What qualifies as Domestic Violence?

February 22nd, 201811:31 pm @    


 

[If you are a victim of domestic abuse or need to help a woman who is a victim, please follow this link to Mightylaws’s article which tells you how to file a complaint against Domestic Violence. ]

Violence against women has plagued our society for a very long time and it is not a new phenomenon. It is a reflection of our pseudo-civilized society. Violence in the context of women is, any act of gender based violence which results in physical, sexual or psychological harm or suffering to a woman, including threats of such acts, coercion or arbitrary deprivation of liberty, whether in public or private life.

The violence can manifest itself into physical, emotional, sexual, verbal or economic abuse. Moreover, violence acts as an obstruction in the realization of equality, justice and development of women globally. Violence against women has been recognized as a manifestation of historically unequal power relation between men and women, which has led to women being dominated over and discriminated by men.

Women who are identified, as a vulnerable group within a society, like children and indigenous people are exposed to a wide description of gender specific violence, like rape, sexual abuse, child marriage, prostitution, trafficking, feticide, infanticide, cruelty etc. An explosive problem within this broad semblance of violence and barbarity is, where women are subjected to violence within their homes and families. This is what is popularly known as domestic violence or spousal violence or intimate partner violence. Therefore, domestic violence is a predicament involving violence and savagery being meted out to a woman by other male or female members of the family, alike. Thus, domestic violence against a woman is any form of bodily injury or harm which endangers a woman’s health, life, security or well being, where the violence is in the form of physical, sexual, emotional, verbal or economic abuse.

Following are certain undeniable acts that are recognized under criminal and civil law as offences of domestic violence against women:

  • Discrimination of women.
  • Alienating self acquired property of a woman fraudulently.
  • Cruelty, both physical and mental by husband or his relatives.
  • Refusal to have sex.
  • Insulting a woman by using abusive and offensive language.
  • Neglecting the children.
  • Ill-treating the children in front of the mother.
  • Denying mother access to her children causing mental agony.
  • Indulging in extra marital affair or adultery.
  • Bigamy
  • Wrongfully confining or restraining the woman and not allowing her to physically go beyond certain circumscribed limits.
  • Denying access to food.
  • Abetting suicide by instigating, conspiring or intentionally aiding such an act of suicide.
  • Dowry death by subjecting a woman to cruelty or harassment in relation to unlawful demand for property or valuable security.
  • Sexual intercourse by a man with his wife during judicial separation without her consent.
  • Rape, sodomy or sexual assault.

All these divulged offences, which are gender specific violence, specifically targeting women amount to a gross violation of a woman’s basic fundamental right to equality under Article 14 & 15 of the Constitution and her right to life and live with dignity and integrity under Article 21 of the Constitution.

How does law protect women from Domestic Violence?

The issue of domestic violence was widely prevalent in our society, but remained invisible in the public domain. The civil law did not address the issue in its entirety. Therefore, the legislature acknowledged the rights guaranteed under Article 14,15 & 21 of the Constitution and brought forth a remedy in civil law to protect women from being victims of domestic violence and to prevent the occurrence of domestic violence in the society and thereby enacted The Protection of Women From Domestic Violence Act, 2005.  

The Act provides for a more effective protection of the rights of women guaranteed under the Constitution who are victims of violence of any kind occurring within families. The Act does not restrict its application to married women but it also includes within its ambit women who are in a live-in relationship with a male partner i.e. in a relationship in the nature of marriage. Therefore, the Act provides a remedy to a married woman or a woman who is in a relationship in the nature of marriage, who is or has been in a relationship with the abusive husband or male partner and lived in a shared household. The Act further enables a married woman or a female partner who is or has been in a relationship in the nature of marriage to file a complaint against the female relatives of the husband or the male partner.

Domestic violence, which is defined under Section 3 of the Act, is not an offence per se. Therefore, no punishment can be prescribed for an act of domestic violence, even though the term ‘violence’ has a connotation of criminality to it. Instead the Act provides a remedy in civil law to an aggrieved person in the form of preventive measures and interim reliefs to keep a check on instances of domestic violence within families. The Magistrate is empowered under the Act to pass a protection order, residence order, provide for some monetary relief, grant temporary custody of children to the aggrieved person or pass an order directing the respondent to pay compensation for the injuries, including the mental trauma and emotional distress caused by the acts of domestic violence by him to the aggrieved woman.

Therefore, the Act being a beneficial piece of legislation, the court should adopt a construction, which would advance the parliamentary intention. Moreover, the Act aims to safeguard the interest of women and also lays emphasis on preserving the integrity and dignity of women who are burdened with complex socio-economic problems. The Act deals with domestic violence regardless of the religion of the parties and thus, adopts a very secular approach in addressing the rights of women across every religion.

 

[If you are a victim of domestic abuse or need to help a woman who is a victim, please follow this link to Mightylaws’s article which tells you how to file a complaint against Domestic Violence. ]

Article by

Anasuya is pursuing LL.M from Faculty of Law, Delhi University and intends to enter academics. Writing is something that she has always cherished and a medium through which she believes that one can communicate and reach out, especially in law which is such a complex, dynamic and multifaceted subject.

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