Tag Archive | IPC

Legal Protection of Women Against Domestic Violence

images (25)Violence against women is a centuries old phenomenon. The violence may be of different forms, like child marriage, witch hunting, honor killing etc. It is due to defiance of the stereotyped role model of daughter, sister, wife and mother and of course daughter-in-law. Domestic Violence has been justified throughout the ages; legal and cultural traditions have granted men permission to beat their wives and even to kill them with intend to subordinate women. Although efforts had been made to electrify the image of women by associating her with Goddess Durga. Yet, it is ironical that India became patriarchal or male- oriented society. Causes of domestic violence may be many like alcohol and drug related, dowry related, frustration due to unemployment and financial constraints. Women also continue in violence relationship due to economic dependence upon men, family and social pressure to keep the family intact and preserve the marriage, lack of parental support absence of faith in the law and fear of losing custody of children.

In the modern age, voices have been raised against these inhuman practices and efforts made to bring about change by creating awareness, by educating people through legal actions. It was Raja Ram Mohan Roy who led the movement for women’s rights. He was responsible to bring social changes like stopping child marriage, sati and legitimization of widow remarriage. Though the term domestic violence was not in vogue in those reforms, their aim was to make women’s lives more humane and protected.

Laws available to women against domestic violence: Till 1983, there were no specific law pertaining to violence. Husbands could be convicted for murder, abetment to suicide, causing hurt and wrongful confinement. In section 304 of IPC, where the death of a woman is caused by burns or bodily injuries or occurs due to reasons other than normal circumstances within 7 years of her marriage and if it is find that the wife is subjected to cruelty by her husband or his relatives, the death is termed as DOWRY DEATH. Section 313-316 IPC. says that forcing a wife to terminate her pregnancy also forms domestic violence. Section 306 is available to punish relatives for abetment of suicide. The Dowry Prohibition Act 1986, also available as putting ban on the practice of dowry. Throwing acid has been made punishable under the amendmets of IPC.

Newly formed Law for protection of women; In 1992, lawyers collectively drafted and circulated a Bill on domestic violence. It was widely circulated among women’s groups including the National Commission for women, but by this time, most of women’s groups wanted a law on domestic violence. Drafted in accordance with the UN framework, this Bill had the great support of the women. Thus, Indian Government introduced a Bill on domestic violence in Lok Sabha titled as ‘The protection of women from Domestic Violence Bill 2001’. Great deliberations were going on and great need was felt to such legislation in effect. The Act was passed by Parliament and assented to by the President. It was named as ‘The Protection Of Women Against Domestic Violence Act 2006″. It was the first significant attempt to recognize domestic abuse as a punishable offence to extend its provisions to those in live in relationships, and to provide for emergency relief for the victim.

Section 2 provides protection against act, conduct, omission and commission that harms or has the potential to harm, will be considered as ‘Domestic Violence’. This legislation has widened the scope of domestic violence and now it can be broadly related to human rights. The definition contains physical, mental, economical and sexual violence suffered by large section of women and entitles them to claim protection from the courts. Section 494 of IPC has been proved insufficient for women protection, hence this Act was enacted for effective protection of rights of women guaranteed by Constitution i. e. Equality. Definition of ‘AGGRIEVED PERSON’ is equally wide which not only covers the legally wedded wife but also woman who is the sexual partner of the male, the daughter, mother, sister, child widow or any women residing in the house of the respondent.

Relationship in the nature of marriage provides remedy to those women whose marriages may be void or invalid in the eyes of law and protection of women who are live- in-relationships. In Aruna Parmod Shah v. UOI long periods of cohabitation between a men and women raise a presumption of marriage.

The concept of shared household means a household where the aggrieved person lives or had lived in a domestic relationship either singly or along with respondent and includes a household owned or rented. Granting supremacy to the rights of residence of women, the Delhi High Court held that a woman can never be charged with trespass if she insists on staying with her husband in a house taken or rented by the husband. Supreme Court judgement on SR Batra V. Taruna Batra constitutes rights of a wife to live in husband’s house. This is most important judgement since even today there is lot of misunderstandings about rights of women on their husbands/in-laws property/house. It was held right is available to a woman only against her husband and not against in-laws. Mother-in-laws house does not become shared house. It only meant house owned or rented by husband only.

