THE SAVIOR OF WOMEN IN DISTRESS: JUDICIARY & DOMESTIC VIOLENCE

Reading time : 8 minutes

INTRODUCTION

“Violence against women and girls is a problem of pandemic proportion. At least one out of every three women around the world has been beaten, coerced into sex or otherwise abused in her lifetime with the abuser usually someone known to her.” -Kofi Anan

Since time immemorial, gender inequality exists and it is visible in both public and private spheres. The only difference between what happened earlier and what’s happening now is, presently we have legal help and forums in rescue.

Talking about the pre-vedic age, in Manusmriti, women’s status was no more than an entity who cannot exist by herself. It puts men on a much higher status and this can be substantiated by excerpt mentioned hereinafter.

“Though destitute by virtue, or seeking pleasure elsewhere, or devoid of good qualities, yet a husband must be constantly worshipped as God by faithful wife.”[1]

It ostracises women for almost everything but an evil husband still has to be worshipped. In the second chapter, women are termed as seducers and held women responsible if a man feels sexually aroused and thus they shall be guarded always. In today’s scenario too, we find this. For any violence against women namely rape, the reason is attributed to women, their dressing sense etc. Moreover, Manu has stated that “Wise men should marry only women who are free from bodily defects, with beautiful names, moderate hair on the head and body, soft limbs and small teeth”[2]. By this he asks women to fit in to certain ‘beauty standards’ set in by society. We find its application in contemporary world too.

Since long back women have been considered submissive and she has been subjected to numerous pains be it physical or mental. Journalist Beatrix Campbell in her book defines contemporary world as neo patriarchy with new weapons of gender inequality coming up.

Despite constitutional grants of equality for all, inequality prevails in practice. Article 14[3] talks about equality for all and Art 15[4] bestows special rights. But is it the real picture, is it practiced in real life? Are women considered equal to men and treated with adequate respect? This paper will delve into it.

ABC OF DOMESTIC VIOLENCE

There are several ways in which women suffer starting from female foeticide, infanticide, unequal access to education, health care, dowry torture, pay gap, domestic violence, rapes, forced sexual favours at workplace. This papers aims to discuss in detail the evil of domestic violence.

Domestic violence as the term suggests is the violent activity to which woman is subjected .UN defines domestic violence as a pattern of behaviour in any relationship that is used to gain control over the other intimate partner. It can be in any form like physical, mental, sexual, emotional, economic.

Physical violence can include slapping, kicking, hitting with objects, biting, pushing off etc. It can be done with or without alcohol influence. While financial abuse can be holding access to money, restricting from earning. Sexual abuse can look like having sex without consent, forcing for it while other partner is either sick or incapable. It even includes beating or hurting during intercourse, involving third person in sexual activities. Another grave form of damage  can be emotional abuse, wherein the partner plays mind games, manipulates, passes unwelcome remark, humiliates in front of others. The effects of such abuse can be unimaginable. It can lead to depression, anxiety. It can be due to any reason, but mostly these are due to insufficient dowry. Dowry system originated when daughter’s parents gave her gifts out of pleasure. But now it is more of a burden and cancerous to society. It has to be kept in mind that voluntary presents from bride’s parents are not counted under dowry. The court laid so in S.Gopal Reddy vs State of Andhra.[5] It damages the peace, harmony, trust between the families and at times the consequence is death.  Court in  Krishnalal vs Union of India[6] has said that physical as well as mental violence has to be taken into account. It is inclusive of any act which is detrimental to her and drives her to cause any harm to herself.

At times, the bride remains quiet in hope that these evil will be condemned and situation will improve, but things remain unchanged. Marriage is deep seated in India’s tradition, dowry is not generally refused, therefore this customs is resisted from change. This cancerous practice has been made illegal by Dowry Prohibition Act, 1961 but it still exists. Thereafter sec 498A was brought in. Details of the relevant provisions will be discussed in subsequent sub- headings.  As already mentioned dowry is not the only reason. It can be attributed to stereotypical thought and regressive mindset which ties women with shackles of traditions. Its effect on women can be drastic. Other than grave physical injuries, she undergoes inexplicable mental agony. At times it is so strong that she commits suicide. Despite having innumerable laws, women are still the victims. The question arises, is the law still insufficient or the implementation inefficient?  A brief analysis of the laws shows that provisions were aimed specifically at violence against married woman. There was no recognition for women in live-in relationships. But in the case of D.Veluswamy vs D.Patchaiamal[7] Supreme Court gave a wider meaning to the term ‘aggrieved person’ and included women of live-in relationships too. It enumerated five essentials for inclusion of such women-

  1. Both parties must act as husband and wife in front of society, be recognised as same.
  2. Should be of valid age to marry.
  3. None of them should have a spouse living
  4. They have voluntarily cohabited for a substantial amount of time.
  5. They have a shared household.

