Legal provisions for domestic abuse and violence in marriage

Domestic violence is violence or other abuse in a domestic setting, such as in marriage or cohabitation. Domestic violence is normally committed by a spouse or partner in an intimate relationship against the other spouse or partner. Domestic violence can take place in different forms, i.e., physical and mental violence, economical abuse, sexual violence, verbal abuse, etc. and are covered under Protection of Women from Domestic Violence Act, 2005.  There are also provisions under the Indian Penal Code addressing such violence which essentially include dowry death or harassment, female foeticide, public harassment or trafficking.

This article focuses on the legal framework of domestic abuse and violence especially in marriages, incorporating the Protection of Women from Domestic Violence Act (PWDVA), Indian Penal Code (IPC) and the Indian Evidence Act.

LEGAL MECHANISMS

  1. PROTECTION OF WOMEN FROM DOMESTIC VIOLENCE ACT, 2005, PWDVA

PWDVA is a civil law and it protects the women from violence inflicted by spouse/family members and recognises the right of the women to live in a violence-free home. The procedure adopted in such cases is as per the Criminal Procedure Code (CrPC) for the purpose of effective actions

  • WHO CAN FILE A CASE UNDER THIS ACT?

A case can be filed by an ‘aggrieved person’. According to Section 2 of this Act, an aggrieved person is any woman who is, or has been, in a domestic relationship with the respondent and who alleges to have been subjected to any act of domestic violence by the respondent.

The aggrieved person can file complaint or applications through a protection officer or a Service Provider or the person can directly file a complaint before the Court.

Though Section 2(q) defines respondent as male, in the case of Sou. Sandhya Manoj Wankhede vs Manoj Bhimrao Wankhede, it was held that legislature never intended to exclude the female relatives from the scope of complaint and that there is no restrictive meaning to ‘relative’ and the expression is not limited to males only.

  • KEY PROCEDURES INVOLVED UNDER PROTECTION OF WOMEN FROM DOMESTIC VIOLENCE ACT
  1. The first step to be taken is to inform the Protection Officer which is given under Section 4(1). Any person who has a reason to believe that an act of domestic violence has taken place or is likely to take place may give the information to the Protection Officer.
  2. Once the complaint is received by the Protection Officer, it is the duty of the Officer under Section 5 to inform the aggrieved person about her right to file an application for obtaining relief, the availability of services by the Service Providers and Protection Officers including the medical facilities and shelter homes under Section 9 and right to file a complaint under Section 498A of Indian Penal Code.
  3. After the receipt of the complaint, it is the duty of the Protection Officer to make a Domestic Incident Report to the Magistrate and submit it to the concerned Police Officer.
  4. Once the Application is presented before the Magistrate, the Magistrate shall fix the date which necessarily would not be beyond three days from the date of receipt and shall endeavour to dispose of every application within 60 days. A notice has to be served to the respondent by the Protection Officer within two days from the date of receipt.
  5. Further, the Magistrate may ask the parties to undergo counselling.
  6. In the meantime, the aggrieved person has the right to stay in her place of abode and cannot be evicted, moreover, a part of the house can also be granted to her for personal use, irrespective of her share in the property.
  7. The Magistrate, after hearing both the parties and being satisfied that domestic violence has taken place may issue a protection order or a residence order. The Magistrate may also direct the respondent to pay monetary relief in order to meet the losses and expenses occurred.
  8. In case there is a breach of the Protection Order, the respondent will be liable with imprisonment of either description which may extend to one year of imprisonment or with fine which may extend to Rs.20,000/- or with both.

Protection of Women against Domestic Violence Act, 2005 is assuring legislation as it provides temporary and emergency relief, it also provides effective and immediate remedies to the victims.

2. PROVISIONS UNDER INDIAN PENAL CODE, 1860

Indian Penal Code contains various provisions with regards to the offences in the form of domestic violence, they are discussed as follows:

  • FORCEFUL TERMINATION OF PREGNANCY AND FEMALE FOETICIDE

Forcing the wife to terminate the pregnancy and female infanticide are also the forms of domestic violence. IPC Section 313 states that the causing of miscarriage without woman’s consent is punishable. If a man causes the death of a woman while causing miscarriage, he would be liable for imprisonment up to ten years and if the act is done without the consent of woman, he is liable for imprisonment up to ten years or for life and a fine. Section 315 and Section 316 prohibits the act of killing a female child.

All these offences are cognizable, non-bailable and non-compoundable and could be tried by the Court of Session.

