“The domestic violence movement (also known as the battered women’s movement) has developed over the past several decades, and the way we think about violence in the home has been changed.”
• Introduction
Domestic violence (hereinafter referred to as DV) is the most serious violation of all basic rights that a woman suffers in her own so-called protected livelihood at the behest of members of the family.
The term “Domestic Violence was legally defined in the United National Declaration on Elimination of Violence against women in the year 1993:
“Physical, sexual and psychological violence occurring in the family, including battering, sexual abuse of female children in the household, dowry-related violence, marital
rape, female genital mutilation and other traditional practices harmful to women, non- spousal violence and violence related to exploitation.”*1
India is a signatory to this declaration.
Furthermore, DV can be categorized as a pattern of behaviour which involves violence or other abuse by one person against another in a domestic setting, such as in marriage or cohabitation.
DV is broadly caused in a Heterosexual family relationship, same-sex family relation and it also includes violence against the children in a family. DV can be verbal, emotional, physical, sexual or religious which can range from subtle to coercive forms. Coercive forms include acts like female genital mutilation, acid throwing which leads to disfigurement or death, marital rape too is recognized as a form of DV but is yet to be criminalized in India. Domestic murders like honour killing, bride burning and dowry deaths too are prevalent and menacing practices in India.
Taking into consideration a global perspective, the victims of domestic violence have been overwhelmingly women, in some countries acts of DV are legally permitted and somewhat justified in cases where the woman has been involved or is suspected to be involved in infidelity. A country’s level of gender equality can be directly linked with several DV acts and incidents reported. However, as per the WHO report on “Global and regional estimates of violence against women”, the acts of DV are the most under-reported crimes worldwide.*2. Men too can be victims of DV but due to the gender-related barriers, social stigmas and male victimization practices, there are hardly any complaints registered and the same issue has been overlooked by health providers and the society in general.
Let us dwell into the historical background with an aim to explain the genesis of the domestic violence laws prevalent today in our country.
The Women's Movement has constantly worked on the path to unveil the issues faced by women and have tried to bring them out in the public domain.
The spheres of home, marriage and family are the most important institutions to understand the genesis and the root causes of domestic violence per se and have been the starting points of the reforms in pre-independence as well as the post-independence women's movement in India.*3. The women's movement in the 1970s and 1980s highlighted that atrocities on women like harassing her for dowry or beating within the household cannot be passed off as private that took place within the family.
In India, the status quo remains the same where every day hundreds of Domestic Violence cases are filed before the judiciary although there are present stringent laws in our society for the protection of women in their so-called households.
Honour Killing is one of the most rampant and menacing practice is prevalent in our country wherein as Individual is murdered by his or her family member or members for the reason of he or she has married outside the same caste, have engaged in a homosexual relation, sexual relation before marriage, starting a divorce proceeding or refusing to an arranged marriage, thereby bringing shame to the entire family and the village in general.*4
The cases of Honor Killing are mostly reported in states like Haryana, Uttar Pradesh, Rajasthan, Bihar, Jharkhand, Himachal and Madhya Pradesh where the concept of Khap Panchayats is still prevalent.
