Domestic violence during COVID-19 in India

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Introduction

On March 24, 2020, one of the most stringent lockdowns was imposed on the world’s second-most populous country to curb the spread of COVID-19. Initially, it was imposed for 21 days but later it was extended. Lockdowns and social distancing measures forced people to remain locked inside their houses. The consequences of this pandemic are not limited to loss of life and restrictive measures but rather it encompasses socio-psychological impact too in its ambit. Furthermore, it resulted in fear, anxiety, depression and many other mental health issues[1]. However, this impact was much more profound in women. Women were forced to stay inside their houses despite the fact that they are subjected to intimate and family violence. During COVID-19 imposed lockdown, not only domestic violence but also gender-based violence was increased. Social distancing measures narrowed down the scope of women to seek legal recourse as well as social support. Studies related to domestic violence indicate that some of the main causes of domestic violence are employment status, controlling behaviour by husbands, patriarchal norms and alcohol consumption. In this research paper, the causes of domestic violence during COVID-19 along with the legal framework available in India for domestic violence is discussed.

Domestic violence during COVID-19 in India

Domestic violence is violence caused to the victim by someone close in the victim’s family circle. The term ‘domestic violence’ is used when there is a power gap between the victim and the perpetrator. It can be in the form of psychological, physical or sexual abuse.

According to National Commission for Women’s (NCW) data, during March 25 and May 31 of 2020, 1,477 complaints of domestic violence were filed, which was the highest domestic violence complaints recorded during the same period in the past 10 years. And amongst 28 states of India, the highest number of complaints were filed in Uttar Pradesh, while the highest complaint rate was of Delhi.[2] This clearly shows that the rise in domestic violence was not limited to a singular state; it was spread all over the country.

However, around 86% of women who experience domestic violence didn’t even seek any help. A rough idea can be gathered from this that domestic violence became much more profound in India during COVID-19. Restricted movements, inaccessibility of mediums of communication, absence of support system; both formal and informal are some of the reasons why women could not seek any help.

This rise in domestic violence can be attributed to a number of factors. The first being alcohol. Shops and other establishments were completely closed down due to stringent measures and lockdown imposed by the government. Withdrawal symptoms due to the non-availability of alcohol led to frustration among people, which became a possible motivation for the offenders to inflict violence in their domestic spheres. Another possible motivation was unemployment, which again was the cause of frustration and anxiety among people.

Another contributing factor was the absence of a guardian. In normal circumstances, the victim’s family members and friends can help them, but the movement was restricted from one place to another during lockdowns. Further, due to existing patriarchal norms, many women still have no access to phones or do not have the requisite knowledge to operate them. The immediate guardian after family and friends are neighbours but in cases of domestic violence, people consider it a private matter and become reluctant to intervene.

Legal Framework for domestic violence in India

Introduced in the year 1983 by way of the Criminal Law (Second Amendment) Act, 1983, section 498A of the Indian Penal Code defines cruelty to women from the husband or relative of husband. It was introduced with the aim to protect women from violence in the domestic sphere. It is a penal provision but it has been allied with provisions of the Code of Civil Procedure to act as a deterrence in case of domestic violence.

‘Cruelty’ has been defined in wide and unambiguous terms to include both physical as well as mental harm to the body or health of the woman. Harassment of a woman for dowry and creating a situation in which she commits suicide was included within the ambit of ‘cruelty’ defined in section 498A. However, the meaning and effect of ‘cruelty’ vary from individual to individual.[3] A bare analysis of this section highlights that following acts are covered under ‘cruelty’:

  1. Any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or
  2. Health (whether mental or physical) of the woman; or
  3. Harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.[4]

To attract section 498A, the following essentials must be satisfied:

  1. The woman must be married.
  2. The woman must be subjected to cruelty or harassment.
  3. Such cruelty or harassment must have been shown either by the husband of the woman or by the relative of her husband.[5]

The expression ‘husband’ is not defined in this section. But it covers a person who is in a marital relationship and in his capacity as a husband, inflicts violence or cruelty on the woman concerned. In Reema Aggarwal v. Anupam, it was observed that “the absence of a definition of “husband” to specifically include such persons who contract marriages ostensibly and cohabit with such woman, in the purported exercise of their role and status as “husband” is no ground to exclude them from the purview of section 498-A IPC.”[6]

The power under this section is given to the second wife also, the rationale behind this was to extend the benefit under this section to women who unknowingly or unconscious of the legal consequences entered into the marital relationship.[7] However, a woman in a live-in relationship cannot file a complaint under this section.[8]

Another ambiguity under section 498A is related to the ‘relative of the husband’. For this, the Honourable Supreme Court in Vijeta Gajra v. State (NCT of Delhi) observed that in order to be covered under this section, the relative must be connected to the husband by either blood, marriage or adoption.[9]

The complaint under section 498A can be filed by the aggrieved woman or any such person related to her by blood, marriage or adoption. However, if no such relative is there, the complaint maybe filed by a public servant as notified by the state government on this behalf. Subsequent to this, the court can take cognisance of such offence.

