CHAPTER 3 DOMESTIC VIOLENCE AGAINST WOMEN ___It is well known omnipresent problem that women are subjected to violence at home. Specially, in the context of India majority of such victims do not seek legal remedies. There are many reasons or this, because they are educationally backwards and do not have familiarity with the legal procedure and also having absence of faith in the legal system. It is felt that getting timely justice seems to be a ‘mirage’ as one has to undergo cumbersome procedural bai and compelled to face series of adjournments in the way to get adequate relief. The question arises as to what kind of violence or action falls within the ambit of domestic violence as the experience reveals that domestic violence takes place in varieties. It is to be noted that under the Indian Law there is no recognised definition of expressions "Domestic Violence’, however an attempt can be put forth to define the same. Terms "Domestic Violence against women", what it connotes.—Terms “Domestic violence against women" (geans any act or conduct which has potential to injure or hurt women—physically, mentally, emotionally, socially and also spiritually within the four walls of house, however, such an act or conduct is done usually not by strangers) According to Section 32 (da) of the Parsi Marriage and Divorce Act 1936 the "Domestic Violence" 1ffeans any act or commission or conduct which is of such a nature as to harm and injure or has the potential of harming or injuring the health, gafety or_well being of the person aggrieved. ‘Ordinarily, expression “domestic violence” connotes sexual abuse or a threat e of women but there are several other abuses known to men when women are targeted to physical, sental, verba] and economic abuses. Certainly, these acts or conducts would come within the scope of the expression "domestic violence’. It is to be reiterated that under the Laws in India the expression "domestic violence” is yet to be defined, but it should not be taken to mean that acts of domestic violence are not punishable in India. There is no solitary form of domestic violence, it differs with situations, individuals and households. The impact of domestic violence is to be measured by its degree of severity. It has been seen that the domestic violence could yield drastic and extreme results in the form of death, though there may be minor scar and injury in some cases of domestic violence against women, there could be a situation where domestic violence could result neither death nor minor scars but cause psychological disaster. The meaning and scope of domestic violence against women could aptly (28)DOMESTIC VIOLENCE AGAINST WOMEN oe be clear from a glance at Criminal Law and Civil Law which address the offence as to domestic violence against women to certain extent : 1. Criminal Law In India the Criminal Law is substantially based on the Indian Penal Code, 1860, however, it is supplemented by the special laws. @) The Indian Penal Code, 1860. There are certain provisions under the Indian Penal Code, 1860 which deal with offence in the form of domestic violence against women. These are as under : (a) Dowry death.—According to Section 304-B IPC where death of a married woman is caused by any burns or bodily inj or occurs otherwise than under normal circumstances within seven years of marriage and if it is established that soon before her death she was subjected to cruelty by her husband or his relatives, such death of a married woman is treated as “dowry death". (b) Forceful termination of pregnancy amounts to violence at home—In the view of Sections 313 to 316 of LPC. female infanticide or forcing the wife to terminate her pregnancy are also varieties of domestic violence which is recognised as an offence under the Penal Code. (©) When Woman is driven to commit suicide —On account of domestic violence specially brides are subjected to harassment for demand of dowry and compelled to commit suicide. Abetment of suicide of a disordered mental state of person is an offence punishable with death or 10 years of life imprisonment as provided under Sections 305 and 306 of the LPC. (a) Causing hurt and grievous hurt—It is a common form of domestic violence. Section 319 of the Penal Code defines the expression “hurt”, as causing bodily pain, injury, infirmity and disease to any person, however, serious hurt is termed as grievous hurt under Section 320 of the Penal Code. (e) Unlawful Confinement—it is also one of the forms of domestic violence. when a woman’s movement is restrained or confined within the four walls of house. It is a common form of domestic violence which is an offence punishable under Sections 339 and 340 of the Indian Penal Code. (6 Marital rape—Another common form of domestic violence is in the form of marital rape. Where wife is living separately under a decree of judicial Separation or under any custom and the man is having sexual intercourse with his own wife without her consent it amounts to offence under Section 376-A of the Indian Penal Code. (g) Misappropriation of the wife's property.—Within a view to make wife economically dependent the grabbing of her property by husband is a common form of domestic violence. According to Section 405 read with Section 406 of the Indian Penal Code dishonest misappropriations or conversion of wife's property for his "own use by the husband which the wife has entrusted to her husband, amounts to criminal breach of trust and an offence punishable under aforesaid section of the Code. (h) Matrimonial Cruelty—Under Section 498-A of the Indian Penal Code, 1860 matrimonial cruelty whether it is physical or mental is an offence. The% LAW RELATING TO WOMEN AND CHILDREN terms “cruelty” under the said section has wide scope to include various kinds of other cruelty. Gi The Dowry Prohibition Act, 1961 This is a special law enacted to deal with the social evil of dowry Viz., demand for property or valuable security having an inextricable link with the marriage. In such circumstances the married woman is often subjected to domestic violence at her matrimonial house. As contemplated in Section 3 of the said Act the giving and taking of dowry is a criminal offence. Gil) The Commission of Sati Prevention Act, 1987 __ “Sati” is one of the oldest forms of domestic violence which prevailed in society but curbed in he last century. The expression "Sati" means the burning or burying alive of widow along with the body of her deceased husband.” (iv) The Pre-natal Diagnostic Techniques (Regulation and Prevention of Misuse) Act, 1994 Female infanticide or forced termination of pregnancy is a specific form of domestic violence. This Act regulates the forced termination of female foetus, it permits termination of pregnancy only for medical purpose. 