Even the woman who is thrown out on streets
faces abuse. Homes for destitute women and shelter homes are anything but that.

They are run like prisons with no freedom of movement. Sexual abuse is rampant, with
physical abuse thrown in. It includes denial of basic necessities and the additional emotional
black-mail where there are children concerned and the threat of dispossession from the
matrimonial home. It is generally denying the woman her rights as an individual Domestic
violence in India has many aspects: apart from violence between siblings, between the other
cohabits, abuse of children by parents and vice versa. Dowry related violence is a problem
unique to India. It cuts across all backgrounds - be it social, cultural, economic or religious. It
cuts across class, caste and ethnicity. Walking out on an unhappy marriage is an option from
a male perspective.

But for a woman there is complete absence of psychological or physical support structure in
such a eventuality. More often than not, she is simply abandoned or deserted with no means
of sustenance. If the woman braves all this and takes recourse to law, the due process of law
is itself a long drawn out torture and eventually in the court too, she is perceived as a home -
breaker and an offender. The innate gender biases is reflected in police negative attitudes
towards offences against women, resulting in refusal to register complaints or delay in
registering it or investigating and later resulting in acquittals or nominal punishments in case
of convictions. Above all the phenomenal legal fees.

The women find the system more cumbersome than supportive and hesitate to take recourse
to law in time of distress. As the woman, when she is domestically hurt, wants to go through
all legal process but she does not have so much money to go through. Rather than going
against domestic violences she accepts all violences affecting her mental and physical health.
Women in India usually do not own property. They stay in the shared household, and if
married, in her ‘matrimonial home’. This matrimonial home may be owned by husband or in
laws. When the relations come into play into this shared household or matrimonial home, the
home for victim becomes hell. The victim is more or less in a custodial condition and abused,
suffering the violence with no support from society, relatives or friends.
Under the Indian law, both criminal and civil, few provisions exist for the married woman to
address these issues. Special Marriage Act deals only with marriage and breakdown of
marriage. None of these offer any safeguard or right for the woman to live in peace and
harmony in the matrimonial home. This omission makes it easy to throw a woman out on the
street with or without dowry and coerce her into divorce and maintenance settlement. In the
eighties, two important acts that brought domestic violence out of the private closet into the
public domain were enacted.

The first of these was the introduction of Section 498-A in the Indian Penal Code through
1980 IPC brought in Criminal Law (Amendment) Act, 1986, which criminalised violence in
marriage, both physical and mental, inflicted on women. The second was new provision of
Section 304-B IPC, and Dowry Prohibition (Amendment) Act, 1986 read with Section 113-B
of the Indian Evidence Act, 1872 creating a new offence of dowry death.36 But as like all
other acts Section 498-A of the IPC has not really come to rescue of women though the
police, judiciary and men think otherwise.

Section 498-A IPC has further limitations and does not take into account the day-to-day
violence in the household. Mental harassment is open to subjective interpretation and as far
as physical cruelty is concerned; ‘visible’ evidence is called for! In the absence of burns and
bruises and a black and blue marks, it becomes impossible to lodge a complaint. Irrespective
of that many crocodile tears have been shed by men’s group to flood the ganga over the
harshness of this Act.37 An issues that comes within the marriage, such as marital rape or
child sexual abuse. There is lacuna in the legal system, which needs looking into While the
history of legislation in India does show that laws have been amended numerous times, they
do not seem to have served any purpose yet.

These acts have ben piecemeal amendments and innovative interpretations introduce a
perception of equality to women without bringing about structural changes in the law.

This is because the judiciary and the legal machinery have dragged their collective heels in
recognising the problems of violence that takes place within the four walls of supposedly
secure home. India, unlike the west does not have a battered wife’s movement. This does not
mean that Indian homes are secure and safe compared to home elsewhere. It is the sanctity of
the family that the culture holds sacred, the self - effacing, self-sacrificing Indian womanhood
that makes it out to be ‘But when this sanctity itself is threatened, there is an immediate and
urgent need to stop the violence, provide support and a place of safety’.
 The biggest pitfalls thus are the patriarchal mentality and the ideology that a woman’s place
is in the matrimonial home. There is no acceptance of the fact that she has a right to be free
nor does she have alternative recourses to move out of violent relationships, a woman limits
her cries to within the doors of her own home.

