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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