2. Civil Law In India Civil Law too addresses the problem of domestic viclence. The victim of domestic violence can seek civil relief under the following Acts : (i) The Dissolution of Muslim Marriages Act, 1939 yt According to Section 2 (viii) of the Dissolution of Muslim Marriages Act, 1939 “cruelty” means : (a) Habitually offending the wife or ill treating her. (b) Forcing wife to lead immoral life. (©) Disposing of wife’s property without obtaining her consent. (a) Not allowing her to observe religious practice. Under the aforesaid Act the victim of violence at home can seek divorce on the ground of cruelty. Gi) The Hindu Marriage Act, 1955 ‘According to Section 13(1) (a) of the Act, 1955, cruelty is a legal ground for divorce. Though the term “cruelty” has not been defined under the said Act but it is taken to mean acts of physical as well as mental cruelty. Section 10 of the Act provides relief as to judicial separation, so the wife can get rid of her husband’s abuses by living separately under the order of the court. (iii) Other matrimonial enactments There are other matrimonial laws wherein the term “cruelty” qualifies as domestic violence. The Special Marriage Act, 1954? the Indian Divorce Act? eee ee ee T. Section 2 of the Commission of Sati Prevention Act, 1987. 2. Section 27(1) (d). 3. Section 10.DOMESTIC VIOLENCE AGAINST WOMEN a and The Parsi Marriage and Divorce Act} all enactments recognise “cruelty” as a valid ground for divorce. It is a settled legal position that the term ‘cruelty’ includes domestic violence and civil relief available to wife. Domestic Violence are Medico-legal cases.—Mostly, cases of domestic violence are medico-legal. Medical aid is usually necessary when the injured women seeks for help. In cases of serious injuries as a result of domestic violence, Doctors are usually the first person from whom medical assistance is sought. In almost all cases of domestic violence a doctor is the competent person to find out whether an injury is inflicted by another person or self inflicted or accidental. It has been noticed in most of the cases of domestic violence, doctor does not seek clarification from injured woman and usually such injured woman/patient pretends by saying that she slipped and fell down from stairs etc. There are cases where injuted woman herself is a passive catalyst as she is reluctant to narrate the facts relating to injury. Tt is desirable to be outspoken with the doctor. Of course, it is professional duty of doctor to insist for clarification from injured woman regarding her injury. Doctor should also encourage the injured woman to spell out the history of her injury. It is to be made clear that counselling by doctor to injured woman who is a victim of domestic violence could be very fruitful and valuable. This is being moral and legal duty of doctor to provide not only medical aid to such victim but also to make efforts to know and record the cause of injury. Since, all the cases of domestic violence are more or less medico-legal cases, in every emergency/casualty ward of the Government hospital a police officer is deployed whose duty is to register the complaint of domestic violence as medico-legal cases. It is submitted that doctor can effectively contribute in helping and assisting the victim of domes tic violence because he is the first person to be approached. Doctor is expected to follow the oath of confidentiality to such victims. Kinds of Domestic Violence In fact, it is a herculean task rather impossible to summarise the kinds of domestic violence faced by the women in India. Right from dowry death to abetment of suicide, ‘cruelty, hurt, grievous hurt, wrongful restraint and wrongful confinement, sexual intercourse during separation, bigamy, and adultery all are kinds of domestic violence. Passing of abusive remarks, taunting, curtailment of basic needs such as food, clothing and medical assistance in case of sickness etc. are the part and parcel of domestic violence though these acts or conduct are not judicially recognised. There are some judicially recognised kinds of domestic violence. These are as under : (1) Dowry Death > (2) Abetment to commit suicide (3) Cruelty (4) Hurt and grievous hurt (5) Wrongful restraint and wrongful confinement (6) Sexual intercourse during judicial separation 1. Section 32 (dd),2 LAWRELATING TO WOMEN AND CHILDREN () Bigamy (8) Adultery. 1. Dowry Death It is worst form of the domestic violence wherein many married women have been killed at their matrimonial home by her husband and relatives out of greed for dowry. It is considered to be the gravest social evil of today’s immoral society. To deal with the offence of dowry death Section 304-B is included in the Indian Penal Code, 1860 by the Criminal Law (Amendment) Act. The said section defines the dowry death as follows : ____ A dowry death is the death of a woman because of bums, bodily injury or any reasons that are not normal and such death must take place within 7 years from the date of marriage. on Thus, there are three essentials to fulfil the requirement of Section 304B () the husband or relative of the husband should have treated the married woman with cruelty, (i) such cruelty should have been for or in connection with, demands for dowry, and iii) cruelty should have been committed soon before her death. In the view of Section 113-B of the Evidence Act read with Section 304B of Indian Penal Code the prosecution will have to prove that— (i) the death was caused by bums, bodily injury or death occurred under unnatural circumstances and in this regard the post-mortem report is a creditable evidence. (ii) The death took place within 7 years of the mai connection, photographs of the wedding at marriage, are relevant proof. (iii) ‘The