If all these are satisfied, then such woman will get help of the court and will be covered under domestic violence act. Moreover such a woman, who is not legally wedded can claim maintenance under domestic violence act. Such a claimant cannot claim so under Sec 125 CrPC[8]. It was said in the case of Lalita Toppo vs state of Jharkhand.[9] In this way judiciary is acting as a saviour for women in distress by expanding the ambit of existing statute.

LEGAL ASPECT

There are several laws which ensure protection of women. The first and foremost is-

CONSTITUTION which provides for equality of women. Article 14 enshrines the general principle of equality and prohibits discrimination on grounds of religion, Race, caste, sex etc. It ensures positive discrimination for women. Art 15 (3)[10] ensures that women are provided with special provision to bring them at par with men. It allows the state to make special provisions for women as well as children. Moreover, Art 16[11] provides for equal opportunity in employment to all the citizens. Art 39 (a)[12] and Art 39(d)[13] obligates the state to provide adequate livelihood to men and women along with equal pay for equal work. Equal pay for equal work is a constitutional goal as was said in case of Randhir Singh vs  union Of India.[14]

Other than this, Art 51A(e)[15] aims at renouncing such practices which are derogatory to the dignity of women.All of these aim at protection, upliftment of women which in turn will make sure that she lives a life of respect.

Next is INDIAN PENAL CODE, 1860. There are certain provisions which aim at protecting women from marital offences like adultery, mock marriages with women.

Sec493 IPC[16] – It penalises such men who deceitfully cohabit with a woman, have sexual intercourse with her in belief that she is lawfully married to him, with ten year of imprisonment and fine.

Sec 497 IPC[17] – Adultery – presently this law treats men and women equally, earlier law was biased and treated women as a possession under men. As per sec 497, any spouse if involves in sexual intercourse with a person other than his or her legally married spouse should be punished.

Sec 498IPC[18]– It penalises such a man who entices a woman whom he knows to be wife of another man, with intention of having sexual relations and for that very purpose detains the woman, with imprisonment up to two years and fine.

Sec 498A[19]– it aims at prohibiting the dowry practice and domestic violence concerning it. It was brought in by Criminal Law Amendment act, 1983. Before this, in 1961, Dowry Prohibition Act was brought in but cruelty could not be contained. Then sec 498A was introduced. To apply this section, there are three basic ingredients –

  1. Married woman
  2. Subjected to cruelty
  3. By her husband or in-laws.

The term ‘cruelty’ does not only include physical or bodily torture, it is inclusive of mental agony too. Cruelty has no defined parameters, it involves every such act which drives the woman to cause harm to herself. In the case of Krishnalal vs UOI[20], the court had said that the conduct has to be detrimental in nature, so as to cause herself either physical or mental injury. It is not necessary that husband and his relatives to be present when she is subjected to cruelty. It is sufficient if act causes mental or physical harassment.

DOWRY PROHIBITION ACT, 1961 (28 of 1961)

Sec2[21] defines dowry as  any valuable which is given or agreed to be given, either directly or indirectly at the time of marriage by one party to the other’. It excludes from its purview the dower which is compulsory as per Muslim personal law.

Sec 3[22] penalises giving and taking of dowry. It says that party involved in giving or taking dowry should be imprisoned for minimum 5 years and fine at least 15,000 or more if value of dowry is more. But it does not count such gifts which are given without any demand from the groom’s family. This act covers a wider range and penalises mere act of demanding dowry with imprisonment of at least six months and fine of Rs. 10,000 at maximum. It was reiterated in Pandurang Shiwram Kawathar vs State of Maharstra[23]. Moreover, the act puts a ban on advertisement promoting dowry. If any such advertisement is put up, then it will be punishable with six months to two years imprisonment or 15,000 fine.

In offences related to dowry, the general principle of ‘innocence until proven guilty’ does not apply. The burden of proof in concerned cases is on the accused himself to show that he has not committed any such crime.