The offence under section 498A is a cognisable, non-compoundable and non-bailable offence. A cognisable offence means that the police have the power to arrest the accused without any arrest warrant if the information related to the commission of offence is given to an officer-in-charge of a police station. A non-compoundable offence is an offence in which the court cannot document a compromise between two parties and drop charges against the accused. While, if a non-bailable offence is committed, then the accused cannot claim the grant of bail as a matter of right.

One interesting aspect of section 498A is the period of limitation. According to section 468 of the Code of Criminal Procedure, the complaint under section 498A should be filed within three years of the occurrence of such an incident. Nonetheless, section 473 of the Code of Criminal Procedure allows the court to take cognisance even after the expiry of three years if the court is satisfied that it is necessary in the interest of justice. But as ‘cruelty’ is a continuous offence, and on each occasion on which the woman was subjected to cruelty, she would have a new starting point of limitation[10].

Section 113A of The Indian Evidence Act

Section 113A of The Indian Evidence Act, 1872 is an allied section of section 498A of The Indian Penal Code. This section was introduced by Criminal Law (second amendment) Act in 1983. The purpose behind the introduction of this section was to deal with the increasing rate of dowry deaths and to safeguard the rights of women.

Section 133A deals with the “presumption as to abetment of suicide by a married woman”. For the purpose of this section, the meaning of ‘cruelty’ is the same as it is defined in section 498A of the Indian Penal Code. To attract this section, the basic essentials are:

  1. Suicide must be committed by a married woman.
  2. Suicide must be committed by the woman within seven years from the date of marriage.
  3. Her husband or any such relative of husband has subjected her to cruelty.[11]

If the abovementioned essentials are fulfilled, then the court may presume that the death of the woman was suicide after taking into account the circumstances of the case. Moreover, the presumption is rebuttable, which means that the assumption of the court is taken as true unless someone contests it and proves otherwise.

The Protection of Women from Domestic Violence Act, 2005

It is often construed that the patriarchal setup laid the foundation for the exploitation of women in domestic spheres. Needless to say, domestic violence affects women irrespective of their age, religion, caste, creed and economic status. Protection of Women from Domestic Violence Act or simply the Domestic violence Act was enacted in the year 2005. Before this Act, women had the option to approach the court under section 498A of the Indian Penal Code. But as discussed above, section 498A is limited in its approach, this led to the trial of other offences related to domestic violence under the respective acts of violence under the Indian Penal Code irrespective of the gender of the victim. Protection of women from Domestic Violence Act, 2005 acted as a linchpin in cases of domestic violence.

The Supreme Court bolstered the legislative intent of this Act in Indra Sarma v. V.K.V Sarma, where it was observed that “Domestic violence Act was enacted to provide a remedy in civil law for the protection of women, from being victims of such relationship, and to prevent the occurrence of domestic violence in the society.”[12]

Various key definitions are stated in the Domestic violence Act, such as “aggrieved person” (Section 2(a)­), “domestic relationship” (Section 2(f)), “shared household” (Section 2(s)) and “domestic violence” (Section 3). The definition of domestic violence given in this Act is exhaustive and broader than the definition of “cruelty” defined in section 498A of the Indian Penal Code. It includes physical violence, mental violence, emotional violence and financial violence too. Furthermore, it elaborated the meaning of terms- “physical abuse, sexual abuse, emotional abuse, verbal abuse and economic abuse.” It also articulates the facts, circumstances and essentials to determine whether the offence comes under the category of “domestic violence.”

Unlike section 498A of the Indian Penal Code, the remedy is also available to women in live-in relationships under the Domestic violence Act meaning that marriage is not a pre-requisite condition under this act. One significant aspect of this Act is that it can also be filed against a female member of the family of husband/male partners and against non-adults too. The expression “adult male” was struck down in Hiral P. Harsora v. Kusum Narottamdas Harsora[13], the rationale behind this was the inclusion of only “adult male” under this Act defeats the object this Act seeks to achieve.

A commendable provision of this Act is the appointment of a Protection Officer by the State government.[14] The main work of this protection officer is to assist the victim in the filing of a complaint, obtain medical aid, legal aid, counselling and other assistance. He also acts as a facilitator between the victim and the court. The duties of the Protection Officer are elaborated in section 9 of the Act.

