International Journal of Political Science, Law and

International Relations (IJPSLIR)

ISSN 2278–8832
Vol. 3, Issue 2, Jun 2013, 41-50
© TJPRC Pvt. Ltd.

PROTECTION OF WOMEN WITH DISABILITIES AGAINST DOMESTIC VIOLENCE-

A STUDY IN INDIAN CONTEXT

KANA MUKHERJEE
Assistant Professor, Faculty of Law, Kingston Law College Affiliated to West Bengal State University, West Bengal, India

ABSTRACT

Topic: Protection of Women with Disabilities against Domestic Violence-A Study In Indian Context

Gender justice has become a burning issue in today‟s world. This study specially deals with „differently able‟
women who are subject to various sorts of domestic violence.

In the international field, there are number of Conventions relating to disabled women. Similarly, in India there
are series of legislations to safeguard the rights of disabled women. The study highlights the provision of The Domestic
Violence Act, 2005 which ensures to protect women from any kind of domestic violence. The focus of study is to find out
the disabled women who are subject to domestic violence.

The study has analysed the role of the legislature and judiciary of India to understand the plight of the women
with disabilities. Finally, it has been concluded that in near future in a third world country like India where women are
discriminated and become easy prey to all kinds of crimes, then the condition of women having various kinds of
disabilities will definitely worsen; therefore, at the end, the researcher has provided some solutions so that the amount of
such torture and domestic violence over the disabled women can be reduced though it may not be completely eradicated.

KEYWORDS: International Conventions, Women with Disabilities, Domestic Violence, Crimes Against Women

INTRODUCTION

History proves that women played a pivotal role in the development of every civilization. Even the Indian social
reformers showed their deep concern over women issues like Sati, child-marriage, infanticide widowhood, purdah,
polygamy devdasi, women‟s education and others; though some of these evils have been eradicated, still many are deeply
rooted in Indian society.

In the post independence period Indian Constitution has ensured equal status to all which means equality not only
between men and men or women and women but also between men and women. The Government made sincere effort to
raise the status of women in the various fields through legislations. Compulsory education, Hindu Marriage Act 1955,
raising of marriageable age, the Adoption Act 1956, Dowry Prohibition Act 1961 are all in favour of women. Recently the
passing of the Prevention of Sexual Harassment Act 2013, amendments in the Indian Penal Code hereby certain rights like
acid attack, voidism, stalking, eve-teasing, harassment in any form and such other offences have been introduced which
have secured the position of women. But still comes like dowry deaths still continues and evils like child marriages,
premature consummation, early pregnancies, female infanticide, rape, eve teasing could not be eradicated from the society.

In this context if we focus our attention towards the condition of women with disabilities, the plight is clearly
evident. Census of 2001 shows that among the total population of disabled persons in India 40% are women. In this context
if we analyse the violence and discrimination borne by these unfortunate class then the ideals of justice equality non-
discrimination as enshrined in our Constitution seems to be futile.
42 Kana Mukherjee

In the international field there are certain important Conventions pertaining to women‟s rights. These Conventions
were ratified during the International Women‟s decade. The most significant of these is the Convention on the Elimination
of all Forms of Discrimination Against Women (CEDAW)1, which was adopted by the United Nations in 1979 and became
a legally binding agreement in 1981. Prior to the CEDAW, the International Covenant of Economic, Social and Cultural
Rights (1966)2 recognized the right of every individual to work in just and favourable conditions, which included fair
wages and equal remuneration for works of equal value without discrimination of any kind. It laid stress on children and
young person‟s need for protection from economic and social exploitation. Apart from this the recent Convention of United
Nations on the Rights of the Persons with Disabilities 20063 for the first time stated for the rights of women with
disabilities. They should not be subject to violence and any form of discrimination and to be truly treated as subjects and
not as objects in the society.

Article 6 of the Convention states that

 States Parties recognize that women and girls with disabilities are subject to multiple discrimination, and in this
regard shall take measures to ensure the full and equal enjoyment by them of all human rights and fundamental
freedoms.

