Introduction:
Inborn blemish in the society crafted a way for the legislature to frame the Act against domestic violence and drag a black hat to the fear of being prosecuted.
The World Health Organization (WHO) described the term violence as using force with the intention to cause or likely to cause injury, demise, psychological harm, or faulty development of a person. This force can be against oneself or any other person.[1]
Violence within domestic boundaries is defined as domestic violence.
Domestic Violence under the Domestic Violence Act, 2005
Domestic Violence is defined as: Causing mental, physical injury by the way of physical abuse, verbal abuse, harassment, sexual abuse, economical abuse. This is used as a tool to quest the thirst of unjust, unlawful demands.[2]
Every act which leads to domestic violence is an act against Human Rights.
For ages, domestic violence is the bitter truth if or society. If seen from the shades of society then women are the only victim of domestic violence and to curb this the legislature came up with the Protection of Women from Domestic Violence Act, 2005 this Act came into effect from 26 October, 2006.
The name of the Act itself excludes men from its purview. Men are considered as the perpetrators of violence. But studies point out something very different according to which 51.5 % of men at least once in their lifetime experience violence from their partner, wife.[3] This is Domestic Violence as per the Act.
The National Family Health Survey came up with the report in 2004 that not only partners, wife but also their relatives cause violence against men. In India, about 3 crore of men suffer from domestic violence.[4]
According to the study on domestic violence against men done by My Nation and Save Family Foundation (Delhi), it was concluded that Indian women are most dominating and abusive.[5]
Is it a gender-biased Act?
Hirpa P Harsona v. Kusum Narotam Das Harsona[6]
This case changed the perspective of the society as in this case, the apex court of India deleted the word “adult male” from section 2(q) of the Protection of Women from Domestic Violence Act, 2005.
After this historical case, the Act is not only limited to women but also men. As of now according to the Act respondent means a person suffering in a domestic relationship.
Mhd. Zakir v. Shabana[7]
The single-judge bench of Karnataka High Court allowed the application of domestic violence in which the victim was a man.
Statistics
Globally:
The World Health Organization (WHO) estimated worldwide that 1 out of 3 women is the victim of domestic violence via physical or sexual abuse, this means that 35% of women in the whole wide world experience physical and sexual abuse.[8]
It is estimated by WHO that about 38% of murderers of women are their intimate partners.[9]
Approximately one pout of 10 men suffer from domestic violence worldwide.[10]
When it comes to domestic violence via sexual abuse then the ratio between men and women is highly contrasting as according to the studies, out of 5,1 women is victim while about 1% to 2% men experience sexual abuse during their lifetime.
During their pregnancy, approximately 30% of women experience emotional abuse while 15% and 8% suffer physical and sexual abuse respectively.
Annually 10% of children experience domestic violence ( approximately), out of this 10%, 25% experience violent acts during their early childhood.
In India:
The former Union Minister, Renuka Chowdhury stated that about 70% of women are were victims of domestic violence in India.[11]
In 2018, in a report published by the National Crimes Research Bureau titled Crime in India, in the duration of every 4.4 minutes, a woman suffers from domestic violence.
According to a study, about 51.5% of men experience domestic violence. When it comes to psychological violence then it came up that 85% of men suffer from criticism, 30% from insult, and 3.5% from the fear of being hurt, while 0.4% of men suffer from sexual abuse.
Domestic Violence is not just limited to heterosexual relationships[12]
Domestic Violence is not horror only to the people engaged in a same-sex relationship but according to studies, the LGBTQ community has a higher rate of such violence. About 45% of people from the LGBTQ community do not complain about their experience as either they are too shy to do so or just feel that they will receive no help.
Type of Violence they Suffer:
- Physical Violence: 20%
- Psychological Violence: 31%
- Sexual Violence: 4%
Transgender Intimate Violence
Individuals from the transgender community experience more intimate partner violence than gay and lesbian. The percentage of such violence is comparatively more when one partner is transgender, mainly in such cases the other partner questions body type or emotion in an offensive way or they make them feel that they are not natural.
What Limits them to Seek Help?
It is generally believed by our society that domestic violence can not occur in the LGBTQ community and this view of the social limits the access of such victims for help.
It is seen that shelters for victims of domestic violence have only two category i.e for males and females therefore LGBTQ people are not allowed to access any of two which disfavor them to take any such step.
People from such a community fear that if they’ll complain against violence within domestic boundaries then people of the general category will protest against their legal status.
Such people also lack confidence in the agencies or law authorities made for the purpose to tackle such issues as they don’t get friendly support like others.
Conversion Therapy[13]
Conversion therapy also called reparative therapy is practiced by members of the LGBTQ community ( mainly youths) to change their gender. There is much danger involved in this therapy which usually makes false claims about the success of changing gender. This therapy can even lead to depression, anxiety, and posses imminent danger to the life of such. This practice receives a remark of disfavor from the medical practitioners.