PROTECTION OF WOMEN FROM DOMESTIC VIOLENCE ACT,2005

Despite these enactments, a plethora of  women are still vulnerable. To make the cumbersome process simpler, the act was brought in. In case of Indra Sarma v VKV Sarma[24], court said that the domestic violence act (hereinafter mentioned as the act)is enacted to provide a remedy under civil law to the victims of domestic violence. It makes the offence cognizable and non bailable.[25]

Sec 3[26] of the act lays down a wide definition of domestic violence and includes within its ambit such injuries which endangers her life, affects her mental and physical well being, coerces her to meet unlawful demands of dowry or has threatened her to do any of these aforementioned activities. It takes into account physical , verbal, emotional, economic, sexual abuse. As per the case of Hiral P.Harosa vs Kusum Narottamdas Harsora, the remedy of the act is available against female members and also against non adults. The aggrieved person can approach the police station or the protection officers or even the magistrate directly.

Sec 6[27] and 7[28] makes provision for shelter of victims and medical aid on being approached by aggrieved person or protection officers. Sec 9[29] very clearly lays down what are the duties of the protection officer, whereas sec 10(1)[30] along with sec 6 binds the service providers to support the women facing domestic violence by providing her shelter or helping her lodge the complaint. The court is empowered to pass several types of orders like protection order[31] , residence order[32], monetary relief[33], custody order[34], compensation order[35].

 This statute is comprehensive and exhaustive while addressing women and her vulnerabilities.

 LOCKDOWN AND DOMESTIC VIOLENCE

Covid-19 is posing greater challenges not only in terms of health but also in terms of Human Rights violations (especially for women). A mandatory lockdown was imposed across the country and in this home was considered to be safest place. However, not all homes were safe. There were certain families for whom staying at home meant no earning and therefore no food. Among the sufferers, women were common in every socio-economic background. There were several instances where female migrant labourers were walking long distances in advance stages of pregnancy, delivering babies on road.

While the middle class and upper class women were shut inside their house with abusive partners. There was steep rise of around 94% in violence cases. Caged in homes, brimming with frustration, opportunity of abuses increases. With restricted mobility and less privacy, women are unable to seek help. They were locked down with the perpetrators 24*7 and are taken of full advantage. The UN Women has used the term ‘shadow pandemic’ to capture the violence against women. The covid-19 pandemic is co-existing with ‘shadow pandemic’. The preventive measure for one pandemic is cause for another and thereby results in surge of violence against women. In general also, home is a contested site for unequal gender roles. The roles on women are care works within home. Their work is a parameter to judge them. But this covid-19 has added to the difficulty for women. It has changed the concept of homes from a safe haven to a site for demonstration and reiteration of patriarchy. People are mostly working from home, so the houses are now set up as workstation. Children are attending virtual classes. Moreover if there are covid patients they are to be kept away from non-patients. The house is turning into a care provider as was done by schools, colleges, hospitals in pre-covid phase. Whole of such duty is carried by woman. Additionally, she is vulnerable to the violence by her abusive partner.

If it is a poor household, then women are seen having tough time managing food for her family on top of bearing the violence from the perpetrators. In short, women are facing the disproportionate brunt of  covid crisis. The virus has magnified the sufferings for everyone in general but women in specific.

Some numerical facts on surge of domestic violence during lockdown-

  • As per National Family Health Survey-4 in 2015-16, one in every three women was subjected to violence during non-pandemic.
  • Between 25th March and 31st May, 1477 cases which is more than what was received in last 10 years.[36]
  • Total domestic violence cases in 2019 is 2960 and in 2020 is 5297.[37]
  • As per National Commission of Women, highest domestic violence cases have been reported from Punjab.
  • As per NALSA, maximum domestic violence cases were reported from Uttarakhand then Haryana.
  • As per special women help desk, around 600 cases of mental and physical tortures have been recorded against husband and family members.
  • As per chairperson of National Commission of women, there is a 94% rise in domestic violence cases during lockdown.
  • On the whole ,Delhi reported around 2500 cases during lockdown.

JUDICIARY AS SAVIOR

During these resilient times, courts have taken up the issues of rising domestic violence cases, analysed what are the resorts available to victims. Following are two cases concerning the sorry state of women in this challenging time. The very first case is in the court of Jammu and Kashmir, Ladakh High Court.

Court on its Own motion vs Union Territory of Jammu & Kashmir and Ladakh.

