Professional Documents
Culture Documents
1
Domestic Violence in Marriage: in the light of theories of Feminist Jurisprudence,
http://www.legalserviceindia.com/article/l263-Domestic-Violence-in-Marriage.html
2 th
Little Oxford English Dictionary, 6 impression2007, Oxford university press, p.785.
1
By Dr. Tabrez Ahmad , Poorva Khandekar , Kundan Kumar Ojha , Ipsita Mohanty , Priyanka Biswas
(c) has the effect of threatening the aggrieved person or any person related to her by any conduct
mentioned in clause (a) or clause (b); or(d) otherwise injures or causes harm, whether physical or
mental, to the aggrieved person.3
Since, it has already been stated that it is the violence which takes place within the realm or
territory of house; it is palpable that the victims of such a violence will be the family members.
That is why it is to be said that domestic violence is an abuse which manifests itself when a
spouse or a family member violates another physically or psychologically. 4
Domestic Violence can take place between husband and wife, child and parent, people of same
sex as well as the people of different sex. 5 Overall it can be said to be a preliminary stage of a
crime of power and abuse. 6It is not consensual but rather a pattern of behavior used by an
individual to maintain coercive control over the other. 7
3
Protection of Women from Domestic violence act, 2005.
4
Domestic violence , http://www.domesticviolence.in/
5
Domestic violence ,http://www.domesticviolence.in/
6
Domestic Violence in Marriage: in the light of theories of Feminist Jurisprudence,
http://www.legalserviceindia.com/article/l263-Domestic-Violence-in-Marriage.html)
7
Ibid 6.
8
Domestic Violence, http://www.domesticviolence.in/
9
Domestic violence in India, http://www.helplinelaw.com/docs/violence.php
2
By Dr. Tabrez Ahmad , Poorva Khandekar , Kundan Kumar Ojha , Ipsita Mohanty , Priyanka Biswas
Physical violence
The word physical means Something related to body rather than mind or relating to things that
you can see hear or feel.10 Thus, physical violence is that violence or exercise of power which
has harmed the body. It is the intentional use of physical force with the potential of causing
bodily injury, harm, disability, or death.
The Protection of Women from Domestic Violence Act, 2005 defines sexual abuse as-
Any act or conduct which is of such a nature so as to cause bodily pain, harm, or danger to life,
limb or health or compare the health or development of the aggrieved person and includes
assault, criminal intimidation and criminal force. Physical acts such as hitting, slapping,
pushing, kicking, threatening to harm constitutes physical abuse.
10
Oxford pocket English dictionary,6th impression2007, Oxford university press,p.513.
11
What is financial or economical abuse, http://www.peoples-health.com/financial_abuse.htm
3
By Dr. Tabrez Ahmad , Poorva Khandekar , Kundan Kumar Ojha , Ipsita Mohanty , Priyanka Biswas
Domestic Violence in India: Will Law Alone Change the Situation?
necessities for the aggrieved person and her children, if any, stridhan, property, jointly or
separately owned by the aggrieved person, payment of rental related to the shared household and
maintenance;
(b) disposal of household effects, any alienation of assets whether movable or immovable,
valuables, shares, securities, bonds and the like or other property in which the aggrieved person
has an interest or is entitled to use by virtue of the domestic relationship or which may be
reasonably required by the aggrieved person or her children or her stridhan or any other property
jointly or separately held by the aggrieved person; and (c) prohibition or restriction to continued
access to resources or facilities which the aggrieved person is entitled to use or enjoy by virtue of
the domestic relationship including access to the) shared household. 12
Verbal abuse
Verbal abuse is giving its meaning itself as such type of abuse which hurts somebody verbally or
we can say that violence which is committed by the words either written or spoken Is called
verbal abuse. It is also called as revealing is a form of abusive behavior involving the use of
language. It is a form of profanity in that it can occur with or without the use of expletives. 15 I
12
What is financial or economical abuse (http://www.peoples-health.com/financial_abuse.htm)
13
Sexual abuse(http://education.qld.gov.au/actsmartbesafe/violence/sexual.html)
14
Bare act, protection of women from doemstic vikolence act(http://www.helplinelaw.com/docs/)
15
Verbal abuse in relationship (http://www.verbalabuse.com/3.shtml)
4
By Dr. Tabrez Ahmad , Poorva Khandekar , Kundan Kumar Ojha , Ipsita Mohanty , Priyanka Biswas
Domestic Violence in India: Will Law Alone Change the Situation?