What to do if you are a victim of Domestic Violence?
In a country like India, people don’t generally discuss their problems and therefore about 77% of victims of domestic violence did not share their incident(s) with anyone.[14]
The first thing which should be done is to make sure that you are in a toxic relationship where you are subjected to domestic violence.
It is not easy to ascertain whether one is in an abusive relationship or not. The thing which is to be remembered that it is not your fault that you are subjected to such kind of violence and you need to stand strong to protect yourself against such.
For a relationship to be toxic it is not necessary that there need to be any kind of physical abuse.
Domestic Violence Act, 2005 take into its ambit all kind of abuses i.e. physical, psychological, economical, sexual, emotional.
There are certain characteristic elements to know whether the relationship is filled with domestic violence or not. These are:
- Possessiveness: If anyone tries to control you or continuously keep a watch on you and because of this your mental health is declining then you are the victim of domestic violence.
- Jealousy: If your partner or anyone else connected to your shared household accesses falsely keep on accusing you of some kind of illicit relationship or forcefully isolate you from society then it is a sign of domestic violence.
- Put-downs: If you are being cursed, if you are always targeted based on your looks, intelligence, capabilities, etc and based on such if you are put down or if are compared with some unfavorable person then it is a mental cruelty which can be the foundation of your case of domestic violence.
- Threat: This is the most prominent factor of domestic violence. If you or any of your close relative or friend is being threatened for any unjust demand then it is the act of domestic violence.
- Physical and sexual violence: These acts are generally evident.
These points are however not exhaustive.
First Legal step by the sufferer of Domestic Violence
The victim of domestic violence has many options:
- The victim can either seek help from a police officer,
- The government appoint protection officer appointed to help the victim of domestic violence,
- The victim can file a complaint to be entertained by the Magistrate having the jurisdiction to entertain the matter. According to section 12 of the Protection of Women from Domestic Violence Act, 2005 the victim or on his/her behalf a close relative, friend, protection officer can file the complaint to the magistrate.
- The complaint can also be filed before a Family, District Court having jurisdiction over the matter.
Or the victim can seek the help of an NGO working in this regard.
Against whom complaint can be filed?
Ajay Kumar v. Lata alias Sharuti,[15] in this case, it was held that complaint can be filed against the one who is behind the acts of domestic violence, and hence it includes not only partners but also close relatives of partners.
Can partners living in a live-in relationship can file for relief under the Act of 2005?
In the case of Lalita Toppo v. State of Jharkhand,[16] the Supreme Court of India held that aggrieved partners in a live-in relationship can claim maintenance under the Act of 2005 though they can not get relief under section 125 of Criminal Procedure Code as a condition of legally wedded wife is not fulfilled in this case.
What if you are facing violence after the complaint is lodged?
In such a case the victim need not move out of the house if the accused is in the same house, and if the accused forces her to do so then she can be granted a protection order from the concerned authority.
Roma Rajesh Tiwari vs Rajesh Dinanath Tiwari[17]
The High Court of Bombay held that sufferer of domestic violence has the right to reside in the matrimonial house. It doesn’t depend matter whether the victim has any right over the house or not.
Can a divorced woman file complaint under the Protection of Women from Domestic Violence Act, 2005?
In the case of Sadhana v. Hemant,[18] it was held by the Bombay High Court that a divorced wife can not get any relief under the Act of 2005, if at the time of filing the petition she is divorced.
However, in the case of Reshma Begum v. State of Maharashtra & Anr.[19]certain qualifications were laid down for granting the relief under the Act of 2005 with reference to the section 2(f) of the act which talks about relationship:
- The couple in such a relationship should behave as if they are married and society shall confirm it.
- The couple is of or over valid legal age.
- They are qualified to enter into legal marriage.
- There must be voluntary cohabitation between the two.
Thus it was held that not all couples in a live-in relationship can claim the relief under the Act.
What will happen after filing the complaint?
After the complaint is lodged, summons will be issued to the accused (every single accused if there are many) and they will be heard.
After the trial, the necessary orders will be passed by the court.
Husband needs to Maintain Wife
Vimlaben Ajitbhai Patel v. Vatslaben Ashokbhai Patel and Ors.[20]
In this case, it was held that under the Act of 2005 husband is legally obliged to maintain his wife, and for this property of mother in law can not be attached.
Can a woman or her family members be removed from share household?
This question was answered in negative in the case of Meenakshi v Senthamarai Selvi.
Meenavathi vs Senthamarai Selvi[21]
In this case, it was held that section 19(1) (b) is made for the protection of women therefore as per its objective a woman or her family members can not be removed from the shared household.
Amount of Compensation?