 It is a case of April 2020 presided over by Justice Gita Mittal, CJ Rajesh Oswal.

Facts – court took suo moto account of the issues of women being victims of violence during lockdown. It noticed the global trend of surge in violence case and women losing access to reliefs, friends, shelter homes. Moreover, they are unable to register a complaint in the forum.

The court identified the following issues-

  • No access to shelter homes and help lines which is an essential services.
  • Women from socially, educationally, economically backward sections cannot access to online help forums.
  • No proper advertisements of the existing help lines.
  • Lack of alternative residences.
  • Insufficient legal aids, societal fear of going against family, financial incapacity as barriers for women.

The main law on the basis of which the case was taken up was Protection of women from Domestic Violence Act 2005 (the concerned act and provisions have already been discussed).

Judgement- Court observed that all crisis affects women disproportionately and this pandemic is having tremendously negative impact on the women and girls as they are locked down in the home with their intimate partner without any aid. The strained finance, insecurities about future add to their plight and thereby exposes them to several kinds of abuses. Court even added that women and children are extremely vulnerable to domestic violence and there is an unimaginable spike during this lockdown. It decided to lay down certain guidelines as already suggested by UN-

  • Ensuring call lines support, text message reports of abuse.
  • Shelters being essential service, a part of covid19 fund should be channelized towards it.
  • Providing childcare and other such help to the shelter staff to ensure that they dedicate their time to shelter homes.
  • Ensuring legal support, psycho social counselling for the victims.
  • Integrate these services with other essentials like grocery, pharmacy.

In this way, Jammu & Kashmir and Ladakh High Court tried to rescue woman in distress. Another pertinent case is a petition in the Delhi High court.

This case arises out of civil writ petition which was filed to provide aid to victims of domestic violence and questioned whether the persons authorised under Disaster Management act area actually doing their work.

Facts-  The petition issued a writ of mandamus to the person authorised under Sec 34 of the Disaster management Act 2005[38]. The petition prayed to the court for –

  • Publicising the help line numbers which should include WhatsApp numbers as well as telephonic ones.
  • Create more awareness through TV channels, hoarding, telephonic calls, text messages, radio, newspapers to ensure that victim can get help immediately.
  • Appointing Nodal officers who can attend the victims.
  • Exempting the victim from lockdown norms if they are stepping out of the house to report the domestic abuse.
  • Offering counselling opportunities from the reliable and efficient psychiatrist. These should be publicised more and more so that people not using social media can also know about it.
  • Locate such hotels or residential areas which will be safe haven for the victims. It should be safe enough that victims are convinced to leave their homes immediately.
  • Make the victims acquainted with certain codes which will help them to report the abuse cases in pharmacy, grocery stores or such reliable places.
  • If the situation is extremely grave, the victims should be provided police protection and matters should be reported in courts.

The additional solicitor general who was representing on behalf of Union Of India said that women help line 181 is operational, one stop centre (Sakhi) are established. It added that psychological support was also provided, there was a special Whatsapp number aired to seek help. Moreover, a website was launched to register the complaints, the help line number and website were publicised by radio jingles, newspapers etc.

Judgement- The court found that adequate steps have already been taken. The details of the help lines, shelter homes and other provisions as presented were considered ample. Taking help dairy booth, groceries, pharmacies have also been acknowledged.

Court suggested that additional temporary protection officers shall be appointed until permanent officers occupy the office. The persons who are attending the help line numbers shall be trained enough to take possible steps in case of certain common difficulties. Court even suggested that the helpline number should be functional 24*7 and the calls, messages should be attended as soon as possible. With this case was closed.

Countries across the world have taken steps to ensure that victims of violence are safe and rescued. Some of such countries are listed hereinafter –

  1. France – Grocery stores have set up counselling facilities. Code ‘MASK 19’ to inform the pharmacist if the abuser is around.
  2. Argentina – Pharmacy is the safe space to report abuse.
  3. Spain – Women leaving home to report abuse shall not be punished or fined.
  4. Canada and Australia – Significant part of national budget for shelter homes and sexual assault centres.
  5. UK- Special power to police to draw our abusers from home. No court fees charged for protection orders.
  6. Italy- The abuser should be made to leave home.
  7. Wales – ‘Live Fear Free’ helpline open for 24*7.
  8. Columbia – Virtual legal advice, psychosocial advice, justice services (including court hearings).

