Domestic violence during COVID 19

Domestic violence during COVID 19

Domestic violence during COVID 19

Like in many other countries across the world, India’s prolonged corona virus lock-down has proved to be especially difficult for victims of domestic abuse. There has been an alarming surge in the cases of domestic violence during corona virus lock-down in India.

Spike in complaints domestic violence during COVID 19 Lock-down Period

According to an article in THE HINDU during the first four phases of the COVID-19-lock-down, Indian women filed more domestic violence complaints than recorded in a similar period in the last 10 years and 86% women who experience domestic violence do not seek help in India. In 2020, between March 25 and May 31, 1,477 complaints of domestic violence were made by women. This 68-day period recorded more complaints than those received between March and May in the previous 10 years[1]. There is a lot written linking the COVID lock-down and the surge in domestic violence cases. The Indian government has recognized this connection and the National Commission for Women has launched a Whatsapp helpline. This also shows the gravity and prevalence of the issue at hand. This data calls for an urgent action to control the incidents of domestic violence in India. It is clear that addressing domestic violence has become an urgent issue not only for the government, as it is a public health crisis and a criminal act but also for the society. To overcome the problem of Domestic Violence, we need to understand what Domestic Violence means.

Definition of Domestic Violence

In India Protection of Women from Domestic Violence Act, 2005 defines Domestic Violence extensively. Section 3 of the Act defines Domestic Violence as follows:-

 Definition of domestic violence.—For the purposes of this Act, any act, omission or commission or conduct of the respondent shall constitute domestic violence in case it—

(a) harms or injures or endangers the health, safety, life, limb or well-being, whether mental or physical, of the aggrieved person or tends to do so and includes causing physical abuse, sexual abuse, verbal and emotional abuse and economic abuse; or

(b) harasses, harms, injures or endangers the aggrieved person with a view to coerce her or any other person related to her to meet any unlawful demand for any dowry or other property or valuable security; or

(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. Explanation I.—For the purposes of this section,—

(i) “physical abuse” means any act or conduct which is of such a nature as to cause bodily pain, harm, or danger to life, limb, or health or impair the health or development of the aggrieved person and includes assault, criminal intimidation and criminal force;

(ii) “sexual abuse” includes any conduct of a sexual nature that abuses, humiliates, degrades or otherwise violates the dignity of woman;

(iii) “verbal and emotional abuse” includes—

(a) insults, ridicule, humiliation, name calling and insults or ridicule specially with regard to not having a child or a male child; and

(b) repeated threats to cause physical pain to any person in whom the aggrieved person is interested.

(iv) “economic abuse” includes-

(a) deprivation of all or any economic or financial resources to which the aggrieved person is entitled under any law or custom whether payable under an order of a court or otherwise or which the aggrieved person requires out of necessity including, but not limited to, household 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. Explanation II.—For the purpose of determining whether any act, omission, commission or conduct of the respondent constitutes “domestic violence” under this section, the overall facts and circumstances of the case shall be taken into consideration.

Factors responsible for Domestic Violence against women in India

There is no one single factor which can be accounted for  domestic violence against women. There are several complex and interconnected social, cultural, situational and individual factors which have made women vulnerable to the violence.

          In a male dominant society like in some parts of India, the notion that a man who cannot control his wife is not a man in real sense leads to aggressive behavior of male partner and the urge to control female partner leads to domestic violence. Abusers learn violent behavior from their family, people in their community and other cultural influences as they grow up. They may have seen violence often or they may have been victims themselves. some may have a personality disorder or psychological disorder while others may have learned violent behavior from growing up in a household where domestic violence was accepted as a normal routine in their family. Drug addiction may also contribute to violent behavior. However, above mentioned factors are only a few of the factors which lead to domestic violence.

Legal framework on Domestic Violence in India:-

          Under Constitution of India as indicated by the Article 14 the State shall not deny to any person equality before the law or the equal protection of the laws inside the domain of India.

Article 15 refuses segregation on the grounds of religion, standing, sex, race, and so forth, yet allows the State to make unique arrangements for specific classes of people, including ladies and kids.