cruelty or harassment was caused on account of demand for _ dowry. To prove this the neighbouring witness or. letters of deceased written to parents or some one telling that her in-laws—dre demanding dowry. It would be pertinent to mention that the charge of dowry is mostly n 498-A of the Indian Penal Code which combined with charges under Sectio deal with the term dowry as defined in-Section 2 of the Dowry Prohibition Act, 1961 which reads as under : “dowry means any property or valuable security given or agreed to be given either directly or indirectly— (a) by one party to a marriage to the other; or (b) by the parents of either party to a marnage or by any other person, to either party to the marriage or to any other person. (©) This exchange of property must be for consideration of marriage. Although, gifts that are given to bride during her marriage are not dowry. Such gifts are her own personal property and she has absolute right over them. riage. In this certificates etc.DOMESTIC VIOLENCE AGAINST WOMEN 33 2. Abetment to commit suicide There are numerous instances when women are driven to commit suicide due to domestic violence. In such cases, perpetrator is responsible for the death. What amounts to abetment of suicide? “The Tem "abatment™ has bean defined in Section 107 of the Indian Penal Code. According to Section 107 IPC “abetment” can take place in any of the three forms viz. (i) by instigation; (i) by conspiracy; and (iii) by intentional aiding. However, Section 306 of the Indian Penal Code deals with the abetment of suicide. It provides that "if any person commits suicide, whoever, abets the commission of such suicide, shall be punished with imprisonment for a term which may extend to ten years and shall also be liable to fine. As the word “abetment" in respect of suicide is used under Section 306 of the Indian Penal Code, it has to be read in the sense in which the word “abetment" is defined and used under Sections 107 and 108 of the Indian Penal Code. In other words, in order to convict a person for an offence under Section 306 of the Indian Penal Code, the prosecution must show that there was abetment as understood in the aforesaid section for the commission of the said offence. Scolding, bickering or kicking by the husband whether amounts to abetment. This question was considered in Nand Kishore Vishwanath Newara v. State of Maharashtra, wherein it was held that even accepting the words in the dying-declaration that there was scolding, bickering and kicking by the husband, these incidents in their entirety would not lead to an abetment so as to hold the appellant secured guilty in the offence punishable under Section 306-the Indian Penal Code. Another question whether outraging of the modesty amounts to abetment to commit suicide. The Madhya Pradesh High Court in Deepak v. State of M.P.2 observed that as the statement of the deceased, disclosed from her three dying, declarations, the two accused persons at late hour of the night entered her toom and tried to take advantage of the situation to comimit sexual offence against her. This act on the part of the accused might or might or not have driven the woman to commit suicide. In the facts as have been brought on record, the two accused persons could not have foreseen that such an act on their part, was as serious-offence, which would necessarily drive the woman to commit suicide. It is admitted by the deceased in her own dying declaration that no soon after the incident of outraging her modesty, but after about an hour she put herself afire. The refore, this is not a case where it can be said that the two persons were abettors to the act of commission of suicide by the deceased. Hence, outraging of modesty does not amount to abetment of suicide. {a) Suicide is a self murder—Undoubtedly, suicide as old as the human history itself and has still been one of the most intriguing and complicated problem that has been perplexing the human mind for ages. It has attracted the attention and discussed by the social reformers, psychologists, Jurists, psychiatrists, doctors, Legislatures and even Courts all over the world. Suicide, no,doubt, is a self murder and by its very nature is an act of killing or self destruction and an act of terminating one’s own life by one’s own act and without aid or assistance of any other human agencies. But, if suicide is 1. (1993) I DMC. 195, 2. 1994 CrLJ. 767 (MP).a LAW RELATING TO WOMEN AND CHILDREN hen and successful by itself it is not an offence under the criminal law cause the law cannot reach him to convict, While an attempt to commit suicide is punishable under Section 309, LPC. Similarly, a person who aids, abets or counsels the suticide, is punishable under Section 306 LPC! In respect of the death of a married woman, where the question is whether the death was suicide it may be necessary to determine, whether the victim had been subjected to harassment by her in-laws which may be a continuous build up right from the date of marriage? (b) Reasons for Suicide—There are member of reasons on account of which the persons commit suicide. The causes to take such recourse are mental, physical and social. Some circumstances are illustrated as follows but they cannot be said to be exhaustive : (i) the person suffering from mental illness treatment; (ii) depressive illness with a feel mental disorder; (iii) due to poverty; (iv) failure in love, examination and business; (v) serious physical illness either incurable or unbearable, with a sense that illness will never be cured; (vi) extreme physical or mental torture or cruelty to the married woman by the husband or his relatives? (@ Modes of Suicide—The modes and methods to commit suicide differ from place to place and person to person and many times governed by the means available. However, some modes and methods could be illustrated particularly with reference to the women as under : () by burning, (ii) by drowning, (ii). by poisoning, (iv) by hanging, (v) by jumping, (vi) by shooting. requiring psychiatric Jing of worthlessness, accompanied by 3. Cruelty In India, certain forms of domestic violence have been made o the Indian Penal Code, namely Section 498-A, which deal with cruelty by a husband or his relatives to a woman. "Cruelty" in the form of domestic violence may be physical or mental, criminal or civil. However, 4 types of cruelty are considered as an offence as provided under Section 498-A, LPC. : (i) intentional conduct which is likely to drive the woman to commit suicide, (ii) intentional conduct which is capable to cause injury to the limb, life or health of the woman, x 1. State of Maharashtra v. Madhusudan and others, (1993) Il DMC 10 (Bom.) (08). 