  • HURT & GRIEVOUS HURT

According to Section 319, anyone who causes bodily pain, disease or infirmity to any person is said to cause hurt. Section 320 recognises a hurt as grievous if it results in loss of sight or hearing, fractures or any serious hurt that endangers life, etc. Under these sections, the person who causes hurt can be punished only if there is intent behind it. The punishment if an act is caused voluntarily shall be punished with imprisonment of either description for a term which may extend to one year, or with fine which may extend to one thousand rupees, or with both. If the hurt is caused using dangerous weapons or means, severe punishment of 3 Years or Fine or Both.

  • MISAPPROPRIATION OF WIFE’S PROPERTY

Section 405 and Section 406 deal with the problem of misappropriation of spouse’s property which is a common form of domestic violence. It states that if the husband or any of his relative dishonestly misappropriates the property or converts to his use the property belonging to his wife, it will be termed as criminal breach of trust according to Section 405 and he will be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.

  • RAPE

Section 375 of IPC, defines rape as sexual intercourse with a woman without her consent, against her will or coercing her, obtaining consent when she is intoxicated, or is of unsound mental health and if in any case, she is under the age of sixteen, irrespective of whether it is consensual or not.

Section 376A states that sexual intercourse of a man with his judicially separated wife would also amount to rape.

In the case of Nimeshbhai Desai v State of Gujarat the applicant was accused by his wife of performing non-consensual, unnatural sexual activity. It was held by the Court that the wife would not be in a legal position to initiate proceedings under Section 376 since marital rape is not recognised as a crime. The Bench, however, emphasized the fact that the husband should not violate the dignity of his wife by engaging in forceful sexual activity without her free consent.

  • MATRIMONIAL CRUELTY

Matrimonial Cruelty was introduced in the Indian Penal Code in 1983. Section 498A was introduced to protect the women from cruelty by her husband or any of his relatives. 498A is a criminal offence and the main objective behind its introduction was to combat the problem of domestic violence. It states that whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine.

Under this section, cruelty means:

  • Any conduct which drives a woman to commit suicide or any conduct which is likely to cause grave injury to life, limb or health of the woman.
  • Harassment with the purpose of coercing her or her relatives to give some property and in case of the unfulfillment of the demand for money or property, the wife is harassed by her husband or his relatives.

An offence under this section is cognizable, non-bailable and non-compoundable and it is also triable by a Magistrate First class. Bar of limitation to take cognizance of the offence under Section 468 of Cr.P.C would not apply to matrimonial offences where the allegations are specifically of cruelty and torture. Cruelty is a ground for divorce and separation under all the personal laws.

  • DOWRY DEATH

Section 304B of IPC deals with dowry death, it states that where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for dowry, such death shall be called “dowry death”, and such husband or relative shall be deemed to have caused her death. Any person who is found to be convicted under Section 304B shall be punished with imprisonment which would not be less than seven years but it may be extended to imprisonment for life.

  • ABETMENT OF SUICIDE

Section306 of IPC deals with the abetment of suicide. When a person drives another person to commit suicide with a motive, also followed by an action to drive another to commit suicide is amounted as abetment of suicide.

Whoever abets the commission of such suicide shall be punished with imprisonment of either description for a term which may extend to ten years and shall also be liable to fine.

In the case of Brijlal v. Prem Chand, the deceased wife was continuously facing ill-treatment at the hands of her mother-in-law. The husband used to constantly pester her for bringing a sum of Rs. 10,000, he also stated that her death would provide him with relief. As a result of which, she set herself on fire and sustained 80% burn injuries on her body. Therefore, it was held by the Court the accused, i.e., her husband instigated her to commit suicide and hence, he was liable under Section 306. 

3. PROVISIONS UNDER THE INDIAN EVIDENCE ACT, 1872

Indian Evidence Act, 1872 provides the presumptions in respect of matrimonial offences which generally take place in the matrimonial homes. Since it is difficult to get any evidence to prove the matrimonial offence, presumptions are necessary.

The Act deals with the presumption of abetment of suicide by a married woman under Section 113A. The Section states that if a married woman commits suicide within seven years of her marriage and if her husband or his relatives had subjected her to cruelty, it is presumed by the Court that the husband or such relative had abetted the suicide.

In the case of Anup Kumar v State, wife committed suicide within one and a half years of marriage and records revealed that the wife was in a state of mental agony because of torture by her husband, the husband was treating her with cruelty and hence presumption was attracted.

CONCLUSION

Despite the progressive and comprehensive legislations for the protection of women, viz, PWDVA and Indian Penal Code, the malpractice still prevails in the society. One of the reasons for this is the lack of education of the rights of women and the responsibilities of adult who decide to live in a permanent relationship.