Article 21 gives the privilege to life and freedom which includes the option to be liberated from brutality In Francis Coralie Mullin v. Association Territory Delhi, Administrator , the Supreme Court expressed, any demonstration which harms or harms or meddles with the utilization of any appendage or personnel of an individual, either forever or even briefly, would be inside the restraint of Article 21.

In Ahmedabad Municipal Corporation v. Nawab Khan Gulab Khan, the Supreme Court underscored the way that the privilege to life remembered for its ambit the option to live with human respect, putting together its sentiment with respect to a large group of cases that had been ruled for this suggestion. The privilege to pride would incorporate the privilege against being exposed to mortifying sexual acts. It would likewise incorporate the privilege against being offended.

          In 1983, domestic violence was recognized as a specific criminal offence by the introduction of section 498-A into the Indian Penal Code. This section deals with cruelty by a husband or his family towards a married woman. Following are the four types of cruelty are dealt with by this law:

  1. Conduct that is likely to drive a woman to suicide,
  2. Conduct which is likely to cause grave injury to the life, limb or health of the woman,

iii. Harassment with the purpose of forcing the woman or her relatives to give some property,

  1. Harassment because the woman or her relatives is unable to yield to demands for more money or does not give some property.

The punishment is imprisonment for up to three years and a fine. The complaint against cruelty need not be lodged by the person herself. Any relative may also make the complaint on her behalf. Section 498-A of the Indian Penal Code mainly covers dowry-related harassment. Even though marital rape is not recognized as a crime in India, forced sex with one’s wife can be considered cruelty under this section.

Sec. 304B of Indian Penal Code deals with Dowry death. According to this Section where the death of a woman is caused by any bums or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown, that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for dowry, such death shall be called “dowry death”, and such husband or relative shall be deemed to have caused her death.

The offence of dowry death is punishable with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life.

The special enactment on domestic violence, the Protection of Women against Domestic Violence Act 2005 prohibits a wide range of abuse against women which have been defined in the Act as discussed above. The Act covers women who are or have been in a domestic relationship with the abuser and who alleges to have been subjected to any act of domestic violence by the respondent. She has a right to get an order of protection against her husband and his family, to continue living in the same house i.e. she cannot be thrown out of her matrimonial home even if she reports her abusers, to claim maintenance, to have custody to her children and to claim compensation. This law not only protects women who are married to men but it also protects women who are in live-in relationships, as well as family members including mothers, grandmothers, etc. Under this law, women can seek protection against domestic violence, financial compensation, the right to live in their shared household, and they can get maintenance from their abuser in case they are living apart.

          The Act provides for six remedial protections: (1) a Protection Order (Section 18):-Protection orders for the victim’s safety can be issues against the respondent, and includes for when he commits violence, aid or abets it, enters any place which the victim frequents or attempts to communicate with her, restricts any form of assets of the victim or causes violence to people of interest to the victim.

(2) Residence Order (Section 19):- The magistrate may choose to restrict the respondent from the place of residence of both the parties if they feel that it is for the safety of the victim. Additionally, the respondent cannot evict the victim from the place of residence.

 (3) Monetary relief (Section 20):- The respondent has to provide relief to the victim to compensate for loss, including loss of earnings, medical expenses, any expenses incurred due to loss of property by destruction, damage or removal, and maintenance of the victim and her children.

(4)  Compensation Order (Section 22):- The Magistrate may on an application being made by the aggrieved person, pass an order directing the respondent to pay compensation and damages for the injuries, including mental torture and emotional distress, caused by the acts of domestic violence committed by that respondent.;

(5) Custody Order (Section 21):- Custody of children may be granted to the victim as required, with visiting rights to the respondent if necessary.

( 6) An interim or ex parte order:- The Magistrate may pass such interim order as he deems just and proper.

          In order to seek above mentioned remedies a woman must file a complaint with the police or protection officer or a service provider or with the Magistrate.  According to the section 32 of the Act a breach of protection order, or of an interim protection order, by the abuser shall be  shall be cognizable and non-bailable and shall be punishable with imprisonment of either description for a term which may extend to one year, or with fine which may extend to twenty thousand rupees, or with both under section 31 of the Act.