2. Suresh Raghunath Kochane v. State of Maharashtra, 1993 (2) Crimes 545. 3, State of Maharashtra v. Madhusudan and others, (1993) I DMC 10 (Bom.) (DB). ffence under35 DOMESTIC VIOLENCE AGAINST WOMEN (iii) forcing, women with the view to get some Property, : (iv) harassment because the woman at her relatives did not give some Property. : A single act of physical violence or a series of small acts of violence amounts to cruelty. It may be physical or mental, however, constant nagging, false accusation of unchastity etc. are treated as a mental cruelty. What is harassment? The term has not been defined in the Statute but the courts in India have held as harassment the following : (i) Forcing woman on perverse sexual intercourse. (ii) Denial of food. (iii) Forceful confinement of woman within the house. (iv) Repeated physical assaults. (v) Repeatedly abusing children in Presence of the mother causing mental torture. (i) Denying woman access to children with the view to cause mental agony. (vii) Taunting amounts to harassment. (viii) Threating divorce. The term ‘cruelty’ 3 i : : s IPC. seade acucl 'y as defined in explanation appended to Section 498-A, aon se, the purpose Of this section cruelty” means— 4) any wilful conduct which i: ji i % ue if z ich 1S of such a rales 4s is likely to drive the woman ss icide or fo cause (whether mental or Physical) of De 2 : = (0) harassment of the woman where orn 2 her or QNY. person. vol, cccn Sia* LAW RELATING TO WOMEN AND CHILDREN {twas therefore, to curb this form pf domestic violence which resulted in atrocities on women that the aforesaid provisions were introduced. Though, the main provision of Section 498-A, LPC. has made the offence of cruelty to women as the subject, the legislature has to take care to define cruelty for the purpose of Section 498-A, LP.C. by adding an explanation as aforementioned. Of course, it was not every type of harassment or cruelty that would attract Section 498-A, LP.C. it must be established that harassment or cruelty was with a view to forcing wife to commit suicide or to fulfil illegal demands of husband and in-laws.’ ‘The Constitutional validity of Section 498-A, LPC. was challenged in Inder Raj Malik v. Mrs. Sumita Malik? and the Delhi High Court observed that there is no question of giving any arbitrary power to the police as well as the courts. The word “cruelty” was well defined and its importance was well known. The importance of word “harassment” was also very well known and there cannot be any arbitrary exercise of power in interpreting the word. In fact, many words occur in many provisions of law and they are to be interpreted by the courts. It is true that wide discretion has been given to the Court in the matter of interpretation of the words occurring in the Laws and in the matter of awarding punishment. If giving this discretion was thought to be conferring arbitrary powers on the courts, most of the provisions of law will have to be struck-down as ultra vires. While discretion was given to punish a person for the same offence with imprisonment up to 10 years, it cannot be said that element of arbitriness had: scrapped completely. It was well established that it does not come in conflict with Article 14 of the Constitution. None of the articles of the Constitution have been contravened by any of the provisions of Section 498-A, LPC? 4. Hurt and Grievous Hurt Simple injury or serious injury is oné Of the forms of domestic violence. It is a physical violence when a’ woman is subjected to direct bodily assault. If any one causes to a woman, bodily injury or disease or infirmity that person will be considered to have caused hurt to that woman. The expression ‘hurt’ connotes simple injury, however ‘grievous hurt’ relates to serious injuries. The punishments for these two offences are different. Criminal Law recognises these two types of physical hurt and punishments for these two offences are different. The offence as to hurt has dealt with by the relevant provisions of the Indian Penal Code i., Sections 319, 321, 323 and 324, although the offence as to ‘grievous hurt’ has been dealt with by the Sections 320, 322, 325 and 326 of the Indian Penal Code. If the act of hurt or grievous hurt was done with the intention to hurt or to cause grievous hurt it is punishable under the aforesaid provisions of the Indian Penal Code. 5. Wrongful Restraint and Wrongful Confinement Wherein a woman is stopped from going out of the house or locked up on the person who commits such act is liable to be punished under Sections 339 and 340 of the Indian Penal Code. The time period for which women were T. Sarala Prabhakaran Waghmare v. Slate of Maharashtra, { (1991) DMC 310 (Bom). 2. 1986 (2) Crimes 435 (Del, 3. Indrawati and others v. Untion of India, 1 (1991) DMC 117 (ALL).DOMESTIC VIOLENCE AGAINST WOMEN 7 wrongfully confined is irrelevant. Women have a right to move and proceed in any direction that they want to. When a woman is obstructed or prevented from proceeding beyond certain circumscribed limits it amounts to violence against women. 6. Sexual Intercourse during Judicial Separation In India, the Law does not recognise “marital rape” as an offence. Thus, a man is not liable to be punished for raping his wife unless she is below the age of 15 years. Although, compulsive sexual intercourse with a wife who is living separately under an order of judicial separation is an offence under Section 376-A of the Indian Penal Code, 1860 and such sexual intercourse can be treated as domestic violence against women. 