Additionally, service providers are defined in section 10(1) of the Domestic violence Act. Service providers are NGOs and companies working in the field of domestic violence. They are registered under the laws of the State and are duty-bound to assist aggrieved women.

The competent court for the offence of domestic violence under this act is a first-class magistrate or metropolitan court.[15] However, a petition under DV Act can be filed in a court under whose jurisdiction, the “person aggrieved” permanently or temporarily resides or carries on business or is employed.[16]

Section 18 to section 23 deals with the remedies available to the aggrieved person under this Act. The remedies that can be availed are protection orders (section 18), residence orders (section 19), monetary relief (section 20), custody orders (section 21), compensation orders (section 22). Section 23 of the Act gives power to the magistrate to give an interim as well as an ex parte order if he deems it fit or if the application shows that the offence of domestic violence is committed or there is a probability of the commission of such offence.

Additional steps that can be taken

The introduction of section 498A into the Indian Penal Code was a welcome step, it was further strengthened by the introduction of the Protection of women against Domestic Violence Act, 2005. The legislature as well as the judiciary is taking various steps to safeguard the rights of women. But still, the reality is grim. Many women are still unable to file domestic violence complaints and some are reluctant to seek any help. Besides law, some additional steps can be taken at the grassroot levels.

The first is by the way of bolstering women’s agency and financial independence. Economic self-sufficiency can pave the way for women to come out and seek help. This can be done with the introduction of skill development and financial literacy programmes.

Secondly, community support system should be strengthened. It is undisputed that the first recourse available to an aggrieved woman is family and friends. Formal and informal complaint systems can be put up in workplaces and education institutions to enable ease of reporting and access to various services.

Thirdly, this can be done by increasing awareness. Many awareness programs are still undergoing to increase in this domain, but one essential step that can be taken is youth engagement. This will prove fruitful in breaking the intergenerational chain of domestic violence and will enable the youth to take a positive step in this direction. Youth engagement programs can be extended to district and block levels so as to decrease the trauma and shame that many people associate with domestic violence.

Conclusion

There was a sharp increase in gender-based violence during COVID-19 in India. During March 25 and May 31, the complaints of domestic violence recorded were highest during the same period in the last ten years. However, 86% of women who experience domestic violence did not even seek any help. Hence, it became imperative to look into the legal framework available for domestic violence in India. The legislature as well as the judiciary is taking welcome steps in this direction. But the reality is still grim. Section 498A of the Indian Penal Code and the Protection of Women from Domestic Violence Act, 2005 were the beneficial steps taken in this domain. But, to enable ease in reporting and decreasing trauma and shame associated with filing complaints of domestic violence, which is one of the prime reasons women don’t seek any help, some grassroot level steps are needed to be taken. This can be done by strengthening women’s agency and financial independence and community support system and by increasing youth engagement. So, in order to free our society from this social evil, everyone should take requisite steps on their level. Furthermore, the legal framework must be improved more to enable ease of filing complaints and to safeguard the rights of women.


[1] Stigma and Discrimination During COVID-19 Pandemic, available at https://www.frontiersin.org/articles/10.3389/fpubh.2020.577018/full (last visited on August 15, 2021)

[2] Vignesh Radhakrishnan, Sumant Sen, et.al. (eds.) “Domestic violence complaints at a ten-year high during COVID-19 lockdown” The Hindu, June 22, 2020

[3] G.V. Siddaramesh v. State of Karnataka (2010) 3 SCC 152.

[4] The Indian Penal Code, 1860 (Act 45 of 1860), s. 498A.

[5] U. Suvetha v. State, (2009) 6 SCC 757

[6] (2004) 3 SCC 199)

[7] A. Subash Babu v. State of A.P., (2011) 7 SCC 616

[8] Unnikrishnan v. State of Kerala, 2017 SCC OnLine Ker 12064

[9]  (2010) 11 SCC 618.

[10] Arun Vyas v. Anita Vyas, (1999) 4 SCC 690.

[11] The Indian Evidence Act, 1872 (Act 1 of 1872), s. 113A

[12] (2013) 15 SCC 755

[13] (2016) 10 SCC 165

[14] The Protection of Women from Domestic Violence Act, 2005 (Act 43 of 2005), s. 8

[15] The Protection of Women from Domestic Violence Act, 2005 (Act 43 of 2005), s. 27

[16] Shyamlal Devda v. Parimala, (2020) 3 SCC 14

Author: Akshita Shrivastava, National Law Institute University, Bhopal (M.P.)      

Editor: Kanishka VaishSenior Editor, LexLife India.

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