— Janhavi Sakalkar intern at Ravindra Vikram Law Associates

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Force Majeure Clause in Contracts: Impact on Lease Agreements

As we grapple with the Coronavirus pandemic, it has become increasingly clear that the commercial world will suffer from an extraordinary event or circumstance beyond the control of the parties. The force majeure event has already caused substantial commercial loss and has obstructed the performance of many contracts for no fault of either party. This therefore, leads us to a discussion about the much-forgotten Force Majeure clause with focus on this contractual clause with respect to lease agreements.

‘Force Majeure’ events relieve a party from performance of its contractual obligations, without any consequential breach of the contract, provided such performance is adversely impacted by events outside the control of an affected party such as act of God, natural disaster, war, strike, lockout, epidemic, Government orders, etc. The principle of force majeure is recognized in express terms in most civil jurisdictions, and the force majeure clauses are contained within in contracts to safeguard the interests of the parties where they are unable to perform their obligations due to unforeseeable situation.

This concept has been adequately detailed in the Indian Contract Act via Section 32 and Section 56. A landmark decision clarifying this position comes in the case of Satyabrata Ghose v. Mugneeram Bangur & Co , the court in this case held that: “In deciding cases in India, the only doctrine that we have to go by is that of supervening impossibility or illegality as laid down in section 56 of the Contract Act taking the word ‘Impossible’ in its practical and not literal sense.

This was further reiterated in Energy Watchdog v. CERC, where the court reproduced a statement from the Satyabrata case: “The performance of an act may not be literally impossible but it may be impracticable and useless from the point of view of the object and purpose of the parties. If an untoward event or change of circumstance totally upsets the very foundation upon which the parties entered their agreement, it can be said that the promisor finds it impossible to do the act which he had promised to do.”

This principle was further summarized by a bench comprising of Justice P.C. Ghosh and R.F. Nariman,. Some key principles that were laid down by the Hon’ble Court are as hereunder:

  • If an express or implied ‘force majeure’ clause exists in a contract, the same will be exercised over and prior to the principle enshrined under Section 56;
  • Application of Doctrine of Frustration must always be with narrow limits and implication;
  • A mere rise in cost or expense does not come under the ambit of Doctrine of Frustration;
  • Doctrine of Frustration will not apply so long as the fundamental basis of the contract remains the same.

FORCE MAJEURE CLAUSE IN THE LEASE AGREEMENT

Relief from payment of rent due to a ‘Force Majeure’ event can only be availed if such a relief is explicitly provided under the lease agreement. In most of the, lease agreements excuse the lessees from payment of rent during a Force Majeure event if there is a damage or destruction of the property leading to its unavailability for use by the lessee, however, they do not provide blanket waiver from payment of lease rentals on occurrence of every Force Majeure event. As Force Majeure is a contractual right, the express wordings of the clause have to be carefully assessed and the lessee cannot, as a matter of right, invoke non-payment due to a Force Majeure event in the absence of a supporting clause and/or a specific rent waiver agreed under the contract. If the lease agreement does provide for stoppage of rent or suspension of all obligations during a Force Majeure period without any qualifications or riders, then the lessee should immediately exercise its right by issuing a letter to the lessor invoking Force Majeure event and intimating cessation of its obligation to pay lease rental during the period the Force Majeure event continues.

FORCE MAJEURE CLAUSE IF NOT IN THE LEASE AGREEMENT

While Force Majeure is not specifically covered under the Indian Contract Act, reference to the concept of force majeure can be derived from Section 32 and Section 56. If the contract itself either impliedly or expressly contains a term, according to which performance would stand discharged under certain circumstances, the dissolution of the contract would take place under the terms of the contract itself and such cases would be dealt under Section 32. If, however an untoward event or change of circumstance totally upsets the very foundation upon which the parties entered into their agreement, the contract can be held to be frustrated under Section 56 of the IC Act. But it is pertinent to note that Section 56 is applicable only if the contract does not have an explicit Force Majeure clause.

The Indian courts have generally taken the view that Section 56 is not applicable when the rights and obligations of the parties arise under a transfer of property under a lease. The doctrine of frustration belongs to the realm of law of contracts and it does not apply to a transaction where, not only privity of contract but a privity of estate has also been created in as much as lease is the transfer of an interest vis-à-vis the immovable property within the meaning of Section 5 of the Transfer of Property Act, 1882.