7. Bigamy Keeping of second woman or mistress during the subsistence of first wife, the person who commits such act is guilty of domestic violence against first wife. In other words, if the husband of a married woman marries some one else while the first wife is still married to him or if husband was already married when a woman got married, husband may be guilty of bigamy. By the nature, bigamy is considered to be one of the kinds of domestic violence against women. However, if the person belongs-to Muslim community he is Permitted to marry more than once, thus to keep more than one wife at the same time. It means that for the att of bigamy as,a domestic’ violence one will have to look at thé personal law’ that applies to the person to find out whether the second marriage is valid dr not. What is"bigamy? It has been statutorily defined under Sections 494 and 495 of the Indian Pénal Code, which provides that the husband is guilty bigamy if— () he has a wife Who is alive, and (i) he has married again, and (ili) his- second marriage is ‘void’ on the ground that he is already ~ married, and (iv) first marriage has not been pronounced ‘void’ by the Court having jurisdiction. The aforesaid provisions of the Indian Penal Code further state that_ rson/husband shal be liable if the whereabou irst wife have not been known for a continuous period of 7 years or more, It is to noted that if a person is a Hindu, Sikh, Jain, Buddhist Christian’ or Parsi? will be subjected, to penal action if he marries a second time. However, if a husband of a woman is a Muslim, he is permitted to marry more than once as he is governed by the Muslim Personal Law. Conversion to Islam ~~only for the purpose to marry a second time is an offence. The Apex Court in la Mudgal v. Union of India> has held that if a husband has converted to Islam only so that he can get married again, he will be guilty of bigamy in his second marriage itself. If means that if a man is already married under Hindu Personal Law and subsequently he converts to Islam for the purpose of 1. By virtue of the Indian Christians Marriage Act, 1872. 2. By virtue of Section 5 of the Parsi marriage and Divorce Act, 1936. 3. (1995) 3 SCC 635.38 LAWRELATING.TO WOMEN AND CHILDREN marrying again, he will be committing domestic violence against his first wife, Bae amounts to be an offence punishable under Section 495 of Indian Penal le. 8. Adultery When a married_man is having a sexual relationship with another married_ Woman, "his act amounts to domestic violence against his legally married wife. In legal term it is called adultery which is an offence’ ~Under Section 497 of the Indian Penal Code 1860 a woman’s husband is guilty of adultery if— () He has sexual relationship with a woman who is married to another person, and (ii) He knows that she is married, and (iii) He has reason to believe that she is married, and (iv) He does not have the consent of husband of that woman to have sexual relationship ‘with her. * ~~ A bare reading of Section 497, LPC. shows that the law relating to adultery is not fair because it does not give right to a woman to prosecute her husband who commits adultery. It is‘the husband of the woman with whom delinquent husband had sexual relationship, who can prosecute him. In other words, in case of adultery, the only person who can start a case against delinquent husband, is the husband of the woman with whom delinquent husband has had sexual. intercourse/relationship. Thus,@ woman has no right to prosecute her husband if he is committing extra marital offences. Such complaint however, has to be entertained initially by the pre-litigation cel Women’s Commission is empowered to write letters to the police seeking cooperation in respect of the victim of domestic violence and to render protection and also help in getting back the belongings of the victim. Women’s Commission can use its high office for conciliation and perform function as a conciliator. It is to be noted that the Women’s Commission is not a substitute for a legal option, having no power of enforcement. Victim could take the help of the Police Apart from the National Commission for Women and State Women’s Commission a victim of domestic violence could also take the help of the police. Wherein the victim of violence at home opted to seek help of the police, she herself or some one else can register an FIR and the police on duty is bound to register the same. In case police declined to register the FIR, then in such circumstances victim can make complaint against such police officer to the. i Police or to # it issi ice where there is Commissioner system. It is pertinent to mention here that the victim of domestic violence has an option whether to initiate action or to bestow another opportunity to offender spouse and his relative to amend themselves, thus, victim could always mention in her FIR that she is ‘recording the incident and does not wish to initiate criminal action. Women’s Commission Through law viz., the National Commission F: Act, 1990, anDOMESTIC VIOLENCE AGAINST WOMEN 39 autonomous body has been set up by the Central Government to be called the National Commission for Women. This Commission functions at national level, however, most of the States have also constituted commission to be known as the State Women’s Commission. The National Women’s Commission and the State Women’s Commissions perform similar functions.(fRese Commissions render assistance to women who are in distress) In keeping with the view to deal with the complaints most of the State Commissions have constituted "complaint cells." Functions of Women’s Commission.