INTRODUCTION

As per study conducted by the BMC Women’s Health who analysed the trends
and lessons on domestic violence faced by Indian women from 2001 to 2018.
The stated that from 2001 to 2018, most of the domestic violence cases were
filed under ‘cruelty by husband or his relatives’, with the reported rate of this
crime increasing by 53% over 18 years 1. The study has also highlighted that the
rate of cases of cruelty by husbands or relatives was 28.3 per 1,00,000 women
in 2018, which is an increase of 53% from 2001. The rate of reported dowry
deaths and abetment to suicide was 2% and 1.4%, respectively, in 2018. The
data analysed by the researchers was extracted from the annual reports of the
National Crimes Record Bureau (NCRB) under four domestic violence crime
headings – cruelty by husband or his relatives, dowry deaths, abetment to
suicide, and protection of women against domestic violence act. These trends
show us that cruel treatment of women in domestic household still prevails in
the society. These acts can be seen in form of Financial, sexual, physical and
psychological harassment and abuses The United Nations has defined violence
against women. It could be verbal or physical In this Article I would like to
through light on the issues related to domestic violence, and it’s various forms.

1
Mascarenhas A, “Domestic Violence Cases in India Increased 53% between 2001 and 2018: Study” (The Indian
ExpressApril 29, 2022) <https://indianexpress.com/article/cities/pune/domestic-violence-cases-in-india-
increased-53-between-2001-and-2018-study-7893930/> accessed May 1, 2022
 1.DEFINATION OF DOMESTIC VOILENCE

As per Sec 498A of the Indian Penal Code domestic violence can referred as
“Whoever, being the husband or the relative of the husband of a woman,
subjects such woman to cruelty shall be punished with imprisonment for a term
which may extend to three years and shall also be liable to fine.

Explanation. —For the purposes of this section, “cruelty means”—

(a) anywilful 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 health
(whether mental or physical) of the woman; or

(b) 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.2”

This section was introduced in the year 1983 to protect married women from
being subjected to cruelty by the husband or his relatives. A punishment
extending to 3 years and fine has been prescribed. The expression “cruelty” has
been defined in wide terms so as to include inflicting physical or mental harm to
the body or health of the woman and indulging in acts of harassment with a
view to coerce her or her relations to meet any unlawful demand for any
property or valuable security. Harassment for dowry falls within the sweep of
latter limb of the section. Creating a situation driving the woman to commit

2
Indian Penal Code 1860 1860
suicide is also one ingredient of “cruelty”. The offence under this Section of
IPC is cognisable if the information relating to the commission of the offence is
given to an officer-in-charge of a police station by the person aggrieved by the
offence or by any person related to her by blood, marriage or adoption or if
there is no such relative, by any public servant belonging to such class or
category as notified by the State Government in this behalf. Also, it is a non-
bailable offence.

Section 498-A was introduced in the year 1983 to protect married women from
being subjected to cruelty by the husband or his relatives. A punishment
extending to 3 years and fine has been prescribed. The expression “cruelty” has
been defined in wide terms to include inflicting physical or mental harm to the
body or health of the woman and indulging in acts of harassment with a view to
coerce her or her relations to meet any unlawful demand for any property or
valuable security. Harassment for dowry falls within the sweep of latter limb of
the section. Creating a situation driving the woman to commit suicide is also
one ingredient of “cruelty”.

The offence under Section 498-A IPC is cognisable if the information relating
to the commission of the offence is given to an officer-in-charge of a police
station by the person aggrieved by the offence or by any person related to her by
blood, marriage or adoption or if there is no such relative, by any public servant
belonging to such class or category as notified by the State Government in this
behalf. Also, it is a non-bailable offence. In the case Onkar Nath Mishra v.
State (NCT of Delhi) 3 it was observed by the Supreme Court that –

For deciding whether a charge is to be framed against the accused, it has to be

considered whether there is ground for presuming that the offence has been
committed. At this stage, even strong suspicion founded on material is enough

3
(2008) 2 SCC 561
and the court need not go deep into the probative value of the material on
record.

There are two essential ingredients of criminal breach of trust- the creation of an
obligation in relation to the property over which dominion or control is acquired
by the accused; and misappropriation or dealing with the property dishonestly
and contrary to the terms of the obligation created. In the present case, the Court
held that there are no allegations concerning entrustment or misappropriation of
the property by any of the appellants and thus, no case is made out under
Section 406 IPC.

To establish the offence under Section 498A, the consequences of cruelty which
are either likely to drive a woman to commit suicide or to cause grave injury,
danger to life, limb or health, whether mental or physical the woman or the
harassment of a woman, where such harassment is with a view to coercing her
or any person related to her to meet any unlawful demand, are required to be
shown. It was observed that there is no allegation of wilful conduct or
harassment by appellants 1 and 2 to attract the section. Further, the Court held
the allegation of misbehaviour on their part and demand of money and VCR, to
be an afterthought and not bona fide.

CAUSES OF DOMESTIC VIOLENCE

There are 4 main reasons for domestic violence to persist in India.

1. Male-dominated society: Even though women had risen to top positions,

India was & still remains a male-dominated country.