In view of the foregoing, in the absence of a Force Majeure clause under the lease agreement, it is unlikely that a lessee can claim frustration of contract (which eventually leads to termination of the contract and may, therefore, not assist the lessee in the long run) and seek waiver of lease rental as consequence of a Force Majeure event.

CONCLUSION

However, given the unprecedented nature of the widespread outbreak of COVID-19 and/or the response of the government across the globe, it is highly probable that COVID-19 would constitute a force majeure event under many contracts having such clauses. The official memorandum dated 19-02-2020 headed as “Force Majeure Clause (FMC)” issued by Ministry of Finance, Department of Expenditure Procurement Policy Division clearly states that spread of Coronavirus (COVID-19) should be considered as a case of natural calamity and FMC may be invoked, wherever considered appropriate, following the due procedure.In the context of the COVID-19 outbreak, the issues that will arise for consideration are whether alternative ways of performing the contractual bargain were possible or not and were explored or not; whether the contractual bargain could have been performed albeit with difficulty or at a higher cost; or whether a party’s non-performance is rather and in fact, attributable to some other delay or deficiency. Further, the party claiming relief from performing the contract would also be required to notify the other party of the occurrence of such an event and its efforts to remedy the same. In contracts bereft of any force majeure clause, the parties may resort to the statutory provisions of Section 56 of the Indian Contract Act, as already stated hereinbefore.

— Ananya Agarwal intern at Ravindra Vikram Law Associates

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Overview of Data Privacy laws in India

Privacy implies not to interfere in the interest of others. The technological advancement has led to privacy becoming a cause of concern for every individual. Data protection stresses individual liberty which comes under menace by the interference of a stranger. The access of a stranger to the individual’s activity by any means needs to be ceased by law. The Constitution of India has highlighted the importance on the enjoyment of rights rather than the compliance of duty. A rights-based approach is considered for data protection.

There is no explicit legislation in India related to data protection nor is it a party to any convention on the protection of personal data. Nevertheless, India is a party to many international declarations and conventions including the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights, which acknowledge the right to privacy. The data protection issue attracts the Right to Privacy, Right to Information, Information Technology, Indian penal Code, National Security, Intellectual property, Corporate Affairs, and much more. The constitutionality of privacy & data protection has been provided considerable significance in these recent days. The effective enforcement of the current legal framework is essential for the proper protection of privacy issues.

India has not yet ratified any particular legislation on data protection but, the Information Technology Act (2000) or referred to as the IT Act, 2000 was amended to include Sections 43-A and Section 72-A that have a strong bearing on the legal regime for data protection. Section 43-A and Section 72-A of the IT Act came into force on 27 October 2009. These provide for the right to compensation for improper disclosure of personal information.

Section 43-A reads as follows:

“Where a body corporate, possessing, dealing or handling any sensitive personal data or information in a computer resource which it owns, controls or operates, is negligent in implementing and maintaining reasonable security practices and procedures and thereby causes wrongful loss or wrongful gain to any person, such body corporate shall be liable to pay damages by way of compensation to the person so affected.”

Section 72-A provides for punishment of disclosure of information in breach of a lawful contract. It reads as follows:

“Save as otherwise provided in this Act or any other law for the time being in force, any person including an intermediary who, while providing services under the terms of lawful contract, has secured access to any material containing personal information about another person, with the intent to cause or knowing that he is likely to cause wrongful loss or wrongful gain discloses, without the consent of the person concerned, or in breach of a lawful contract, such material to any other person, shall be punished with imprisonment for a term which may extend to three years, or with fine which may extend to five lakh rupees, or with both.”

The central government has also issued the Information Technology (Reasonable Security Practices and Procedures and Sensitive Personal Data or Information) Rules, 2011 under Section 43-A of the IT Act. These came into effect on 11 April 2011. The Rules have inflicted some additional obligations on commercial and business entities in India regarding the collection and release of sensitive personal data or information which have some similarities with the GDPR (General Data Protection Regulation) and the Data Protection Directive

The government has introduced a biometric-based unique identification number for residents of India known as ‘Aadhaar’. Aadhaar is regulated by the Aadhaar (Targeted Delivery of Financial and Other Subsidies Act) 2016 and rules and regulations issued in the Act. The Act came into force on 12 September 2016. Entities in regulated sectors such as financial services and telecom sectors are subject to obligations of confidentiality under sectoral laws which necessitate them to keep customer personal information private and use them for prescribed purposes or only in the manner settled with the customer.