• Domestic Violence Laws in India The laws protecting women in India against Domestic Violence majorly include Section 498A, 304 B of the Indian Penal Code, Section 113A of the Indian Evidence Act, Protection of Women from Domestic Violence Act 2005 and The Dowry Protection Act 1961. With an aim to protect the interest of women against the cruelty they face behind the four walls of their matrimonial home, the Indian Penal Code,1860 (hereinafter referred to as I.P.C.) was amended in 1983 and inserted S.498A which deals with ‘Matrimonial Cruelty’ to a woman. Section 498A of the Indian Penal Code minces no words and is very blunt in its definition. It talks about “husband or the relatives of the husband subjecting the wife to cruelty”. To explain the scenario further, it means: (a). Any willful conduct which is of such a nature that it can drive the woman to commit suicide or to cause grave injury or danger to the life, limb or health of the women. (b). Harassing the women to make her do anything unlawful or illegal. FICKLENESS OF THE TERM HARASSMENT In the above two cases, the prosecution can prove a point (a) where the proof of facts related to physical or mental assault, injury can be shown to the court. Actions which have led the women to commit suicide can also be proved in due course of time with concrete evidence and proof. However, the loophole lies in point (b) where the word “harassment” has not been clearly defined nor elaborately explained in the IPC. This leaves room for misuse and subsequently misconduct. The Webster dictionary defines harassment as “to subject someone to continuous vexatious attacks, questions demands or other unpleasantness”.*5. This loophole and a blind spot in the statute which came into effect from December 1983 has been blatantly misused to unleash terror and untold misery on thousands of innocent men and their families. The husband and his family have, on numerous instances, been bullied, humiliated and extorted under section 498A where the offences registered are cognizable and non-compoundable. The men are liable to be punished for imprisonment for a term that may extend to three years and are also liable for a fine. This draconian statute has led to innumerable elderly men, women and entire families held to ransom, mostly without just cause. More often than not it is a petty domestic dispute between husband-wife. All that is required for this terror to get legitimacy is for the women to file a complaint that she has been treated with “cruelty” and has been at the subjected to “harassment”. To add to that, she can state that in the pretext of dowry her ornaments to have been taken away by the in-laws. The cops have got no option but to arrest the family members, in some cases beat them up physically under the pretext of getting the truth out. All this lasts till the family bends and accepts to cough up leviathan amounts of money for the complainant and her accomplices in an outside court settlement. However, since the missing ornaments, in false complaints, are with the women herself, gives the police another excuse to keep the “accused” in their custody with applications for further remands to the Courts on the pretext that “the investigation is still underway”. Thus, not surprisingly, the rate of conviction in cases of Section -498-A IPC is pitifully low, proving the veracity of the complaints made. “Heaven hath no wrath than love to hatred turned. Nor Hell the fury of a woman scorned” This adage holds true for a majority of the complaints made under Section 498A and 406 (criminal breach of trust) of the IPC. After this statute was enacted, there was an epidemic of complaints lodged which led to men and their families from all walks of life to be apprehended. This, after a point of time, even alarmed the high court’s and even the SC who were forced to come to the rescue of the distraught victims. In Rajesh Sharma v. State of U.P.6, the Andhra Pradesh High Court quashed the proceedings of the case as they couldn’t find anything which connected the husband and his family with the offences listed in 498A and 406. The Supreme Court in State of “State of Haryana vs Rajinder Singh*7 acquitted the person and his entire family who had been put behind bars for nearly a year as under trials. The apex court once again, Paparambaka and others vs State of AP*8 quashed a complaint where allegedly “harassment” had happened for dowry since the in-laws “did not like the bride”. But it took almost 5 years of tribulations, depletion of resources for legal costs and debts for the Paparambaka family to get to that point of justice, where one can safely say that justice delayed is justice almost denied. FICKLENESS OF THE TERM CRUELTY The definition of “cruelty” is also very ambiguous and can lead to several interpretations. The dictionary definition of “cruelty” is defined as “causing pain or suffering deliberately”. However, it is not possible to use such a simplistic definition in matrimonial cases. The accepted definition of ‘cruelty’ in matrimonial cases has been set in Priti Parihar v. Kailash Parihar*9 as “willful and unjustifiable conduct of such character of a spouse, as to cause also danger to life, limb or health, body or mind, or gives rise to apprehensions of such dangers”. However, over the years, cruelty has revealed itself in different varied circumstances. Example: In Sapatami Sarkar v. Jagdish*10, when the husband publicly called his wife a prostitute and tried to wipe the vermilion of her hair, it was held that such conduct is cruelty and wife was granted divorce. In Shanti Devi vs Raghav*11, when the wife burned her husband’s PhD thesis and also refused to cook food for her husband’s friends whom he had invited home for dinner, the Rajasthan HC found the wife guilty of cruelty to her spouse. Even