It was held in the case of Smt. Haimanti Mal vs. The State of West Bengal[22] that according to section 22 of the Act of 2005 compensation is provided for the injury ( mental or physical ) suffered by the victim due to the act of domestic violence against the victim.
The court further observed that the act of fixing the compensation should not be arbitrary but should be a judicious act, the judge should apply his mind judiciously. To grant the compensation their should be evidence or material on record. The compensation for mental injury can only be given based on evidences on record. The amount of compensation must be reasonable.
Conclusion
Domestic Violence is a crime that needs to be addressed strongly. Such violence should not be ignored thinking that it is what is written in destiny. The victim of domestic violence needs to stand strong and seek help from close relatives, friends, and then should take legal steps against the person/s at fault. Victims should be confident and should connect to legal networks. Learn about rights and use legal resources as they are made to help have faith in the law system.
Domestic Violence is an act against Human Rights.
Bystander action can also be taken in favor of the victim, these are the action taken by the third party who is not the party to the act, or who has no connection with the act of domestic violence.
References:
[1] Violence Preventive Alliance, Global Campaign, WHO (2020) for Violence Prevention https://www.who.int/violenceprevention/approach/definition/en/
[2] The Protection of Women from Domestic Violence Act, 2005, section 3 (India)
[3] Sanjay Deshpandey,Sociocultural and Legal aspect of Violence against men,Journal of Psycosexsual Health, 3-4(2019)
[4] Dhulia, VR. Domestic violence against men: High time government addressed the problem; 2015. Retrieved from https://www.news18.com/news/india/domestic-violence-against-men-high-time-government-addressed-the-problem-1004785.html
[5] Sarkar, S, Dsouza, R, Dasgupta, A. Domestic Violence against Men: A Study Report by Save Family Foundation. New Delhi: Save Family Foundation; 2007. Retrieved from https://ipc498a.files.wordpress.com/2007/10/domestic-violence-against-men.pdf.
[6]Hirpa P Harsona v. Kusum Narotam Das Harsona, Civil Appeal no 10084 of 2016 , arising out of SLP (Civil) no 1932 of 2015 (India).
[7] Mhd Zakir v. Sabana ,Criminal Petition no 2351 of 2017 (India).
[8] World Health Organization, (November 29,2020,10:04 AM)https://www.who.int/news-room/fact-sheets/detail/violence-against-women#:~:text=Global%20estimates%20published%20by%20WHO,violence%20is%20intimate%20partner%20violence.
[9] World Health Organization, (November 29,2020,10:04 AM)https://www.who.int/news-room/fact-sheets/detail/violence-against-women#:~:text=Global%20estimates%20published%20by%20WHO,violence%20is%20intimate%20partner%20violence.
[10] Martin R. Huecker; William Smock,Stat Pearls, (October 15, 2020, 10:03AM), https://www.ncbi.nlm.nih.gov/books/NBK499891/
[11]Chowdhury, Renuka ,“India tackles domestic violence,BBC, (26 October 2006). http://news.bbc.co.uk/2/hi/south_asia/6086334.stm
[12] NCADV,(June 6,2018)https://ncadv.org/blog/posts/domestic-violence-and-the-lgbtq-community
[13] Human Right Campaign,Lies and danger envolved in the efforts to change sexual identity, shttps://www.hrc.org/resources/the-lies-and-dangers-of-reparative-therapy
[14] Vignesh Radhakrishnan, Sumita Sen,Naresh Singaravelu, The Hindu, ( JUNE 24, 2020, 3:04 PM) https://www.thehindu.com/data/data-domestic-violence-complaints-at-a-10-year-high-during-covid-19-lockdown/article31885001.ece
[15] Ajay Kumar v. Lata alias Sharuti, CRIMINAL APPEAL NO(S). 617 OF 20(@SLP(Crl.) No(s). 652 of 2019)(India).
[16] Lalita Toppo v. State of Jharkhand, CRIMINAL APPELLATE JURISDICTION No 1656/2015,(India).
[17] Roma Rajesh Tiwari vs Rajesh Dinanath Tiwari, Civil Appellate Jurisdiction Writ Petition No.10696 of 2017(India).
[18] Sadhana v. Hemant, RIMINAL REVISION APPLICATION (REVN) NO. 121 OF 2018(India).
[19] Reshma Begum v. State of Maharashtra & anr, CRIMINAL REVISION APPLICATION NO. 82 OF 2017(India).
[20] Vimlaben Ajitbhai Patel v. Vatslaben Ashokbhai Patel and ors, CASE NO.:
Appeal (civil) 2003 of 2008(India).
[21] Meenavathi vs Senthamarai Selvi , CRL.O.P.(MD)No.12092 of 2008
AND M.P.(MD)Nos.1&1 of 2008,(India).
[22] Smt. Haimanti Mal vs. The State of West Bengal, C.R.R. 3907 of 2016 (India).
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