Internet Security and Personal data are also protected through secondary safeguards developed by the courts under common law, principles of equity, and the law of breach of confidence. In the landmark case of Justice K.S. Puttaswami & another Vs. Union of India, the judgment of which was passed in August 2017, the Supreme Court of India has recognized the right to privacy as a fundamental right under Article 21 of the Constitution as a part of the right to “life” and “personal liberty”. “Informational privacy” has been accepted as being a facet of the right to privacy and the court held that information about a person and the right to access that information also needs to be protected for privacy. The court stated that every person should have the right to control the commercial use of his or her identity and that the “right of individuals to exclusively commercially exploit their identity and personal information, to control the information that is available about them on the internet and to disseminate certain personal information for limited purposes alone” emanates from this right. This was the first time that the Supreme Court expressly credited the right of individuals over their data. Fundamental rights are enforceable against the state and its instrumentalities and the Supreme Court in the same judgment recognized that enforcing the right to privacy against private entities may require legislative involvement.

Consequently, the Government of India established a committee to propose a draft statute on data protection. The committee recommended a draft law and the Government of India has issued the Personal Data Protection Bill, 2019 based on the draft proposed by the committee. This is the country’s first bill on the protection of personal data and will repeal Section 43-A of the IT Act.

The Bill encompasses mechanisms for the protection of personal data and recommends the setting up of a Data Protection Authority of India for the same. The Bill aims to:

“to provide for protection of the privacy of individuals relating to their personal data, specify the flow and usage of personal data, create a relationship of trust between persons and entities processing the personal data, protect the fundamental rights of individuals whose personal data are processed, to create a framework for organisational and technical measures in processing of data, laying down norms for social media intermediary, cross-border transfer, accountability of entities processing personal data, remedies for unauthorised and harmful processing, and to establish a Data Protection Authority of India for the said purposes and for matters connected there with or incidental thereto.”

A combined parliamentary committee is presently considering the PDP Bill and a revised draft of the PDP Bill is anticipated to be issued in 2020. The PDP Bill would then have to be passed by both houses of Parliament and be notified in the official gazette before it becomes a law.

Other general legislation impacting data protection:

  1. The Copyright Act (1957):  Since the Act provisions intellectual property rights in diverse kinds of creative work including literary works, and the term “literary work” legally comprises computer databases, copying a computer database, or copying or distributing, a database could amount to copyright infringement under the Act. Clearly, there is a difference between database protection and data protection.  Database protection protects the creative investment in collecting, presentation and verification of databases, while data protection aims to protect the privacy of individuals by restricting access.
  • The Indian Penal Code (1860):  This could be used to prevent theft of data.  The offences of theft and misappropriation theoretically apply only to movable property under the IPC, but the term “movable property” has been defined to include corporeal property of every description except land or property that is permanently attached to the earth.
  • The Indian Constitution:  Article 21 of the Constitution protects an individual’s right to life and personal liberty.  The Supreme Court of India, in a nine-judge bench decision in August 2017,  held that citizens enjoy a fundamental right to privacy that is inherent to life and liberty. 

In addition to the above, invasion or breach of privacy also results to an action in tort. Also, there are some sector-specific legislation that influences data protection.

The National Association of Service & Software Companies (NASSCOM), which is a non-profit industry association and the apex body for the Indian IT BPM industry leads the private sector initiatives to protect and boost data privacy regulation in the country.

The Business Process Outsourcing Units implement self-regulatory processes, such as the BS 7799 and the ISO 17799 standards, to regulate information security management and restrict the quantity of data made accessible to employees.

The Reserve Bank of India issues guidelines, regulations and circulars from time to time, to maintain the secrecy and privacy of client information, and it also established a body called the Banking Codes and Standards Board of India to develop a set of voluntary norms which banks must enforce themselves through internal grievance redressal mechanisms within each bank.

The Medical Council of India has set out the Indian Medical Council (Professional conduct, Etiquette and Ethics) Regulations, 2002 (Code of Ethics Regulations, 2002).  These rules administer various issues, including doctor-patient confidentiality, the collection of personal data from patients, issues of consent, and the extent to which invasive procedures may be conducted.

These regulations apply supplementary to the IT Rules. Although they provide a certain degree of security, the lack of legislative enforcement and foresight mean that they are enforced in varying degrees by each institution and do not come with guaranteed parliamentary sanction.

The several agencies performing cyber security operations in India, such as the National Technical Research Organisation, the National Intelligence Grid and the National Information Board, require robust policy and legislative and infrastructural support from the Ministry of Electronics and Information Technology, and from the courts, to enable them to do their jobs properly.

— Simran Khurana intern at Ravindra Vikram Law Associates

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