 States Parties shall take all appropriate measures to ensure the full development, advancement and empowerment
of women, for the purpose of guaranteeing them the exercise and enjoyment of the human rights and fundamental
freedoms set out in the present Convention.

On the other hand the lexicon meaning of violence refers to any physical force or damage or injury to person or
property. According to Webster4 dictionary violence means exertion of any physical force like (a) violent treatment or
procedure (b) outrage or assault (c) strength energy displayed and such other acts of force and violence.

The Domestic Violence Act 20055 describes domestic violence as any conduct of the respondent if he (a)
habitually assaults or makes the life of the aggrieved person miserable by cruelty of conduct even if such conduct does not
amount to physical ill-treatment; or (b) forces the aggrieved person to lead an immoral life; or (c) otherwise injures or
harms the aggrieved person.

In the light of these definitions it is worthy to compare the status of able and disabled women in our society. In
developing countries like India, violence is recorded even before birth in the form of sex-selective abortions and killing of
just born females by parents desperate for a son. It continues throughout adolescence as girls are more likely to be raped
than their brothers. Disabled women are forced to go through the operation of hysterectomy which is very much against a
women‟s right. In some cases, women and girls have been forced to marry their attackers. When women become pregnant
before marriage, grow old or suffer from mental or physical disabilities, they are ostracized by the community they belong
to. Women, who are displaced, imprisoned or isolated in any way become prone to more attacks than others. During armed

1
Gupta Manjari and Chattopadhyay Ratnabali (2004), „Law and Violence against Women‟, An article pub. in
„The Changing Status of Women in West Bengal, 1970 -2000:The challenge Ahead‟ ed. Jasodhara Bagchi, Sage
Publications, New Delhi, p.111
2
This Convention was adopted and opened for signature, ratification and accession by General Assembly
resolution 2200A (XXI) of 16 December 1966
3
This Convention was on the Rights of Persons with Disabilities and its Optional Protocol was adopted on 13
December 2006 at the United Nations Headquarters in New York
4
Websters‟ New Collegiate Dictionary 1961, P 952
5
This Act was enacted to provide for more effective protection of the rights of women guaranteed under the
Constitution who are victims of violence of any kind occurring within the family and for similar such matters
Protection of Women with Disabilities Against Domestic Violence-A Study in Indian Context 43

conflict, assaults on women escalate including violence committed by both the enemy and their own armies6. The Person
with Disabilities Act 1995 has recognized seven kinds of disabilities like blindness, low vision, leprosy cured, hearing
impairment, locomotor disability, mental retardation and mental illness.

So if it becomes impossible for an able woman to bear with the violence, neglect and exploitation exerted on her
then how it will be possible for women with such disabilities to withstand such injustice? It can not be expected from a
woman with low vision or locomotor disability or with any other forms of disability to approach the court and demand for
their rights. Inspite of this fallacy the Domestic Violence Act 2005 do provide for protection to women subjected to
violence. It states that the moment a domestic violence event takes place; the aggrieved woman may report the event to the
Magistrate who refers the matter to the Protection Officer attached to that court. She can also approach the Service
Provider or the Protection Officer for help. They both can provide the aggrieved woman immediate medical help and
residence to live in a shelter home. The Protection Officer/Service Provider shall file what is called Domestic Incident
Report before Magistrate, who, if the medical help and residence are not already provided, may direct the Protection
Officer to arrange for the aggrieved woman those facilities. 7

The Magistrate receiving the Domestic Incident Report which is equivalent to FIR may take up enquiry into the
case and issue a notice to the respondent.

The reliefs the Magistrate can grant are: (1) Protection Orders (2) Maintenance Orders (3) Custody Orders and (4)
Compensation Orders. Protection Orders include orders of injunction restraining the respondent not to continue the acts of
domestics violence against the aggrieved woman. Maintenance Orders include grant of maintenance to the aggrieved
woman and her children if any.

The Custody Orders are made retaining the custody of children if they are with her or for restoration of children if
they are not in her custody. Compensation Orders are orders directing the respondent to pay for all the damages the
aggrieved woman suffered physically and mentally by reason of domestic violence 8.