threatening to commit suicide was termed by the Supreme Court as cruelty in the landmark N.G.Dastane v. S. Dastane*12. The point that the researchers are trying to make through the above examples is that the range of reasons which can be classified as cruelty can be wide-ranging. In such circumstances, it would be unjustified and unfounded for the law enforcers of IPC to file charges against someone using 498A and the term “cruelty” in its definition. In legal parlance, the court sometimes uses the test of “condonation (forgiveness)” to verify a fact. Through condonation, the court means forgiveness of the matrimonial offence and restoration of the offending spouse to the same position as he or she occupied before the offence was committed. Like for example, if the evidence shows that the spouse led a normal sexual life even after allegedly acts of cruelty committed by the spouse, then this is considered to be a clear case of condonation. Thus, a wife should not have sexual relations with her husband willingly, if she is also facing cruelty and harassment at the same time. If she goes and files a complaint about the same, the courts should ideally, using their own previous judgments as precedent, not entertain such cases based on condonation. Furthermore, in the landmark judgment of ‘Inder Raj Malik vs. Sunita Malik’*13, the term “cruelty” was defined as the “harassment of a woman to coerce her or any related persons to meet any unlawful demand for any property or any valuable security is cruelty”. The constitutional validity of Section 498A of The IPC and the DV act of 2005 was discussed in this case. In the case of Kaliyaperumal vs. State of Tamil Nadu*14, it was held by the apex court that cruelty is a common essential in offences under both the sections 304B which discusses Dowry Death*15 and 498A of IPC. It was further stated that the above-mentioned sections are mutually exclusive of each other as they are distinct offences and persons acquitted under section 304B for the offence of dowry death can be convicted for an offence under Section 498A of the IPC. The meaning of cruelty is given in explanation to section 498A and Section 304B does not contain its meaning. However, the meaning of cruelty or harassment as given in section 498-A applies in section 304- B as well. Under section 498-A of IPC cruelty in itself amounts to an offence but in order to be liable under section 304-B, the offence is of dowry death and the death must have occurred during the course of seven years of marriage. • Critical Analysis of the Cases pertaining to the Domestic Violence Laws in India. When does a person become ' equal' in the eyes of law? The definition of the phrase ' equality before the law' must be debated first. The ' gender-neutral' laws cannot be equally applied unless there is equality of socio-economic conditions. Further, in India, domestic violence us invariably associated with male hegemony. The patriarchal system leaves little room for women and children to repulse male attacks. The Hindu laws, especially many laws, do not allow women to be free and exercise their power even if they are employees or job holders earning bread for their family. Often, male unemployed holds more power than female jobholder. In such situations, the court cannot equate persons and pass the same verdicts to similar crimes citing gender neutrality. Children and women turn violent because of oppression while a male is violent due to chauvinistic behaviour. There has been a rigorous debate going on in our country where often lawyers and judges have deemed Section 498 A of the Indian Penal Code to be female favouring and are said to be misused by the women against their husbands and his family members. A bench headed by Justice Chandramauli Kr. Prasad and Justice Pinaki Chandra Ghose gave a judgment in Arnesh Kumar vs State Of Bihar*16 where the Supreme Court gave certain guidelines to be followed, and held that all state governments have to instruct its police officers that they cannot automatically arrest a person under Section 498A of IPC but only under the parameters of Section 41 of Cr PC*17. In the case of Sushil Kumar Sharma v. Union of India*18, the Apex Court said in its judgment that legislation cannot be invalidated simply because there is misuse. However, it was accepted by the court that there are indeed various cases where complaints under Section 498- A were being filed with an oblique motive to wreck personal vendetta and held that the Legislature must find ways to avoid such rampant misuse. In another case namely, Saritha v. R. Ramachandra*19 the Supreme court recognized the misuse, observed that there is a reverse trend prevalent, asked the Law Commission and Parliament to make the said offence a non-cognizable and bailable one. Supreme Court in the case of Mohd. Hoshan v. State of A.P*20 held that : The determination of guilt of cruelty of one spouse on another is a question of fact, however, various factors need to be taken into consideration. The social background of the victim, the environment, the educational background, the sensitivity of the victim concerned. Therefore, a victim’s sensitivity is a subjective term and facts must be thoroughly taken into consideration. THE DOWRY CASE The term dowry is defined by section 2 of the Dowry Prohibition Act as anything which is given either directly or indirectly by one party of marriage to another party of the marriage by parents or any other person associated with the families. The act has been amended and the word “consideration for the marriage” has been changed to “in connection with the marriage”. However, the interesting thing here to note is that the Dowry Prohibition Act does not, in any way, bar the traditional giving of presents and gifts at or about the time of the wedding