There are various reliefs that be granted under this ACT. The magistrate if satisfied that the domestic violence has taken place, can pass the protection order in favor of the aggrieved person and prohibit the respondent from committing any violence. Such order would be in operation till the aggrieved person applies for discharge and the order can also be altered, modified and revoked. One of the most important feature of the Act is that women’s right to secure housing. This right is secured by a residence order passed by court. The Act provides that if an abused woman requires, she has to be provided an alternate accommodation and her maintenance has to be paid by her husband or partner.

The right of a divorced woman to residence in the shared house would depend on the terms and conditions of the divorce order as held in B. R. Achala V. S appi Reddy and Ors.

Under section 20, a woman can claim maintenance or monetary relief to meet the expenses incurred. It may include loss of earnings, medical expenses and loss of property. Such relief should be adequate, fair and reasonable and according to the standard of living. She can claim the compensation for the injuries including mental torture and emotional distress caused by violent acts. In Rajsesh kurre V. Safurabhai and Ors. the court is competent to award maintenance to the aggrieved person and child of that person according to section 20. And they do not require to establish the case under section 125 of CRPC. Section 21, provides the magistrate can give the custody of the child /children to the aggrieved person and if necessary make arrangements for visit of such child/children by the respondent.

A woman has the right to the services and assistance of the protection officer and service providers arranged under the provisions of the law. She will have the right to the services of the police, shelter homes and medical establishments. She also has the right to file her complaint under section 494 of IPC along with this Act.

An application under section 12 can be filed before the Magistrate directly. An application can be filed by any aggrieved person and against the adult male against whom the aggrieved has sought relief. There is an exception that an aggrieved wife or female living in relationships in the nature of marriage can file a complaint against a relative of the husband or partner. The Act is controversial on the point whether a female can be made respondent or not. The Supreme Court in Sandhya Manoj Wankade V. Manoj Bhimrao Wankade held that female relative can also be made respondent. An application can be filed in the Court of Judicial Magistrate of the first class or the Metropplitan Magistrate within the local limits of which, the aggrieved person resides or carries on business, the respondent resides or carries on business or the cause of action has arisen. A Domestic Incident Report (DIR) should be made in the prescribed from on the receipt of domestic violence from an aggrieved person. The Magistrate takes into consideration that report while coming to an conclusion. In Ajay kamal V. Alka Sharma High Court of MP held that if the DIR is not made, it cannot quash the proceedings, hence the DIR is not compulsory. The application should be in prescribed form but the application cannot be thrown out if it is not in the prescribed format as in Milan Kumar Singh V. State of U. P.

A notice to the respondent is served after the filing of the application through the Protection Officer. The Magistrate can pass an interim order to prevent further violence by providing the immediate relief to the woman. He can also pass the exparte order if the Magistrate satisfies that domestic violence may be committed. An appeal shall lie to the Court Of Session within 30 days from the date of the order of the Magistrate. He may also at any stage may secure the services of the persons engaged in promoting family welfare for the purpose of assisting him in discharging his functions. The orders under this Act are to be enforced in the same manner as in section 125 of CRPC. The court can direct the Protection Officer to assist in the implementation of the order. A breach of protection order or of an interim order by the respondent shall be an offence. It impose penalty upto one year imprisonment or fine of Rs. 20, 000, or both. This offence is congnizable and non- bailable.

Section 32(2) provides that upon the sole testimony of the aggrieved person, the court may conclude that the offence has been committed. The Act ensures speedy justice as the court has to start the proceedings and have the first hearing within 3 days of the complaint. The Act also provides for the penalty for not discharging duty of protection officer.

Till 2005, remedies available for the victims of domestic violence in the civil court and criminal court were limited. There were no emergency reliefs available to the victims and relationships outside marriage were not recognized.

Critical appraisal of the Act: Though Act widens the concept of Domestic Violence but it does not include ‘forced sex’ or ‘ sex without the wife’s consent’. This Act had been adopted from US Act where there are nuclear families. Woman’s right to demand accommodation only in husband’s house is wrong. There is no provision if a female files a false against the males as females can’t be made respondents according to this act. It is always not the fault of men if there is distressed marriage. No where is mentioned the violence against mother-in-law, they can be the victims of violence in the hands of daughter-in-laws. Further the provision of divorce also not been here. The Act relieved the women to a wide extend but should be improved in various context.