Landmark judgments of Supreme Court on domestic violence

Hiral P. Harsora And Ors vs Kusum Narottamdas Harsora And Ors.

CIVIL APPEAL NO.  10084  of 2016 (ARISING OUT OF SLP (CIVIL) NO. 9132 OF 2015):-  In this case the Supreme court held that complaint under Domestic Violence Act can be filed against female whether adult or non adult. The words ‘adult male’ u/s 2(q) struck out as these words discriminate between person similarly situated and are contrary to the object sought to be achieved by the 2005 Act. The Court held that it is clear that such violence is gender neutral. It is also clear that physical abuse, verbal abuse, emotional abuse and economic abuse can all be by women against other women. Even sexual abuse may, in a given fact circumstance, be by one woman on another. Also, if “respondent” is to be read as only an adult male person, it is clear that women who evict or exclude the aggrieved person are not within its coverage, and if that is so, the object of the Act can very easily be defeated by an adult male person not standing in the forefront, but putting forward female persons who can therefore evict or exclude the aggrieved person from the shared household. Regarding the word “adult”, the Court said that it is not difficult to conceive of a non-adult 16 or 17 year old member of a household who can aid or abet the commission of acts of domestic violence, or who can evict or help in evicting or excluding from a shared household an aggrieved person. It was held that even the expression “adult” in the main part is Section 2(q) is restrictive of the object sought to be achieved by the kinds of orders that can be passed under the Act and must also be, therefore, struck down, as this word contains the same discriminatory vice that is found with its companion expression “male”.

 Ajay Kumar v. Lata alias Sharuti dated on April 8, 2019

In this case the Supreme court held that in accordance with the proviso to the section 2(q) of the Protection of Women from Domestic Violence Act, 2005, indicates that both, an aggrieved wife or a female living in a relationship in the nature of marriage may also file a complaint against a relative of the husband or the male partner, as the case may be.

Why problem still exists?

          In India, in spite of the fact that an act of domestic violence is recognized as an offence and is made punishable as per above laws, the problem of domestic violence still persists and during lock-down it has increased to a greater extent. Strong laws and public policies are essential steps toward combating such violence. But the real solution lies in a culture shift, in the world, and in each of our homes.

Suggestions:-

          Apart from the above laws, following are the some of the measures and suggestions which if implemented may curb the menace of the Domestic Violence in India. These are as under:

  1. In every home, awareness about gender equality and women’s rights should be infused in boys and girls from a very early age in order to bring about a change in the mindset of the future generation.
  2. . It is quintessential to foster economic independence in women which in turn will empower women and will make her confident and less prone to abuse.
  3. Existence of this problem requires change in social attitude. Societal attitudes justifying domestic violence from men as well as women have a huge bearing. Acceptance and understanding of the simple facts i.e. what counts as violence and that it is not acceptable behavior towards women can prompt more women to recognize it, report it to their friends and family even if not immediately to the authorities. As a society we need to strengthen our social support system to create safe spaces where women feel comfortable to discuss these issues.
  4. Discussions on women’s issues with victims and key personnel could be promoted through the media, to give a new venue to the airing of the complaints and finding solutions to the offences. Media should be used to sensitize the officials and the public about domestic violence so as to develop a positive attitude towards women in general, and women victims, in particular.
  5. There should be a special court with a woman judge and magistrate in each district to handle domestic violence cases. Only women magistrates should try cases of violence against women. Mobile courts should be introduced as an effective strategy to provide justice to the victims of domestic violence. Law enforcement should be done by the co-ordinates efforts of police.There should be strict laws for the prevention of vices such as alcoholism and drug addiction.

[1]. THE HINDU, Article “Data | Domestic violence complaints at a 10-year high during COVID-19 lock-down “, June 22, 2020

Also Read:IMPORTANT JUDGMENT ON CIVIL PROCEDURE CODE 1908

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Sangeeta Yadav

"Sangeeta Yadav is a practicing lawyer at Rajasthan High Court she has completed her law from University of Rajasthan."