as per the cultural rituals of the family members. The gifts given are considered to be as affectionate gifts given by the parents and close relatives of the bride to her. Such gifts or dowry given by the parents is, therefore, not at all within the definition of the Dowry statute. On the contrary, this practice of giving presents and gifts is an accepted and celebrated practice which finds mentions in several old Hindu scriptures and its brazen display is part of wedding celebrations in India. This loophole has led to the misuse of this provision, where a bride claims that the gifts, presents, ornaments and cash which was given voluntarily by the bride’s family to her in-laws were indeed demanded forcibly and was dowry according to the Dowry Protection Act. Thus, the argument that the application of the special provisions of the Dowry Prohibition Act would exclude the general provisions of the IPC would not even arise and in any case, have no validity.*21 Even in the cases of Dowry Deaths, where unfortunately a woman dies or commits suicide, the husband and his family are presumed to be responsible for her death. This logic sounds correct if the woman dies with any burn marks or unnatural bodily injury. However, there are several other causes, because of which the female can commit suicide, namely depression, mental illness, hypertension and all shades of other psychological maladies which afflict the entire population generally. However, even without verifying whether such conditions were a result of cruelty meted out by the husband and his family, they are “presumed” to have been responsible and charges can be framed against them. If a woman commits suicide due a severe case of acute depression, the symptoms of which are unknown to her family, and if that happens within seven years of marriage, her spouse and even her in-laws can be proceeded against by the enforcers of the law, for no apparent fault. Based on several court judgements and observations made by the hon. SC and HC there are some pointers which should be implemented in popular practice to avoid the misuse of these provisions. • Suggested Solutions 1. In cases of Sec. 304 B (IPC), the harassment of the wife for dowry must be proved thoroughly and an investigation should be initiated. 2. If there is an absence of evidence against the accused husband and his family in case of dowry death, the accused must be discharged with immediate/ relieved effect. There should be a time frame before. 3. The most practical solution that can be implemented is to make a list of the material articles, gifts received and given at the time of the marriage. Make sure that both the sides sign on it in front of authority with minimum 2 witnesses, preferably from the wife’s side. This will help in making it clear which of the things were given and received during the marriage and which were demanded later. One should also keep the marriage photographs safely. Take pictures of the wife wearing all the ornaments which were given to her as gifts during the wedding by her family or by the in-laws. A record should be maintained containing details of these ornaments as to recognize the person who has given them and on what date this transaction has happened. 4. Furthermore, records should be maintained where these ornaments and gifts will be stored and under whose supervision. Signatures of people with witnesses should be taken who are taking the responsibility of these gifts/ornaments. The reason being, in most fake dowry charges, the wife alleges that the ornaments which were given to her during the marriage have been secretly taken away and disposed of without her consent. 5. The concept of a pre-nuptial agreement is still relatively new in a country like India. However, it is one of the best solutions which should be implemented through legal channels to make the law stringent and implementation effective. 6. As shown above, the word “cruelty” is often misused to come to ambiguous conclusions. Thus, in a case where the allegation is made with respect to cruelty towards the wife, the investigation should focus on “cruelty” right from the initial stage to avoid long-drawn legal battles. 7. The fact that 498A is a cognizable, non-bailable and non-compoundable offence makes things difficult. The recurring demand is to make it into a bailable and a compoundable offence. However, till then, recording every piece of document, letters, phone conversations, payment receipts and witnesses beforehand is a must. 8. Make sure a lawyer is involved right from the marriage stage to keep a tab on all money related matters to avoid future troubles. • Conclusion In my opinion, agreeing to the fact that there have been cases where women have misused certain domestic violence laws to their benefit but in a country like India where women even till now in the status quo do not enjoy equal rights as men do although guaranteed by our constitution, hundreds of genuine domestic violence cases are filed every day in which serious offences of physical abuse, sexual abuse and dowry deaths are committed, our country needs to have such stringent laws in place to ensure deterrence and prevention of such acts of violence against women. The police in these cases play a very important role as they have the duty to determine whether such acts have been committed and present the proper evidence to the Judicial Magistrates. It is about time when we as the people of this country do realize the importance of such laws and work towards their better implementation but on the other hand, it is imperative that women's interests get all-round protection not only when it comes to the subject of Domestic Violence but also in other matters so that relief is dispensed with quickly and effectively to the victim. But it would be naive for anyone