In this context it can be well understood that it is rarely possible for a woman with disabilities to approach the
Magistrate facing such hazards.

Indian legislations relating to disability

In spite of this legal provision women with disabilities are more susceptible to violence than their able
counterparts. The study makes a brief survey on the existing legislations in India pertaining to disability like

 Mental Health Act 1987 - The Act can be described as a civil rights legislation which aims to regulate standards
in mental health institutions and to make provisions with respect to their property and affairs9.

 Rehabilitation Council of India Act 1992 - The Rehabilitation Council of India was set up by the Government of
India in 1986 initially as a society to regulate and standardize training policies and programmes in the field of
rehabilitation of persons with disabilities. The urgent need for minimum standards was felt necessary as the

6
Supra Note1 p1
7
Acharya N.K. (2005), „Commentary on Protection of Women from Domestic Violence Act, 2005 along with
The Protection Against Sexual Harassment of Women Bill, 2005 (Draft)‟, ed1 st , Asia Law House, Hyderabad,
p1
8
Ibid
9
National Human Rights Commission Disability Manual 2005, Published by-National Human Rights
Commission, New Delhi
44 Kana Mukherjee

majority of persons engaged in education; vocational training and counseling of persons with disabilities were not
professionally qualified.10

 Protection of Human Rights Act 1993 – After ratification of International Covenant on Economic, Social and
Cultural Rights (ICESCR) and International Covenant on Civil and Political Rights (ICCPR), India brought into
force the Protection of Human Rights Act, 1993. This Act provides for the establishment of National Human
Rights Commission and State Human Rights Commissions for better protection of human rights of all section of
people of our society.

 Persons with Disabilities ( Equal Opportunities, Protection of Rights and Full Participation ) Act 1995 -
The enactment is a great achievement of the Indian disability movement The Act spells out responsibilities of the
Government at all levels including establishment under its control . It lays down specific measures for the
development of services and programmes for equalizing opportunities for the enjoyment of right to education,
work, housing, mobility and public assistance in case of severe disability and unemployment. To execute the
mandated responsibilities, a Central Co-ordination Committee and State Co-ordination Committees are provided
in this Act. This historic legislation is the beginning of evolution of jurisprudence on the rights of persons with
disabilities in India for which disability issue have come into sharp focus.

 National Trust for Welfare of Persons with Autism, Cerebral Palsy, Mental Retardation and Multiple
Disabilities Act 1999 – As certain groups among the disabled are more vulnerable than others, a special
enactment for the protection of such persons, their property and well-being was felt necessary for witch this
enactment was passed and its aim is to fulfill a common demand of families who seeks reliable arrangement for
their severely disabled wards. The specific objectives of the Act are:

 To enable persons with disabilities to live independently.

 To promote measures for their care and protection.

 To extend support to registered organisation to provide need based services.

The role of the apex court in combating the evil of domestic violence

It is noteworthy to mention that the Supreme Court of India played a promising role in protecting the rights of
women against domestic violence. In the following case the Apex Court gave the judgment in favour of these women who
were victimized.

Allegation of Cruelty and Harassment by Husband

 Harjit Singh v. State of Punjab11

In this case it has been observed that the ingredients of section 306 and section 304B of Indian Penal Code 1860
are different and distinct12. In this case, no evidence has been brought on record to show that there has been any act of
omission or commission on the part of the accused, before the death of deceased to demonstrate that the appellant was
responsible for the same. It was noticed that the High Court, for the first time, in its judgment on a hypothesis observed that

10
Annual Report 2006-2007Published by Ministry of Social Justice & Empowerment, New Delhi
11
AIR 2006 SC 2855
12
Das P.K. (2007), „Protection of Women from Domestic Violence Act & Rules‟, Universal Law Pub. Co, ed1,
p.355
Protection of Women with Disabilities Against Domestic Violence-A Study in Indian Context 45

when the father came to see his daughter must have been insulted or felt hurt as she might have been subjected to extreme
harassment and cruelty.