—Since there is no prescribed format for making application and seeking assistance of the Commission, a simple application can be,made. If the Commission is of the opinion that the case in hand is genuine, the Commission can issue notice and call the opposite party. Such complaint to police can be lodged by the relative of the victim or through her next friend. Recovery of stridhan" of such victim can be made with the help of police. Women’s Police Station In order to control and also to provide speedy and effective protection to victims of violence at home, some of the States in India have set up special women’s Police stations. These police stations are managed by women Police officials and professional counsellors are attached to these special police stations with the object to counselling. Usually, these Counsellors try to harmonize the relation between the spouses and suggest amicable settlement before initiating criminal proceedings. However, idea of counselling gets failed if the husband and his family members happen to adopt stubborn attitude and reluctant to settle the controversy in a friendly manner. Women’s Police Station is helpful for recovery of victim’s ‘stridhan’ and belonging etc. Though, these women’s Police have vested jurisdiction to deal with crime against women including domestic violence against women but rapid increase of domestic violence against women in today’s so called society it seems to be very difficult to achieve the objectives. Remedies for Domestic Violence In absence of special law in the field of domestic violence against women, the victim of domestic violence may seek remedies under the existing laws. Such women will have option to choose remedies under Civil Law and Criminal Law. (a) Remedy under Civil Law—If a woman is subjected to domestic violence by her husband one solution for her is to end the marriage by way of filing a divorce petition or seek judicial separation or claim_maintenance-frem her husband with the view to live separately from her husband. There are some advantages of civil remedy which are as follows : (i) There is no phobia of self styled police. (ii) There is option to choose remedies such as divorces, injunctive relief and custody of children etc. (iii) Civil cases are comparatively easier to prove the point. (iv) Possibility to find willing witnesses.“0 LAWRELATING TO WOMEN AND CHILDREN (v) Since Civil cases are mostly compoundable, there is always scope for settlement on the basis of mutuality. But there are some disadvantages while secking remedy under Civil Law, such as : (i) Initiation of proceedings under Civil Law is more expensive because hiring of an advocate and payment of court fees etc. may prove hard monetary burden. (ii) Civil cases are time consuming as practice of adjournment prevails. (iii) No punishment involved in Civil cases. Under civil law, an aggrieved woman can seek monetary compensation from her aggressor without sending him to jail. Mostly Indian women opt for taking recourse of civil action because of the stigma attached to criminal action. (6) Remedy under Criminal Law.—If a woman, is subjected to violence at home, she has option to initiate criminal action against her abuser. Though, the domestic violence against women have no specific recognition as an offence in Criminal Law in India, but there are provisions in the Indian Penal Code and also in the Code of Criminal Procedure that could be of help to the victim of violence at home. In India, the Criminal Justice system governed by the substantive law ie., the Indian Penal Code, 1860 which defines as to what acts are offences and provide punishment for such offences. Another aspect of the Criminal justice system is procedural law ie,, The Code of Criminal Procedure, 1973. It explains as to how criminal proceedings are to be undertaken and suggests how -to use substantive law. It also provides machinery for investigation of case and its trial before the criminal court. Like remedy under Civil Law the remedy under Criminal. Law too have some advantages and disadvantages. The advantages of remedy under criminal law are the following : Fear of police may prove as a good antidote to check the violence @ at home. (ii), Remedy under Criminal Law is speedier than remedy under Civil Law. (ii) Criminal action may result in punishment. (iv) It is comparatively less expensive. (v) Burden of contesting the case lies on the public prosecutor. There are also some disadvantages of remedy under Criminal Law. These are as follows : (i) Intervention of the police may be counter productive. (ii)_ In view of globalisation of corruption, the police in India is not an exception, therefore, there could be collusion between police and the accused person. (iii) Registration of FIR may be a herculean task as usually police in India is reluctant to register the same, (iv) No monetary relief as such is provided in criminal action except nominal compensation in few cases. (v) Difficult to produce witnesses, in case witness are family members of accused family. It is submitted that preparing for legal options to seek remedy is not an €DOMESTIC VIOLENCE AGAINST WOMEN 4 easy task because most of the victims of violence at home are not familiar with legal system and there is possibility that victim may be further traumatised by investigating and law enforcing agencies. In India going to police station or to court is not taken in a good spirit. There is ample need to do overoiling of entire system right from registering the FIR to the final decision of the court. As most of the women are not sufficiently literate and trained to deal with the situation of domestic violence. It is highly desirable that women in India should be taught and explained as to what remedial action would be appropriate in given situation. Husband to Execute A Bond for Keeping the Peace—Wherein the wife who does not want to take drastic rather,stern action against her abuser husband she can adopt moderate course and can obtain an order from court compelling her husband to give a Bond for keeping the peace. Under this bond, the husband of such a woman has to give undertaking to discontinue acts of violence at home is ti i larantee for_keeping peace at home. In case of breach of bond, the husband has to sumender his security to the court and if he_failes to do so, he may be imprisoned, Section 107 of the’Code of Criminal Procedure, 1973 provides the procedure for getting the husbarid to execute a bond for keeping the peace. It is submitted that in some cases the ‘bond for keeping the peace" could prove effective relief to the victims specially where situation and relationship between husband and wife is not beyond reconciliation and there is room for amicable settlement of problem. On the other hand, the fear of imprisonment and social repercussion may be deterrent elements to stop violence against wife. AN ANALYTICAL NOTE ON DOMESTIC VIOLENCE BILL, 2002 Undoubtedly, the present Domestic Violence Bill 2002 deserves million dollar appreciation and applause from every law abiding family oriented citizens and women respecting Indian Society. Of course, it is an_exhilaratis islati y the present regime. This