16
Bare act, protection of women from doemstic vikolence act(http://www.helplinelaw.com/docs/
5
By Dr. Tabrez Ahmad , Poorva Khandekar , Kundan Kumar Ojha , Ipsita Mohanty , Priyanka Biswas
Domestic Violence in India: Will Law Alone Change the Situation?
6
By Dr. Tabrez Ahmad , Poorva Khandekar , Kundan Kumar Ojha , Ipsita Mohanty , Priyanka Biswas
Domestic Violence in India: Will Law Alone Change the Situation?
Projecting blame:
Abusers often engage in an insidious type of manipulation that involves blaming the victim for
the violent behavior. Such perpetrators may accuse the victim of "pushing buttons" or
"provoking" the abuse. By diverting attention to the victim's actions, the perpetrator avoids
taking responsibility for the abusive behavior. In addition to projecting blame on the victim,
abusers also may project blame on circumstances, such as making the excuse that alcohol or
stress caused the violence.
7
By Dr. Tabrez Ahmad , Poorva Khandekar , Kundan Kumar Ojha , Ipsita Mohanty , Priyanka Biswas
Domestic Violence in India: Will Law Alone Change the Situation?
It is equally important to acknowledge that abusers also possess positive qualities. There are
abusers who are remorseful, accept responsibility for their violence, and eventually stop their
abusive behavior. Perpetrators are not necessarily "bad" people, but their abusive behavior is
unacceptable. Some perpetrators have childhood histories where they were physically or sexually
abused, neglected, or exposed to domestic abuse. Some suffer from substance abuse and mental
health problems. All of these factors can influence their psychological functioning and contribute
to the complexity and severity of the abusive behavior. Perpetrators need support and
intervention to end their violent behavior and any additional problems that compound their
abusive behavior. Through specialized interventions, community services, and sanctions, some
abusers can change and become nonviolent.
Authoritarianism
Perpetrators can be rigid and demanding and rigid with their children. They often have high and
unrealistic expectations and expect children to obey without question or resistance. These
parenting styles are intimidating for children and alter their sense of safety around the
perpetrator. This perpetrator are more likely to use harsher form of physical discipline which can
make the children increasingly vulnerable to becoming target of domestic violence.
8
By Dr. Tabrez Ahmad , Poorva Khandekar , Kundan Kumar Ojha , Ipsita Mohanty , Priyanka Biswas
Domestic Violence in India: Will Law Alone Change the Situation?
leaves little time to engage the children. Unfortunately, the perpetrators physical and emotional
unavailability can produce unrequited feelings of anticipation and fondness in the children who
eagerly await their attention.
Self centeredness
Some perpetrators use their children to meet their own emotional needs. Perpetrators may
expect their children to be immediately available only when they are interested and often
overwhelm them with their problems. This can result in children feeling burdened and
responsible for helping their parent while their own needs are neglected.
Manipulation
To gain power in the home, perpetrators may manipulate their children into aligning against the
victim. Abusers may make statements or exhibit behavior that confuse the children regarding
who is responsible for the violence and coerce them into believing that they are preferable
parent. Abusers also may direct or indirectly use their children to control and intimidate the
victim. Perpetrators sometimes threatened to abduct, seek sole custody of, or physically harm the
children if the victim is not complaint. Sometimes these are threats exclusively and the abuser
does not intend or really want to carry out the action, but the threats are perceived as real.
9
By Dr. Tabrez Ahmad , Poorva Khandekar , Kundan Kumar Ojha , Ipsita Mohanty , Priyanka Biswas
Domestic Violence in India: Will Law Alone Change the Situation?
Police may not treat domestic abuse as a crime, but, rather, as a domestic dispute. Courts may
not award severe consequences, such as imprisonment or economic sanctions. Clergy or
counselors may have the attitude that the relationship needs to be improved and that the
relationship can work, given more time and effort. People may have the attitude that the abuse is
the fault of the victim, or that abuse in normal part of a marriage or domestic partnerships.
Gender- role socialization and stereotypes condone abusive behavior by men.