Ingredients of Cruelty

 Shobha Rani v. Madhukar Reddi13

In this case there was continuous demand for money from in laws to the appellant. The cumulative effect of all the
circumstances and the evidence of parties lead to the conclusion that the demand of dowry was carried on with the support
of her husband. The High Court while dealing with this part of the case has observed that there is no evidence to show that
the demands were such as to cause harassment to the wife. But the Apex Court gave a new dimension to the concept of
cruelty. Explanation to section 498A of I.P.C. 1860 provides that any willful conduct which is of such a nature as is likely
to drive a woman to commit suicide would constitute cruelty. Such willful conduct which is likely to cause grave injury or
danger to life, limb or health (whether mental or physical health of the woman) would also amount to cruelty. 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 or any property or valuable security also constitute cruelty in some way or other. Hence the appeal was allowed.

Jurisdiction of Crime and Cause of Action

 Y. Abraham Ajith v. Inspector of Police Chennai 14

According to Blackstone15 “All crime is local; the jurisdiction over the crime belongs to the country where the
crime is committed”.

The crucial question in this case was whether any part of the cause of action arose within the jurisdiction of the
concerned Court. In terms of section 177 of the Criminal Procedure Code 1973 it is the place where the offence was
committed. In essence it is the cause of action for initiation of the proceedings against the accused.

It has been held that the expression “cause of action” has acquired a judicially settled meaning. In the restricted
sense, cause of action means the circumstances forming the infraction of the right or the immediate occasion for the action.
In the wider sense, it means the necessary conditions for the maintenance of the proceeding including not only the alleged
infraction, but also the infraction coupled with the right itself.

When these legal principles are applied, to the facts disclosed by the complainant in the complaint petition, the
inevitable conclusion reached by the Court is that no part of cause of action arose in Chennai and, therefore, the concerned
magistrate had no jurisdiction to deal with the matter. The proceedings was quashed and the Hon‟ble Supreme Court held
that the complaint be returned to respondent No. 2 who, if she so chooses, may file the same in the appropriate Court to be
dealt with in accordance with law. The appeal was therefore accordingly allowed.

Concern of Court on Involvement of Relatives of Husband in Crime

 Kans Raj v. State of Punjab16

The sum and substance of the case is that the prosecution has adduced best available evidence to prove the charge
against the accused. The statement of Kans Raj (PW 6) and Ram Kishan (PW 5) has nothing to prove that the deceased

13
AIR 1988 SC 121
14
(2004) 8 SCC 100
15
Blackstone Sir William (1765-1769), Commentaries on the Laws of England, e Clarendon Press, Oxford
16
AIR 2000 SC 232
46 Kana Mukherjee

Sunita Kumari was subjected to cruelty or harassment by them and hence committed suicide. It is not disputed that Sunita
Kumari committed suicide about 31/2 years after the marriage. The accused have not given any satisfactory account of even
high probability as to how Sunita Kumari died. There is a presumption under section 113A of the Evidence Act 1872 that
the suicide has been abetted by the husband or other relatives of the husband of the deceased. The accused have not been
able to rebut that presumption. It is also proved that Sunita Kumari was treated with cruelty on account of dowry.
Therefore the appeal was dismissed and the accused was accordingly prosecuted.

But in none of these cases the woman is a person with disability. In this respect the plight of a disabled woman is
further aggravated as they do not have any spoke person to demand for their rights. They are therefore neglected by their
families the society and also by the state. It can be noted that in all cases of domestic violence, the woman who has been
victimized suffers from some other kind of disability-whether it be mental or physical. Such disability caused due to sheer
torture or violence has not been recognised by the law; woman suffering from such mental or physical disability become
more conscious of their protection and security than to demand for rights as a person with disability.

There are instances of cases where the court has upheld the rights of the disabled person, but most of it relates to
education and employment instead of exploitation or violence.