CONCLUSION

Women have always been treated as second class citizens but this covid-19 has brought the underlying prejudices to the forefront. The whole world was locked down in homes and that is why it has acquired a significant place in dealing with virus. But simultaneously, it became the chamber of torture for women and this was not just case of India rather the whole world. It is the duty of every one of us to ensure that ‘home’ is actually safe for all including women. The virus of violence against women is quite old and it deprives women from things which she deserves. It is vital to tackle with this situation. Though there are several laws dealing with violence against women, different help lines, forum to report, but with this lockdown when everybody is restricted from coming out it is it is becoming difficult for women to seek help. There are several laws dealing with such situations but until and unless the cases are not reported, the laws are of no use. To make sure that the cases are reported , whatsapp helpline, SMS helpline were introduced. These were publicised through newspaper, TV, radio jingles, repeated SMS reminders. Jammu and Kashmir High Court and Delhi High Court addressed the issue of rise in domestic violence cases and has urged the state government to take such steps which were already suggested by UN. In several parts of the world, domestic violence has been termed as essential services and pharmacies. Groceries stores have been counted as safe places for the victims to report abuse case. In this way, government as well as non government organisations have tried to help the victims in ways they can. The co-existence of covid-19 pandemic with shadow pandemic of violence against women has posed a greater challenge and it’s the time we all should put in efforts to walk through it.


[1] Manusmriti

[2] Manusmriti (3:11)

[3] The Constitution of India, art 14.

[4] The Constitution of India, art 15.

[5]1996 SCC (4) 596

[6]1994 CriLJ 3472

[7] (1991) 2 SCC 375

[8] Criminal Procedure Code, 1973, S. 125.

[9] (2019) 13 SCC 796

[10] The Constitution of India, art 15(3).

[11] The Constitution of India, art 16.

[12] The Constitution of India, art 39(a).

[13] The Constitution of India, Art 39(d).

[14] 1982 AIR 879

[15] The Constitution of India, Art 51A(e).

[16] Indian Penal Code 1860 (45 of 1860) ,S. 493.

[17] Indian Penal Code 1860 (45 of 1860),Sec 497.

[18] Indian Penal Code , 1860 (45 of 1860), s.498.

[19] Indian Penal Code , 1860 (45 of 1860), S 498A.

[20] 1994 CriLJ 3472

[21]  Dowry prohibition act,  1961 (28 of 1961), s 2.

[22]  Dowry Prohibition act, 1961 (28 of 1961), s.3.

[23] 2001 CriLJ 2792

[24] JT 2013 (15) SC 70.

[25] Domestic violence act, 2005 ( 43 of 2005)  ,S 32.

[26] Domestic violence act, 2005 ( 43 of 2005), s.3.

[27] Domestic violence act, 2005 ( 43 of 2005) ,S. 6.

[28] Domestic violence act, 2005 ( 43 of 2005) ,S. 7.

[29] Domestic violence act, 2005 ( 43 of 2005). S.9.

[30] Domestic violence act, 2005 ( 43 of 2005), s.10(1).

[31] Domestic violence act, 2005 ( 43 of 2005), S. 18.

[32] Domestic violence act, 2005 ( 43 of 2005), S. 19.

[33] Domestic violence act, 2005 ( 43 of 2005) ,S. 20.

[34] Domestic violence act, 2005 ( 43 of 2005) ,S. 21.

[35] Domestic violence act, 2005 ( 43 of 2005),  S. 22.

[36]  Vignesh Radhakrishnan“ Data I Domestic Violence complaints at a 10 year high during Covid 19 lockdown”, The Hindu, available at https://www.thehindu.com/data/data-domestic-violence-complaints-at-a-10-year-high-during-covid-19-lockdown/article31885001.ece (last visited on 17.07.2021)

[37]  “Complaints of domestic violence against women spiked in the year of lockdown: NCW Data”, Times of India, available at https://timesofindia.indiatimes.com/india/complaints-of-domestic-violence-against-women-spiked-in-year-of-lockdown-ncw-data/articleshow/81687915.cms (last visited on 17.07.2021)

[38] Disaster Management Act,2005(53of 2005)S. 34.

Author: NILANJANA BANERJEE, NATIONAL UNIVERSITY OF STUDY AND RESEARCH IN LAW, RANCHI

Editor: Kanishka VaishSenior Editor, LexLife India.

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