Bill should not be taken as surprise, because in 1994 the same kind of Bill was moved by the previous Government, but unfortunately that Bill could not see the light of the Day. The present Domestic Violence Bill, 2002 has some pros and cons which are as under : : (i) Only habitual violence is considered to be an offence—A close reading of the present Domestic Violence Bill, 2002 reveals that in every definition of the bill, domestic violence is considered as an offence only if it is habitual. Thus, a solitary domestic violence cannot be termed as an offence within the scope of the Bill. It seems that to avoid flood of, mostly unscrupulous litigations falsifying as domestic violence the Legislature intended to bring only the domestic violence which one was habitual in nature or repeatedly taking Place. Such domestic violence of course falls within the purview of the present Bill. It means a woman would have to subject herself to repeated assault and torture to prove that her husband habitually beats or use violence against her. The situation is somewhat worst while reading clause 2 of the present Bill which states that if the perpetrator of violence can prove that the act was committed in his own or for the protection of his or another’s property then“ LAW PELATIG TO WOMEN KID CRLDFEN it does not constitute domestic violence as an offence. This is 2 legal alibi which is enough to give licence to domestic violence, apart from denying women their fightful share in property, this domestic violence Bil intends to legitimise violence against any female member in the shared household, let it be mother, sister, daughter and wife demanding a share in the family property. Gi) No Equal Right to the “Matrimonial home”—in keeping with view to the practicability of the situation relating to domestic violence, the reality is that the moment 2 woman complains of domestic violence, in most of the cases she is thrown out of her matrimonial house along with the duildren. She has or she is forced to leave her matrimonial home because of the shadow of danger to her life. It is to be noted thet in the present Bill, there is no provision to restrain the husband from action. It is a loophole in the Bill as this is a major deterrent to her resistance It is highly desirable that 2 woman should have equal right to the matrimonial home. It does not matter whether she is a victim of domestic violence or not? However, this right was included in the Domestic Violence Bil. 1994 It is wholly impracticable thet in the absence of equal right to the matrimonial home, how 2 victn can maintzin separate existence within the matrimonial home specially when the majority of people in India do not have houses of their own In the view of this fac, women should be given equal perpetrator, room. Absence & remedial provision in this regard, makes the Bill for complainant of domestic violence. Overall it is a complicated issue which reeds further study and discussion with the view to plug loophole in the Bal? Gi) Bill makes counselling mandatory—The present Domestic Bill cases counselling could yidd desired result in the matter of domestic discord. ‘Although such counselling has to be voluntary and it differs from case to case depending upon the nature of the matter and sense of humour of the conflicting parties. According in BINDA KARAT—‘the perpetrator and the complainant Cannot be equated as one in the present Bill Nor can the woman be forced to accept counselling jointly with her tormentor Such a course of action would be inhuman, unjust and only add to her trauma.” Since victim and tormentor cannot be treated as equal and the concept that 2 woman miust adjust with the husband and his family members, such concept should be kept away as far as Domestic Violence Bill is concerned, because in some cases of domestic violence forcing victim to accept counselling will prove another legal torturing. However, if the victim is willing to take recourse of expertise counselling and tormentor too expresses inclination then in such circumstances there can be no better recourse than the counselling. Gv) Only registered women's association to offer support to a woman jn distress —Though, the concept of ‘service providers’ has been introduced in the present Bill but only registered woman's organisation/association could pear Set To Tames of india, dated 163-202OOMESTIC WIAENICE AGSNGT MEN a legplly otter sappert to 2 women in Cistress. Iti 2 ge0d provision beczwse Ge oryaisztions Yike the AM india Democste time's Associaton which trot its counselling centres in Citferext parts of the caaxtry Cn an overage interes in DD coves of worsen ix, Eteas eiecy yer, Toe me tone Hexen Ota ee G) Vietiea’s om pitts. (i) Parent's Gmily sapport (iil) Comnenamiity’s irtersention egpirst Comestic viclence. It is unfortunate thet the present Bil does cet mecogrise See elements of ressiance while tain, wth te dometc valerce, homeves & meces the comegt A “eevee provided ad pamis stevection of meistend womens zasccction oly. Tres, he sope of commmmity ence and intervention of frends ad neigsboss bes cot ben alowed. Tee past expetence shons that in coemee f Beds ox veigtores’s corer: Se ealoning agentes may case hereennect tatead of beicnag Ge viccu domestic violence. (9) Introduction of zxother Ger between fhe compliant ond Ge coutt—The present BA makes provision for another tes 25 2 middle Sex Gs, Protection offices} between the complainant sexi ise cost. Tk he past experience shons that xh provision wh fo buxeaxcmetsation of Se rooms of justice and add room Eke Dowry Proibition Act ad Prevention of Sex Determination Act, would show that adding of anotter sructae makes somes of justice only complicated and rotting dee. It is submitted thet the present fom of He Domestic Viekexe BE weedd only merase the rete and levd of comeption, me ad ened of Geomestic vidlence agginst women 2s it omizis sever lopteies & macdaes Se concept that omen axe basicly home meles which suggests sexless adjustment to tnequ Hen, this Bil im he pest form needed aoe Practical approach THE PROTECTION OF WOMEN FROM DOMESTIC VIOLENCE ACT, 2003 Introduction ‘The Vienna Accord of 1994 and te. - a Committee on Convention on Elixiation of AN Forms | Against Women (CEDAW) in its Genezal Recommendation ut as, erfore, proposed to enact 2 law leeping in view the sights under Articles 14, 15 and 21 of the Constitution of India, 1953 t ———“ LAWRELATING TO WOMEN AND CHILDREN = for a remedy under the civil law which is intended ' proieet the women from being victims of domestic violence and to prevent the occurrence of domestic violence int we passe The Protection oF Waren front Domestic Violence Bill, 2005 having been passed by the Lok Sabha on 24th August, 2005 and by the Rajya Sabha on 29th August, 2005, received the assent of the President ‘of India on 13th September, 2005 and came on the statute book as the Protection of Women from Domestic Violence Act, 2005 (43 of 2005). Highlights of the Act The present legislation namely, the Protection of Women from Domestic Golence Act, 2005 contains the following special features— 1. Comprehensive Enactment.