Despite the making of domestic violence Bill nothing seems to affect the woman rather they
are in the books for show purpose. Domestic violence law is in the nature of an emergency
legislation and is intended to give immediate relief from violence. Violence is directed to cut
off the woman’s support structure.

. Status of Women - Past & Present Indian tradition in regard to the treatment of women is
very complex, bristling with many contradictions, full of complicated adjustments and
paradoxes of many kinds. The position of women during the Vedic age was in no sense
inferior to men. She was respected and given more importance in almost all the fields of
social life. It is believed that there were women warriors who were symbol of braveness, and
equal to man. It is an open fact that there were women who distinguished themselves in the
scholarly studies of Vedas and recited there hymns as also participated in public debates and
discussions along men. So, we can see that she used to have equal opportunity to educate
herself. In the rituals and all the ceremonies performed, woman was having equal status.

The Vedic term for wife "dampati" would suggest that the husband and wife were regarded as
the joint heads of the households. It is also believed by the scholars that no low points of
seclusion of women in Vedic society is seen. They could move freely in the company of
friends and lovers. There are several passages in the Vedas which refer to love marriages.
Women used to teach also 26 in Vedic period6.

Family violence - Old as History

Family violence is as old as the Indian history. The nature and extent of family violence is
primarily dependent on the quality of life and basic cultural values. The Ramayana and
Mahabharata clearly depict the prevalence of family conflict and violence. There are
numerous historical evidences of intra-family exploitation, conflicts and violence. Lord Rama
abdicated the throne and went in exile in order to fulfil his father’s word of honour given to
his step - mother.

6
Hari Swarup, J. For whom the law is made, 22p. 221-222 (Veena Publishers) 1981.
 Parasurama murdered his mother at the command of his father (Prabhu, 1963). Kautilya,
while advocating seclusion of women and vigilance in the harem describes a number of
instances where the queens in collaboration with their paramours and Kinsmen had killed the
Kings. Kautilya in another context ordains "Any woman who murders her husband,
preceptor, offsprings, sets fire to another’s property, poisons a man, or cuts off any of the
bodily joints of another shall be torn by bulls" (IV. 11 .S.230). Kautilya even allows divorce.
He contents: "mutual enmity and danger to life from the spouse may be the valid reason for
divorce" (III.3.S.155). These references from Kautilya stand as a testimony to the prevalence
of conjugal fight and violence.

Manu (IX.14-15) gives to women the following character, "they are lascivious, fickle
minded, devoid of love and come to dislike their husbands and resort to another man, whether
handsome or ugly, simply because he is a man". Even the earlier historical accounts do not
treat women as reliable life partners.

The Satapatha Brahamana (XIV, 1.1.31) says that women, sudra, a dog and a crow embody
untruth, sin and darkness. Raveda (X.95.15) and Satapatha Brahmana (XI.5.1.9) declare:
"There is no friendship with women and they have the heart of hyenas." Several historical
traditions can be cited to account for the prevalence of the practice of infanticide and
patricide. Further, violence among siblings over the issue of inheritance and succession to the
throne were not very uncommon but had almost destroyed different dynasties.

CAUSES OF DOMESTIC VIOLENCE IN INDIA :

1. Demand for money, jewelry, flat, car, motor cycle, scooter, computer, television,
refrigerator, set of beautiful furnitures, electronic gadgets and various other expensive items
of property etc. as dowry by husband and, in-laws are often the cause of domestic violence
like dowry death, bride burning, cruelty and wife beating etc. in India. Often these demands
may continue for years and the victim women do not tolerate these tortures for insufficient
dowry and due to frustration and depression commit suicide.

2. Sometimes the behaviour of the husband is extremely suspicious, dominant, irrational,

immoral, very much emotionally disturbed, unjust, possessive, jealous etc. which makes the
risk of wife battering very high. These are mainly personal and psychological causes of
domestic violence. The violent behaviour of the husbands are mostly due to their previous
life experiences like

i) The parents of the husbands quarrelled frequently and their arguments were of violent
nature.

ii) The husband who witnesses battering in his childhood learns a powerful message about the
rights of husbands to demand conformity and obedience from their wives and to use violence
to achieve it.

iii) Husband gets severe beating from his parents for trivial reasons.

iv) Their movements were restricted and they received no love or care from their parents.