Victims of domestic violence suffer from low self-esteem and psychological disorders-
Some people believe that victims of domestic violence are mentally ill or suffer from low self-
esteem. Otherwise, it is thought that they would not endure their views. In a fact a majority of
victims does not have mental disorders, but may suffer from psychological effects of domestic
violence, such as post traumatic stress disorder or depression. However, there is little evidence
that low self-esteem is a factor for initially becoming involved in an abusive relationship. In
reality some victims of domestic violence experience a decrease in self-esteem because their
abusers are constantly degrading, humiliating and criticizing then, which also makes them
vulnerable to staying in the relationship.
Legal actions that can be initiated against the wrong doer of domestic violence
Innumerable women who silently suffer assaults and abuses everyday inside every second home
across the country can now perhaps look forward to a remedy that protects their vulnerable
11
By Dr. Tabrez Ahmad , Poorva Khandekar , Kundan Kumar Ojha , Ipsita Mohanty , Priyanka Biswas
Domestic Violence in India: Will Law Alone Change the Situation?
position. The phenomenon of domestic violence is widely prevalent but has remained largely
unseen.
Though both the criminal and legal remedy for domestic violence perpetrated on women existed
under different sections of the Indian Penal Code (IPC), the civil law did not address the issue in
its entirety.
Extensive consultations among representatives of several NGOs such as the Lawyers' Collective,
the National Human Rights Commission, the National Commission for Women and the
Ministries of Home Affairs, Health & Family Welfare, Social Justice & Empowerment,
Elementary Education, Justice and Legal Affairs & Legislative Department during the past few
years led to the drafting of the bill, which seeks to meet the existing gap in the legal framework.
Giving details, a Ministry official told this correspondent that while giving explicit recognition to
the legislative intent, the bill will also dovetail with the liberalized provisions for maintenance
under Section 125 of the IPC.
The new legislation - which is in addition to the existing criminal law - would empower courts to
grant protection orders to victims of domestic violence and provide other relief. It also includes
new concepts such as ``civil wrong of domestic violence, the right to reside in a shared
household and the right to protection against domestic violence by obtaining protection orders
including monetary relief and custody of children orders''.
12
By Dr. Tabrez Ahmad , Poorva Khandekar , Kundan Kumar Ojha , Ipsita Mohanty , Priyanka Biswas
Domestic Violence in India: Will Law Alone Change the Situation?
It provides for rights of women to secure and reside in her matrimonial house or shared
household whether she has a title by the order of the magistrate.
They say society is basic to civilization and family is the unit of society, for which marriage
forms the basis. But, the way the government has formulated the marital laws, heavily lopsided
to one particular gender (the female gender), the institution of marriage is sure to break down to
an unnatural death sooner or later. The Indian Penal Code (IPC) 498A (cruelty by husbands and
relatives on married woman); Domestic Violence Act 2005, have though been conceived with an
intention to provide protection to women, have been drafted and implemented so badly, that they
have become handy tools in the hands of unscrupulous women and their parents to harass their
husbands and in-laws.
The provisions contained within these laws are very lucrative for any person wishing to use (read
misuse) to realize nefarious designs, to resist misusing these laws. The moment a complaint
comes to a police station regarding dowry harassment, without even going into the merits of the
complaint or the process of investigation, the husbands side is arrested and made to undergo
undue harassment. Such an easy provision to get the whole family arrested with a single
complaint based on imaginary and cock and bull stories can never act as a positive catalyst in
saving a marriage. Especially, when the case is taken back if ransom is paid as demanded.
Domestic Violence Act, 2005, on the other hand, is another such legal provision, which attracts a
lot of females, exasperated with their expectations of a marriage or a live-in relationship, to file
cases under various provisions and seek relief. Moreover, it makes it mandatory for a judge to
13
By Dr. Tabrez Ahmad , Poorva Khandekar , Kundan Kumar Ojha , Ipsita Mohanty , Priyanka Biswas
Domestic Violence in India: Will Law Alone Change the Situation?
pass relief under such an Act, as only the affidavit of the complainant woman is taken as
evidence. So in short, allege and get relief is the mindset reflecting in the law. The concept of
matrimonial home is so badly drafted in it that going by pure literary sense, it qualifies any
household where the couple stayed together as a matrimonial home, granting the complainant
rights on it. It has started becoming a handy tool to evacuate senior citizens from the house of
their own earnings.
