Domestic Violence

“The manifestations of violence against women are a reflection of the structural and institutional inequality that is a reality for most women in India”

Any act that harms or endangers the health, safety, life, limb, or wellbeing of the victim both mentally and physically, or tends to do so, which includes causing physical abuse, sexual abuse, verbal abuse, emotional abuse, and economic abuse comes under the purview of “Domestic violence”

The word “domestic violence” referred to here has its explanation under the Protection of Women against Domestic Violence Act, 2005 (‘DV Act’). The statistics go on to show how 1 in 3 women in India experience physical or sexual abuse from their husbands and non-partners[1]. ‘Domestic relationship’ means any relationship with her husband or live-in partner and with his relatives. It is said that 31.1% of married women between the ages of 15-49 have experienced spousal violence at least once in their lives and few women get married before the age of 18[2]. It is also reported that the majority of cases under the category of ‘crimes against women’ comes under “Cruelty by Husband or His Relatives” as recognized by the Indian Penal Code. [3]This case of abuse that comes under domestic violence can be perpetrated by any person who lives in a domestic relationship with the victim. They must have lived together at any point in time or must have shared the same household or they must be related to each other through a bond called marriage or maybe adoption.   

Further, the Protection of Women against Domestic Violence Act 2005 protects a wide range of women from house abuse. It prevents their physical, emotional, sexual and economic well being and all these forms of violence come under the Act. This Act also covers women living outside marriage i.e for example couples being in a live-in relationship. In case if the woman wants to continue living in the same house but she needs relief from physical violence, then she has various options under this Act. She can exercise her right to get an order of protection against her husband and his family and then continue to live in the same house. At this instance, she cannot be thrown out of her matrimonial house for any reason. She even has the right to claim maintenance, file a case against the abuse, and claim custody over her children and claim compensation for the same.

Generally, a wife should apply for divorce in case of claiming maintenance. But under the shelter of the DV Act and section 125 of the Indian Penal Code, a woman has a right to receive maintenance from her husband without filing for a divorce. Therefore, a petition for maintenance is maintainable even in the absence of a divorce petition.

Steps to protect Domestic Violence in India

Firstly, any woman in a domestic relationship with the aggressor can seek relief under the Protection of Women from Domestic Violence Act, 2005. Not only men but even women can be abusers under this act and they can be held liable. 

• A complaint can be filed in the nearest police stations or from a protection officer seeking recourse.
• A complaint in the nearest family court, magistrate court or the district court which comes within the jurisdiction of the party’s residence can be given.
• A woman may also approach any women-related organizations that are most easily accessible near their area of residence. It may also be useful to consult a lawyer with whom they can get the support of an NGO or a woman’s rights organization that looks into the matters concerning women.
• The Protection Officer to whom the complaint has been filed and the court will take necessary steps to prevent any acts of domestic violence and make sure that the victim is not put in any danger.
• Once the complaint is filed or after the case has been filed against the abuser, notices will be sent to him for hearing them in person
• Necessary orders will be passed by the court after hearing both sides and the directions will be issued as such. In the case of extreme cases, immediate orders will be passed by the court.

In case if the party has experienced major risks that come out from family violence, then they may seek an exemption from the Family Dispute Resolution before going to court for parenting orders. Domestic violence among the household can be immediately curbed through improving efficiency in helpline numbers and with an increase in trained counselors. This builds a safe environment for the woman from the abusive environment.

Effect of domestic violence against women

Violence against women is a complex issue and that has to be looked at in a wider meaning. Women refrain from a lot of issues and this paves the way for the perpetrators to get away with their crimes. Any action is done by a man to women and if it leads to a problem, then it has some adverse effect on society. Generally, women get affected both mentally and physically and get into depression, anxiety attacks, low self-esteem, lack of trust in others, feeling of abandonment, etc. Also, physical abuse takes place which results in serious injury or death to the victim.

This existing law on violence against women has been curtailed by this way of the legal system. It constructs the issues of domestic violence cases in India and guarantees equal rights to women as mentioned in our constitution. This change in law has been brought into force after several amendments in the existing laws and the introduction of new ones. This way will reduce the cases of domestic violence Studies, however, show that the implementation of the laws remains partial and conservative, and convictions in cases of domestic violence remain minimal.

The legislative intent of bringing this law was further emphasized by the Supreme Court of India where it stated that the Domestic Violence Act, 2005 was enacted to give a remedy in civil law for the protection of women, which starts from being victims of such relationships and to curb the occurrence of domestic violence in the society[4]Before the enactment of this act, the victims could approach the court to seek remedy under Section 498-A of the Penal Code, 1860 which has provisions for ‘husband or relative of husband of a woman subjecting her to cruelty. This Act was not so wide that the offence relating to the cruelty of married women was the only recourse. All other offences that came under the act of domestic violence were to be dealt with under the offences that the other respective acts of violence constituted under the IPC without any regard to the gender of the victim

The objective of this DV Act is to grant statutory rights and protection to victims of violence in the domestic space who had no proprietary rights. It also provides for the security and protection of women in a household irrespective of their proprietary rights in their residence. It aims at protecting the wife against violence and at the prevention of recurrence of acts of violence.[5]

A residence order may be passed by the Magistrate under Section 19 of the DV, Act, 2005 which restrains the respondent from dispossessing or disturbing the possession of the aggrieved person from the shared household, directing the respondent to remove himself from the shared household, restraining the respondent or his relatives from accessing any portion of the shared household in which the aggrieved person stays, restraining the respondent from renouncing his rights and alienating or disposing of the shared household or encumbering the same. It also directs the respondent to secure the same level of alternate accommodation for the aggrieved person. A residence order may also be passed or any other direction may be given which is reasonably necessary to protect women and that provides safety for the aggrieved person.

How can a Family law Attorney help in this matter?

This act of domestic violence comes under the face of family law where the situations in the family lead to violence and unrest. In these cases, the family court has jurisdiction to help and especially regarding cases of domestic violence, the family court has specific ways to address and resolve a domestic violence case legally.

Therefore, the victim who was subjected to the abuse should seek help from an expert law practitioner who has to look into several factors to proceed with the case. The lawyer should analyze the severity and look into the intensity of the matter. The initial step can be taken by sending a legal notice stating his/her actions have come under the purview of domestic violence and that necessary actions will be taken. The lawyer assesses the intensity of the crime by the following factors:

• How much pain does the victim has gone through
• The type of violence caused to the victim
• Any reply or reciprocation from the side of the abuser for the legal notice that has been sent by the victim.
• Number of times that the abuse has taken place etc

Then the restraining order can be sent by the lawyer when the issue becomes serious. In those circumstances, the order can be made accordingly that the victim stays away from the abuser. The couple can also be sent to therapy sessions in case of any mental issues. Trials might take place and proper enquiries and investigations will be undergone. These are a few ways in which the family lawyer can help victims in a domestic violence case.

---

[1] World Health Organization Report (2017)

[2] National Family Health Survey IV conducted in 2015–2016

[3] National Crimes Record Bureau

[4] Indra Sarma v. V.K.V Sarma, (2013) 15 SCC 755

[5] Ishpal Singh Kahai v. Ramanjeet Kahai, 2011 SCC Online Bom 412