in the present times to suggest that women are always the victims and never the perpetrators OR men and their relatives are always the perpetrators and never the victims. There are enough cases at least in urban India where at the slightest provocation and even in the absence of any provocation at times, the Domestic Violence Act has been misused by women to cause insult, pain and agony to the spouse and his relatives. It is also well known that some fraudulent women-oriented NGOs, activists and lawyers promote the misuse of Domestic Violence Act as also other provisions like Sec 498 A of the IPC to inflict irreversible damage on the credibility of the man and his relatives. The answer thus lies not in not having a gender-neutral Domestic Violence law but in ensuring that quick investigation and judicial processes enable justice to the real victims in the shortest possible time. I am all for any procedure that delivers justice to the deserving victim and prevents any misuse of the legal provisions. The law must also subject the ones causing such misuse (gender-neutral here again) to severe sanctions. Minors can be excluded as perpetrators as they are generally incapacitated to act without being influenced. Being perpetrators of domestic violence is indeed a pitiful thing and if proved, the highest punishment of the land should be reserved for the same. The very basic intention behind coming out with such a legislative safeguard was to give a tool in the hands of those who are illiterate, uneducated and face several challenges while dealing with this patriarchal society. For centuries together, men have dominated women. The violence against women in a country like India needs no separate documentation or introduction. The lack of education and exposure to activities outside the household, long-standing beliefs that girls are weak and liability and a burden on the family have resulted in the pathetic sex ratio in this country. Honour killings, sex determination tests, infanticide etc. is a reality in India. In spite of that, women over the years have got empowered by leaps and bounds. The literacy rate amongst women during Independence was 8.86%, in the latest census it was 65.46%. However, the rules framed haven’t undergone changes with time. With great power comes great responsibility, unfortunately, some women have misused this power given to them by the law by using it as a tool for blackmail, deceit and mental agony. Most of the complainants these are from the urban areas where they are aware and alert about the safeguards provided to them. The rural women, who should take advantage of the DV Act are still toiling away under the thumb of patriarchy fearing getting ostracised from the community and societal shame. The above-mentioned arguments are not against womenkind as a whole, nor are they working as closet supporters of male chauvinist dominance. They are merely reflecting a reality of the 21st century India where empowered enlightened individuals are misusing the loopholes and blind spots in-laws for their private sinister motives. It is our responsibility that we remain alert to such changes happening around us and update out statutes and laws to avoid victimization of the same citizens for whom the acts have been framed. Time has come to make an honest unbiased assessment of our horse blinkered statutes which are supported by politically motivated statements churned out to appease the vote banks at large without given a flinching glance at their criminal misuse. Be it maintenance money demanded by an ex-wife, fake exorbitant dowry demand allegations made by the women and her family members, molestation charges, allegations under the archaic 498 A etc., the law has been unjust to men on several proven occasions. This paper is by no means, an attempt to malign womankind or decry them or paint them all in one colour. We, truly believe that women are more emotionally and mentally stronger than men, a fact which has been universally and scientifically accepted. However, this is just an attempt to point the collective attention towards the lopsided legal battles being fought by innocent victims. • Bibliography: 1. General Assembly (20 December 1993). 85th plenary session: Declaration on the elimination of violence against women. United Nations. 2. World Health Organization, Report on “Global and regional estimates of violence against women (2013)”, ISBN: 978 92 4 156462 5 3. SAWMYA RAY, Legal Constructions of Domestic Violence. 4. Lata Singh vs State of UP, (2006) 9 SCC 384. (India). 5. AHUJA R.C, “Domestic Violence in India, A summary report of a Multi House Hold Survey”, International Centre for Research on Women, May 2000. 6. Rajesh Sharma v. State of U.P., 2017 SCC Online SC 821, (India.) 7. State of Haryana vs Rajinder Singh, JT 1996 (3), 396 1996 SCALE (2)488, (India.) 8. Paparambaka Rosamma and Others Vs. State of A.P. (1999) 7 SCC 695 (India). 9. Priti Parihar v. Kailash Parihar, AIR 1975, Rajasthan, 52. (India). 10. Sapatami Sarkar v. Jagdish,73 Cal. WN 502 (India). 11. Shanti Devi vs Raghav, AIR Raj 1986 13 (India). 12. N.G.Dastane v. S. Dastane , AIR, 1975, SC 1534 (India). 13. Inder Raj Malik vs. Sunita Malik, 986 CriLJ 1510 (India). 14. Kaliyaperumal vs. State of Tamil Nadu, (1999) 2 Mad LJ 214 (India). 15. Section 304, Indian Penal Code, 1860. 16. Arnesh Kumar vs State of Bihar & Anr, (2014) AIR 1277 (India). 17. Section 41 of the Criminal Procedure Code. 18. Sushil Kumar Sharma v. Union of India, (2005) 6 SCC 281 (India).. 19. Saritha v. R. Ramachandra, (2002) 4 ALT 592 (DB) (India). 20. Mohd. Hoshan v. State of A.P, (2002) 7 SCC 414 21. Vinod Kumar v. State of Punjab, AIR 1982 P&H 372 (India)
By- Pranay Tuteja
Final year student, Symbiosis Law School, Pune
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