—It covers those women who are or have been in a relationship with the abuser where both parties have lived together in a shared houschold and are related by consanguinity, marriage or through a relationship in the nature of marriage or adoption. In addition, relationship with family members living together as a joint family are also included. Even those women who are sisters, widows, mothers, or single woman, living with the abuser are entitled to legal protection under the present enactment. Expression "domestic violence" defined—It defines the expression ~ddiestic violence” to include actual abuse or threat or abuse that is physical, sexual, verbal, emotional or economic. Harassment by way of unlawful dowry demands to the woman or her relatives would also be covered under this definition) 3. Expression "Respondent" in Section 2(q)—Interpretation of — Wherein complaint filed against mother-inlaw’and sister-in-law as respondents besides husband as respondent no. 1. Thereafterdeletion of names of female dents occurred. In the present case! the High Court directed appellant/applicant to vacate matrimonial house besides it confirmed the order of the fellow Judge deleting names of the female members from the array of parties as respondents. As noted the both the courts below put erroneous interpretation to expression “Respondent” in Section 2(q) of the Act 2005. (According to the Supreme Court not only "adult male persons” but also a “relative” of the husband or male partner is included within the scope of a complaint, which may be filed by an aggrieved wife or a female living in a relationship in the nature of marriage. Although, expression "female" has not been used in the proviso to the said section but it has not been excluded a “female” from the sweep of the term relative” as used therein. Both the courts went wrong in holding of the will by remaining influenced by definition of “respondent” in main body of Section. Impugned order set aside. 4, Right of women to secure housing—It provides for the rights of women to secure housing. It also provides for the right of a woman to reside in her matrimonial home or shared household, whether or not she has any title or rights in such home or household) This right is secured by residence order which is passed by the magistrate. 5, Magistrate to pass protection orders.—It empowers the Magistrate to pass protection orders in favour of the aggrieved person to prevent the T. Sor. Sand bye Manoj Wankhade v. Manoj Bhimrao Wankhede, 2011 (3) SCC 650.DOMESTIC VIOLENCE AGAINST WOMEN s&s Tespondent from aiding or committing an act of domestic violence or any other specified act of entering a workplace or any other place frequented by the aggrieved person, attempting to communicate with her, isolating any assests used by both parties and causing violence to the aggrieved person, her relatives or others who provide her assistance from the domestic violence. 6. Appointment of Protection Officers.—It provides for appointment of jon Officers and registration of non-governmental organisations as service providers for providing assistance to the aggrieved pers n sith respect to her medical examination, obtaining legal aid, safe shelter, o Thus, the Protection of Women from Domestic Violence Act, 2005 provides for more effective protection of the rights of women guaranteed under the Constitution of India, 1950 who are victims of violence of any kind occurring, within the family and for matters connected therewith or incidental thereto. Meaning of Important Expressions used under the Act These are as under :-— . Aggrieved person Child Domestic Relationship . Shared household . Shelter home 1, Aggrieved person.—According to Section 2(a) of the Act, expression “aggrieved person” means any woman who is, or has been in a domestic wor relationship with the respondent and who alleges to have been subjected to Pepe any act of domestic violence by the respondent. 2. Child—As defined under Section 2(6) of the Act the word “child” means any n below the age of 18 yearsand includes_any adopted, step or foster child, - 3. Domestic relationship—As defined under Section 2(c) of the Act the expression "domestic relationship" means 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 in the nature_of marriage, adoption or are family members living together as a joint family. jes wana , blood , offs donyche edadoeybep trebedl oy 4. Siared household.—AS defined under_Section_2(3) of the_Act expression “shared household” means a household where the person aggrieved lives or at any stage has lived in a domestic relationship either singly or along , with the respondent and includes such a household whether owned ortenanted either jointly by the aggrieved person and the respondent or owned or tenanted by sitar of them in respect of which either(the aggrieved_person_or_the respondent or both jointly or singly have any right, title, interest or equity and includes such a household whic tay belong to the joint family of whIa the a respondent is a member, irrespective of whether the respondent or the, 4. aggrieved person has any right, title or interest in the shared household) >> Shelter home.—According to Section 2(t) of the Act the term “Shelter home" means any shelter home as may be ed by the Sta ernment to be a shelter home for the purposes of th awe 3 Act. 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