Moreover, allowing the woman to put in allegations without signature is another factor that
tempts the miss user of the law to intensify activities. Allowing the respondent to be convicted
on sole testimony by the complainant of non-compliance of Protection Orders passed, as under
Section 31, is directly violating Article 14 of the Constitution of India, which says, The state
shall not deny to any person equality before the law or the equal protection of the laws within the
territory of India. If that be so, how can sole testimony of one person be used to convict another
person?
Moreover, the Act also allows multiple maintenance litigations to be admitted, as under Section
20 and 22, heard and maintenance be granted in tandem with maintenance provisions under
Section 24, Hindu Marriage Act and 125 of the Code of Criminal Procedure (CRPC). This is
direct violation of Article 20, clause 2, which says, No person shall be prosecuted and punished
for the same offence more than once.
In addition to the above, in spite of international studies on domestic violence proving beyond
doubt that both men and women are equally prone to be victims of domestic violence, which
means the possibility of females perpetrating domestic violence cannot be ruled out. Yet, there is
no provision in the Domestic Violence Act, 2005 for men to make complaints or to make a
complaint against a woman. So a man/woman facing domestic violence at the hands of another
female have no redress to his/her concerns and will continue to suffer. Such legal provisions
lacking completeness, gender equality and compliance with the Constitution should be banned
outright as they do more harm than intended.
14
By Dr. Tabrez Ahmad , Poorva Khandekar , Kundan Kumar Ojha , Ipsita Mohanty , Priyanka Biswas
Domestic Violence in India: Will Law Alone Change the Situation?
15
By Dr. Tabrez Ahmad , Poorva Khandekar , Kundan Kumar Ojha , Ipsita Mohanty , Priyanka Biswas
Domestic Violence in India: Will Law Alone Change the Situation?
Constitutional Perspectives:
The enactment in question was passed by the Parliament with recourse to Article 253 of the
Constitution. This provision confers on the Parliament the power to make laws in pursuance of
international treaties, conventions, etc. The Domestic Violence Act was passed in furtherance of
the recommendations of the United Nations Committee on the CEDAW. The Act encompasses
all the provisions of the Specific Recommendations which form a part of General
Recommendation no.19, 1992. The Statement of Objects and Reasons declares that the Act was
being passed keeping in view the fundamental rights guaranteed under Articles 14, 15 and 21.
Article 21 confers the right to life and liberty in negative terms, stating that it may not be taken
away except by procedure established by law, which is required, as a result of judicial decisions,
to be fair, just and reasonable. The right to life has been held to include the following rights
(which are reflected in the Act), among others:
16
By Dr. Tabrez Ahmad , Poorva Khandekar , Kundan Kumar Ojha , Ipsita Mohanty , Priyanka Biswas
Domestic Violence in India: Will Law Alone Change the Situation?
17
By Dr. Tabrez Ahmad , Poorva Khandekar , Kundan Kumar Ojha , Ipsita Mohanty , Priyanka Biswas
Domestic Violence in India: Will Law Alone Change the Situation?
taken is providing innovative and efficacious remedies to enforce the same. The
conceptualization of the Act thus far is admirable. Though there are interpretations to the
contrary, the act does not extend its protection to male child.
18
By Dr. Tabrez Ahmad , Poorva Khandekar , Kundan Kumar Ojha , Ipsita Mohanty , Priyanka Biswas
Domestic Violence in India: Will Law Alone Change the Situation?
Tortuous liability arises from the breach of a duty primarily fixed by law; this duty is towards
persons generally and its breach is redress able by an action for unliquidated damages. 17
Though this definition does not fill all the lacunas in the definitions of tortuous liability but it is
the most comprehensive definition till date which has the merit of being concise and at the same
time contains elements which deserve continuing emphasis.
Most personal injury cases fall under tort law. Tort law covers a wide range of personal injury
cases including, but not limited to, cases involving car or motorcycle accidents, boating
accidents, medical negligence, and product liability.
There are three general categories of torts: intentional, negligent, and strict liability .
Intentional tort - involves an action that was carried out voluntarily and with fore-knowledge
of the wrongful or harmful consequences. Intentional torts fall into a number of subcategories
including torts against a person, property torts, dignitary torts, and economic torts. Examples of
intentional torts include battery, assault, fraud, and defamation of character.