3. In case of working women, the status inferiority theory maintains that the rate of wife
beating is greater when the wife has more prestigious job than her husband. In such
circumstance, husband generally feels jealous and uses physical, mental, sexual, emotional,
verbal abuses to dominate his wife which leads to domestic violence.

4. In case of housewives, marital maladjustment are sometimes the main cause of domestic
violence like cruelty, wifebeating etc. But the Indian women generally consider marriage as a
sacrament and do not like any outside interference. They are dependent on their husbands for
economic, emotional and social support. They generally do not approve divorce due to its
social consequences and due to domestic violence, they lack self confidence and get
satisfaction from self inflicted pain (masochism). They are subjected to beatings by their
husbands in silence and they vainly hope that their husbands would repent after beating.

5. Sometimes extra-marital affair of the husband, bigamy etc. are the cause of domestic
violence upon a woman.

6. In Indian families domestic violence is not only inflicted by the husband alone but the
entire husband's family participates in it. Especially the "Mother-in-Law" acting as
dominating figure who inflicts violence or harasses the daughter-in-law due to over
possessiveness and jealousy. This also leads to most popular myth that "women are . women's
enemies". They due to jealousy always insist their sons (ie. husband of the bride) to dominate
and control their wives through physical and verbal abuse etc. The most common reason is
rivalry for the affection of the son.
NEED OF THE PRESENT STUDY

In the recent years in West Bengal, domestic violence against women like ill-treatment and
cruelty by husband and in-laws, wife beating, bride burning, dowry death, suicide etc are
increasing unlimitedly. According to West Bengal Commission for Women, in 1998, cases
relating to different domestic violences in West Bengal were 4978 in number, which has
increased to 45% in the year 2005. Not only that, in Calcutta High Court every day atleast 20
cases relating to domestic violence are coming from different districts of West Bengal. In
West Bengal 56% women are suffering from Domestic violence silently, among them only
12% women are no~ trying to protest against this henious crime.

THE OBJECTIVES OF THE STUDY

The specific objectives of the present study are:-

i) To trace the historical developments of the Problem.

ii) To examine the various theoretical aspect of the domestic violence.
iii) To critically evaluate the constitutional and legal provision to prevent domestic
violence and to moot suggestions for eradicating domestic violence.
iv) To critically appraise the judicial pronouncement on domestic violence cases.
v) To review the role of National Commission for Women, West Bengal Commission
for Women and different NGOs working for women etc.

HYPOTHESES:

i) Greed for money and male dominance are the some of the root causes of domestic
violence against women. Inspite of the enactment of plethora of laws in this regard,
domestic violence against women will continue till the attitude of the people is
changed.
ii) The existing laws on domestic violence are deficient and inadequate.
iii) The patriarchal attitude of the Judiciary is reflected in the statutory interpretations
resulting in gender injustice.
LIMITATIONS OF THE STUDY:

Since the scope of domestic violence against women is vast, I, the researcher, have confined
my study only to domestic violence against married women at their matrimonial homes
covered under section 302, 304B, 306, 498A, 494 etc. of Indian Penal Code and the relevant
provisions of Dowry Prohibition Act and the newly enacted "The Protection of women from
Domestic Violence Act, 2005." Cases only on dowry death, bride burning, cruelty and
bigamy reported in the AIR (All India Reporter), Criminal Law Journal from 1983 to 2005
have been taken for detailed study.

METHODOLOGY:

The methodology of my study is partly analytical and partly empirical. The analytical study is
based on secondary data gathered from various sources such as books, Journals, Magazines,
Articles of different Indian and foreign writers, Newspapers and Law Reporters etc.

I have studied and analysed cases and Judgments of Supreme Court of India from 2000 to
2019 on this subject. I have also studied different Delhi High Court Journals from 2012-2020
on this subject.

For my empirical study, I visited Delhi High Court, Delhi Commission for Women, different
NGOs etc and got valuable information regarding domestic violence. So far, the case study of
West Bengal is concerned, I collected data from the field work by taking interviews with
questionnaires of fifty victim women and their relatives.