In the field of education we find cases relating to admission to schools or colleges17, examination18 and other such
issues. In the field of employment the cases normally deals with appointment19, posting20, promotion21 and such other
related matters.Apart from education and employment there are landmark cases that relate to accessibility and mental
health , like in the case of Javed Abidi vs. Union of India AIR 1999 SC 512, where Indian Airlines has been asked to
modify it‟s structure so that it becomes disabled friendly.

There are cases of mental health also that deals with various matters like protective homes, mental illness,
criminal liability and other related issues like Sheela Barse vs Union of India 22 it has been held that jailing of non-
criminal, mentally ill persons is unconstitutional. All these cases have ingredients of harassment to disabled persons but
does not centres round women only. The Indian judiciary though concious of their rights has not yet been able to deliver
strong judgments so as to give complete protection to women with disability subjected to cruelty and harassment.

CONCLUSIONS

With due regards to the status of Indian woman in history and also in present society the following changes can be
brought about to solve the plight of the woman specially with disabilities to certain extent.

 Amendments in the Indian Constitution

In chapter IV-A of the Constitution, duty to honour woman may be inserted. Following amendment may be made
in Article 51-A(k)-“All the citizens of India shall have a duty to respect and honour a woman and renounce practices
derogatory to the dignity of woman” 23.

17
All Kerala Parents Association of Hearing Impaired vs. State of Kerala C.A. No.6120 of 2001
18
National Federation of Blind vs. Union Public Service Commission (1993) 2 SCC411
19
Nandkumar Narayanrao Ghodmre vs. state of Maharashtra and others jt 1995(8) S.C. 156
20
R. Govindarajan vs. Hindustan Petroleum Corporation Ltd. Manu / TN / 1279 / 2003
21
Nand Kumar Jivan Dalvi vs. Union of India (through the Director General) Central Administrative Tribunal
Mumbai 2005
22
(1986)3 SCC 632
23
Kant Dr. Anjani (2003), „Women and Law‟, P.462, 1 st ed
Protection of Women with Disabilities Against Domestic Violence-A Study in Indian Context 47

Similarly in Article 41 states that right to education and to public assistance in certain cases where the State shall,
within the limits of its economic capacity and development, make effective provision for securing the right to work, to
education and to public assistance in cases of unemployment, old age, sickness and disablement, and in other cases of
underserved want.

For the first time the Constitution in this Article refers to “disablement” which actually has reference to persons
with disabilities. These disabilities can be inborn or acquired later in life. The directions contained in this Article is for
making effective provision for securing right to work, education and public assistance incase of unemployment, sickness
and disablement. The expression „in other cases‟ also includes persons with disabilities.

 Amendment in the Person with Disabilities Act 1995, Domestic Violence Act 2005 and Other Relevant Laws

The Persons with Disabilities Act 1995 should have played a promising role; but unfortunately inspite of India
being a signatory to the United Nation Convention on the Rights of the Persons with Disabilities 2006 where there are
special provisions against discrimination and violence towards disabled women, no changes has yet been made in the
Indian legislations.

As the Domestic Violence Act 2005 exclusively centers round women, the rights of the disabled women may find
a place there also; On the other hand a chapter on women may also be incorporated in the Persons with Disabilities Act
1995, which would include strict penal measures to combat violence and inequality against disabled women.

The recently introduced statues like the Prevention of Sexual Harassment Act 2013 and the amendments made in
the India Penal Code should have included physically challenged women also. As these women needs special care and
protection, these acts should have special provisions to maintain their dignity and security.

 Active Role of the Government

An ombudsman or such kind of post of public officer can be set up in each State to enforce the social justice and
to ensure equal opportunity and rights to women. This authority should be competent to supervise the offences relating to
women and should be adequately empowered to guard the woman against social, economic and family crimes.

 Role of Women’s Organizations and NGO’s

Mere legislations are not enough. The time has come when the women‟s organizations and NGO‟s both at the
center and state level should work together and bring social awareness. These organisations on their own can take up issues
relating to domestic violence against woman with disabilities to different forums or media and also file cases in their
support; as because in near future, there can be thousand of cases where women with disabilities will be subjected to
domestic violence.