Negligence tort - one in which the harmful action was unintentional but was brought about by
another party's unreasonably unsafe actions or a failure to act. Professional malpractice (e.g.
medical malpractice) constitutes a kind of negligence tort. Vehicle accidents often give rise to
negligence torts.
Strict liability tort, (or absolute liability), is a wrong by which the malefactor bears
absolute legal responsibility regardless of proof of negligence. For example, strict liability torts
may arise out of incidents involving toxic substances/chemicals or explosives. In pharmaceutical
litigation, a drug company may be held strictly liable for injuries caused by their products
regardless of their precautionary measures. 18
Marital Tort or Domestic tort is a wrongful act that creates the grounds for liability against a
defendant, who is called the tortfeasor. Some states allow spouses to bring torts in conjunction
with divorce actions, and many divorced or divorcing spouses now bring tort claims against each
other for misconduct that occurred during the marriage.
17
W V H Rogers, Winfield & Jolowicz Tort, seventeenth edition, Sweet & Maxwell Publication.
18
What Is Tort Law, http://www.1personalinjurylawyers.com/injury_center/tort-law.html, (accessed on: 11th
march, 2015 hrs)
19
By Dr. Tabrez Ahmad , Poorva Khandekar , Kundan Kumar Ojha , Ipsita Mohanty , Priyanka Biswas
Domestic Violence in India: Will Law Alone Change the Situation?
A marital or domestic tort is a tort between former spouses. Most jurisdictions have now
repealed the doctrine of spousal immunity, permitting spouses (usually women) to bring marital
torts (usually personal injury actions) in connection with domestic violence. Marital torts,
moreover, can be lodged in connection with intentional or negligent acts, including the
transmission of sexual diseases, psychological distress and emotional injury, slander and libel as
well as dissipation of community property.
In a marital tort, as in all torts, there must be a violation of some duty owed to the plaintiff, and
generally that duty must arise by operation of law, not merely an agreement between the parties.
Torts are civil actions arising from the conduct, deliberate or careless, of one individual in
dealings causing harm or damage to another, and they also arise as a result of intent or torts in
conjunction with divorce actions negligence.
Intentional torts, which may result in civil and criminal liability, includes such actions as assault,
battery, false imprisonment, libel, slander, intentional infliction of emotional distress, invasion of
privacy, wrongful death, interference with business. Negligent conduct results from a deviation
from the standard of care a reasonable person is expected to exercise.
In marriage and family law, alienation of affection and interference with family relations (in acts
associated with the parental alienation syndrome (PAS)) may be grounds for an intentional tort.
A no-fault and uncontested divorce does not include marital torts.
Conclusion:
Domestic violence is one of the severest forms of violence against women. It cannot be
controlled only by the help of laws. As Most of the cases of abuse go unnoticed or unreported.
Society and traditions, in some cases, sanction abuse by creating conditions for the victims to
accept violence as a norm. Countries where domestic violence is most prevalent either lack
proper legal frameworks to proscribe abuse or mechanisms to implement laws against abuse.
Male population is generally apathetic to the consequences of this abuse even when many among
them would not like to indulge in such a practice. There is no proper education of sexual
relations as well as of responsibilities of adults who decide to live in a permanent relationship.
20
By Dr. Tabrez Ahmad , Poorva Khandekar , Kundan Kumar Ojha , Ipsita Mohanty , Priyanka Biswas
Domestic Violence in India: Will Law Alone Change the Situation?
Any such education would inevitably include the education of the rights of women and children
as individuals.
Suggestions:
The following measures are suggested to solve the inter-related issues of domestic violence.
There should be mass awareness targeting male members of society. In my country, media has
played a great role in deepening an aversion for violence particularly domestic abuse against
women. In addition, religious scholars may also play a great role in strengthening the
understanding against abuse.
Human Rights education must be made a compulsory part of curriculum through secondary
school.
Good legal framework, sanctioning penalties and providing protection, need to be evolved where
there is none. The implementation of such framework will enhance the number of reported cases
and highlight the gravity of the issue.
There should be women empowerment including political, economic and social empowerment of
women, the most important point is to empower young girls to reject violence psychologically.
This can be done through education and training of girls and boys, not merely in formal
institutions, but also through domestic training by their mothers, aunts, elder sisters and other
older members of family seeking to inculcate the respect of women as a fundamental family
value.
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Domestic Violence in India: Will Law Alone Change the Situation?
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