Domestic violence is defined when victims including anyone, despite external identities which differ from citizen to citizen1. Domestic violence was initially known as wife abuse, Victims of domestic violence include:
- Sexual/Dating/Intimate partners
- Family members
The National Family Health Survey (NHFS) data shows that almost 30% of Indian women have been abused in some way or the other by their husbands at some points of their life.
Thirty-one percent of respondents in NFHS (Round 3, 2005) – somewhat 20,000 women –complained that they were sufferers of domestic violence. Surprisingly, almost 75% did not look for assistance from anyone.2Instances of reporting to the police amplifies more than two folds when the cases of domestic violence are severe. Ergo, even then only 1.5% of women go to the police.
The ethnographic data evinces, that of the women becoming the sufferers of severe atrocities – ranging from broken bones, bruises to burns – none approached the police to report violence except in one instance where a woman sought police help not for battery, but the abduction of her toddler son by her husband.
Many have a sceptical attitude towards the working of police, that unless bribed they won’t work and that seeking police intervention would tarnish their reputation in the society.
The extent to which women approached multiple sources of help is quite scanty. Of all women experiencing domestic violence, 26% seek help from at least one source, and 7% seek help from more than one sources. Many women in the rural areas continue to bear the atrocities inflicted upon them because they have nobody to rely on except for their husband, so they accept their fate and do not report to the authorities concerned.
- RIGHT TO BE FREE FROM VIOLENCE:
Every citizen in the country has the right to be free from violence at any point in time. This is because everyone is equal despite age, colour, race, caste, sex. Everyone deserves a peaceful life. This right is applicable from women and children who undergo domestic violence as well.
- RIGHT TO DIGNITY:
The Constitution provides personal liberty to all persons. It includes, all the dimensions of life which makes a person’s life purposeful, complete and provides a reason for them to live.3 The human life has its reason and there is no reason why life should not be enjoyed with permitted legal pleasures.
- RIGHT TO SHELTER:
The need of human is different from that of an animal. For animals it is about the safe guarding of the body, whereas for a human being it is the residing The Constitution aims at fulfilling the development of every child. The shelter does not have to satisfy the features of a luxurious houses, but it should be mud proof and fire proof. This is the basic shelter any being requires to run a life. The Court held that the right to shelter is a fundamental right to citizens of the nation and it was looked into Article 21 of the Constitution. The right to shelter serves as an vital right to make life function naturally.4
WHAT REMEADY DOES THE LAW PROFFER?
The Indian parliament was well cognisant of the quantum of atrocities faced by women. Hence, in order to put the kibosh on domestic violence, the protection of women from Domestic Violence Act 2005 was created. This act has the women and their concern in its fulcrum. Prior to the formulation of this exemplary piece of legislation, women had to approach the courts under IPC (498-A) which did not even make a mention of “domestic violence”. Further, the women had to leave the matrimonial place in fear of what might transpire out of retaliation by the husband. By the virtue of section 17 and section 19 of this act, women can continue to stay in the matrimonial house and file a complaint against the preparators, thus vanquishing the fear that the rural women had that where will they sojourn till any significant decision is taken. Fear of being homeless after filing the complaint against the husband was one of the driving forces of women not complaining the offence against the husband especially in rural areas. Moreover, if the women decide on discontinuing to stay in her matrimonial home, then by the virtue of section 6, the protection officer or a service provider (NGO) may request the person in charge of any shelter home and that person in charge is under an obligation to provide shelter to such aggrieved woman. The magistrate, after hearing both the parties, if comes to a conclusion that the domestic violence has taken place or is likely to take place, then he may pass orders of protection by the virtue of section 18.
In the case of Sabita Mark Burges vs Mark Lionel Burges,5 the Bombay High Court ruled that the court may, if it deems fir, may pass orders directing the respondent from a shared household or the lone ownership of a man, a man has no right to inflict violence on the violence he lives with and if such a misadventure occurs, he may be stalled form entering the premises to secure the person of the wife and children. However, an exception of this rule is found when the respondent is a female.
Furthermore, unlike IPC which is oblivious of domestic violence, the DV ACT adduces an all-encompassing and exhaustive definition of the term under section 3. The definition is not limited to merely physical injury, but also sweepingly takes into account the emotional, economic, mental, verbal and sexual abuse. An important judgement comes of Gujrat HC which provided new dimensions to the definition of “domestic violence”, in Bhartiben Bipinbhai Tamboli vs State of Gujarat & others6 on 20 September, 2016.
In the case of Smt. Haimanti Mal vs, The State of West Bengal7 on 09.07.2019. Calcutta High Court granted Rs.1,00,000/- as compensation to the wife for psychological anguish that she had gone through owing to the behaviour of the husband.
Section 2(f) of the act defines domestic relationship. Domestic relationship relates to the relationship between two persons in which they stay in a shared household together, by the virtue of relation by marriage, blood, relation which is of similar nature to marriage, adoption or a joint family, thus the act includes but is not limited to the married woman, it also takes into its shade the mother, sister, daughter live-in relationship etc. In the case of Sadhana V. Hemant8, Bombay High Court held that if at the time of filing of petition, the wife has already been divorced, there cannot exist any domestic relationship and, divorced wife cannot be entitled for protection under Domestic Violence Act.
In the case of D. Veluswamy V. D. Patchaiammal9, the court recognised the status of women in live in relationships under the definition of “aggrieved person”. However, in the same case 5 key ingredients were laid down:
- Their demeanour must be such that they seem to be husband and wife and they must be recognized as husband and wife in the society.
- Both must be of valid and legal age of marriage.
- They must meet the qualification of entering into a matrimonial relationship.
- They must have cohabitated with consent for a significant time duration.
- They must live together in a shared household.
Shared household has been more elaborately and unambiguously defined in the judgement of S.R. Batra And Anr vs Smt. Taruna Batra10, authored by M Katju, wife would be entitled to the possession of only a share household, a shared household, interpreted in the light of section 2(s) cannot be a property belonging to mother-in-law or father-in-law. it must be a property that the husband owns or has taken on rent of belongs to aa joint family of which the husband is a member.
OBLIGATIONS OF THE GOVERNMENT
Under section 8 of the herein mentioned act, the government must appoint a protection officer in each district. The number of such officers may vary in accordance with the need. Also, such an officer, preferably must be a woman
Section 11 lays down the duties of the government. It speaks that the central and the state governments are duty bound to publicise the sections of this act in media through various conduits like T.V. radio, newspaper etc. at regular intervals in order to ensure that no woman stays oblivious to her rights. The central and state government officers must be given public sensitisation and awareness training.
To summarize, every citizen of our nation is equal as per the Indian Constitution, but unfortunately women and children are ill-treated. While the legislation has worked immensely well for the protection of women, extant poor implementation is still an issue. The protection officer is usually a part time officer or an incompetent officer who fails to do justice to the job. There is no provision in favour of male child. The legislation is highly women centric and is often exploited by cunning women, hence is often construed against the tenants of article 14. Providing such a superfluous definition of domestic violence can be used against men often times to persecute them. It also perceives that only women can be subject to domestic violence and turns a nelsons eye to the cases in which the men are aggrieved.