At the end, it can be concluded that only legislations are not the only solution; the judiciary and the government
should be conscious of the rights of the disabled women. The attitude of the society needs to change regarding disability.
The disabled persons truly can be termed as differently able persons and any issues of violence or exploitation to which
they are often subjected cannot be compartmentalized or set aside as secondary issues as it would cause a hindrance to the
development of our society as a whole. The women having disabilities needs to be protected not only against domestic
violence but from all other offences in the society at large because they are good human resource and have enough
potential to serve in the progress and development of our nation in the coming years.
48 Kana Mukherjee

Table of Cases

 Harjit Singh vs. State of Punjab, AIR 2006 SC 2855

 Shobha Rani vs. Madhukar Reddi, AIR 1988 SC 121

 Y. Abraham Ajith vs. Inspector of Police Chennai, (2004) 8 SCC 100

 Kans Raj vs. State of Punjab, AIR 2000 SC 232

 All Kerala Parents Association of Hearing Impaired vs. State of Kerala C.A. No.6120 of 2001

 National Federation of Blind vs. Union Public Service Commission (1993) 2 SCC411

 Nandkumar Narayanrao Ghodmre vs. state of Maharashtra and others jt 1995(8) S.C. 156

 R. Govindarajan vs. Hindustan Petroleum Corporation Ltd. Manu / TN / 1279 / 2003

 Nand Kumar Jivan Dalvi vs. Union of India through the Director General) Central Administrative Tribunal
Mumbai 2005

 Sheela Barse vs. Union of India, (1986)3 SCC 632

 Javed Abidi vs. Union of India, AIR 1999 SC 512

REFERENCES
International Documents

1. Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW), 1979

2. International Covenant of Economic, Social and Cultural Rights, 1966

3. Convention of United Nations on the Rights of the Persons with Disabilities, 2006

4. International Covenant on Economic, Social and Cultural Rights (ICESCR) 1993

5. International Covenant on Civil and Political Rights (ICCPR), India brought into force the Protection of Human
Rights Act, 1993

National Documents
Legislations
1. Hindu Marriage Act, 1955

2. Adoption Act, 1956

3. Dowry Prohibition Act, 1961

4. I.P.C., C.R.P.C. and Evidence Act

5. The Domestic Violence Act, 2005

6. The Person with Disabilities Act, 1995

7. Mental Health Act, 1987

8. Rehabilitation Council of India Act, 1992

9. Protection of Human Rights Act, 1993

Protection of Women with Disabilities Against Domestic Violence-A Study in Indian Context 49

10. Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995

11. National Trust for Welfare of Persons with Autism, Cerebral Palsy, Mental Retardation and Multiple Disabilities
Act, 1999

12. Prevention of Sexual Harassment Act 2013

Books

1. Gupta Manjari and Chattopadhyay Ratnabali (2004), „Law and Violence against Women‟ an article pub. in „The
Changing Status of Women in West Bengal, 1970-2000:The challenge Ahead‟ ed. Jasodhara Bagchi, Sage
Publications, New Delhi, p.111

2. Acharya N.K. (2005), „Commentary on Protection of Women from Domestic Violence Act, 2005 along with The
Protection Against Sexual Harassment of Women Bill, 2005 (Draft)‟, ed1 st , Asia Law House, Hyderabad, p1

3. Das P.K. (2007), „Protection of Women from Domestic Violence Act & Rules‟, Universal Law Pub. Co, ed1,
p.355

4. Kant Dr. Anjani (2003), „Women and Law‟, P.462, 1 st ed

Journal/Reports/Manual

1. National Human Rights Commission Disability Manual 2005, Published by-National Human Rights Commission,
New Delhi

2. Annual Report 2006-2007 Published by Ministry of Social Justice & Empowerment, New Delhi

Websites

1. http://www.un.org/womenwatch/daw/cedaw/

2. http://www.unhcr.org/refworld/docid/3ae6b36c0.html

3. http://ec.europa.eu/justice/discrimination/disabilities/convention/index_en.htm

4. http://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-4&chapter=4&lang=en