2. Lack of awareness of Laws: Victims of domestic violence are afraid to

protest as there is a lack of awareness or rather a lack of initiative to make them
aware of their rights.
3. Laxity in implementation of the existing Acts: No or fewer efforts are made
to increase awareness amongst the women by the authorities posted to
implement the Act.

4. Bureaucracy & Fear: If domestic violence is reported by a third party then

he/she is scrutinized as an intruder and problem maker by the community. The
bureaucracy associated with reporting domestic violence, and the lack of funds
for support groups add up to the continued domestic violence in India.
continued domestic violence in India.

There are many different theories as to the causes of domestic violence. These
include psychological theories that consider personality traits and mental
characteristics of the perpetrator, as well as social theories which consider
external factors in the perpetrator's environment, such as family structure, stress,
and social learning. As with many phenomena regarding human experience, no
single approach appears to cover all cases.

Researchers suggest it is useful to think of three sources of Domestic Violence:

1. Childhood socialization

2. Previous experiences in couple relationships during adolescence, and

3. Levels of strain in a person's current life.

People who observe their parents abusing each other, or who were themselves
abused may incorporate abuse into their behaviour within relationships that they
establish as adults (Kalmuss & Seltzer 1984) The various theories put forward
are:

Psychological theory: 80% of men have a personality disorder,

psychopathology, poor impulse control, and low self-esteem.

Behavioural, Social theories: External factors in the offender's environment

such as family structure, stress & social learning.
Resource theory: Women who are most dependent on the spouse for economic
well being (e.g. homemakers/housewives, women with handicaps, the
unemployed), and are the primary caregiver to their children, fear the increased
financial burden if they leave their marriage. Dependency means that they have
fewer options and few resources to help them cope with or change their spouse's
behaviour.

Social stress theory:

Inadequate finances or other such problems in a family may further increase

tensions. Violence is not always caused by stress, but maybe one way that some
people respond to stress. Some speculate that poverty may hinder a man's ability
to live up to his idea of "successful manhood", thus he fears losing honour and
respect. Theory suggests that when he is unable to economically support his
wife, and maintain control, he may turn to misogyny, substance abuse, and
crime as ways to express masculinity.

Social learning theory: People learn from observing and modelling others'
behaviour. If one observes violent behaviour, one is more likely to imitate it. If
there are no negative consequences (e. g. victim accepts the violence, with
submission), then the behaviour will likely continue. Often, violence is
transmitted from generation to generation in a cyclical manner.

Power and control theory: In some relationships, violence is posited to arise out
of a perceived need for power and control.

Mental illness: Psychiatric disorders are sometimes associated with domestic

violence, like borderline personality disorder, conduct disorder in childhood,
antisocial personality disorder, Bipolar disorder, Schizophrenia, Drug abuse &
personality disorder.
TYPES OF DOMESTIC VIOLENCE

Domestic Violence is a pattern of Coercive tactics that can include physical,

psychological, sexual, economic, and emotional abuse, perpetrated by one
person against an intimate partner, with the goal of establishing and maintaining
power and control. Domestic Violence occurs in all kinds of intimate
relationships, including married couples, people who are dating, couples who
live together, people with children in common, same-sex

partners, people who were formerly in a relationship with the person abusing
them, and teen dating relationships. Abusive behaviours are not symptoms that
someone is angry or out of control. An abuser makes a choice to exert power
and control over his or her partner. Abusive behaviours include physical,
emotional, sexual, social, and financial abuse.

Physical Abuse

Physical abuse often begins with less violent assaults such as pushing. As the
abuse continues, however, it becomes increasingly violent. Abusers often target
areas of the body that are usually covered with clothing because the injuries are
less likely to be visible to others. Acts of physical abuse include:

• Pushing • Restraining

• Shaking • Slapping

• Biting • Punching

• Kicking • Throwing objects at the victim • Target hitting

• Sustained beating • Abuse planned to cause the victim to miscarry

• Using weapons • Strangulation • Homicide

Emotional Abuse
Emotional abuse is a tool used by those who want to make their partners feel
scared, crazy, worthless, or responsible for the abuse. The abuser’s goal is
control over the victim. Emotional abuse may include:

• Making jokes about the victim

• Insults

• Criticizing the victim’s competence

• Ignoring the victim’s feelings

• Withholding affection as a form of punishment

• Blaming the victim for all problems

• Yelling at the victim

• Humiliating the victim in front of others

• Accusing the victim of being the abusive partner

• Threatening to take the children away from the victim

• Threatening physical violence

• Threatening suicide to punish the victim

Sexual Abuse

Sexual abuse is one of the least discussed, but most common, forms of domestic
violence. Sexual abuse includes:

• Sexual jokes that make the victim uncomfortable

• Treating women as sex objects

• Criticizing the victim’s sexuality

• Using sexual jealousy as a tool of control

• Uncomfortable or unwanted touch

• Withholding sex as punishment

• Demanding sex

• Flaunting affairs

• Rape

• Sex after beatings

• Forcing the victim to witness or participate in sexual activity with others

• Sexually assaulting the victim in front of the children

• Sexual torture

Social Abuse - Social abuse is used to isolate the victim from others in the
community. The fewer people the victim is connected with, the more control the
abuser has over the victim. Examples of social abuse include:

• Insisting that the couple spend all time together

• Discouraging the victim from seeing friends or family

• Forbidding the victim to see friends or family

• Monitoring the victim’s mail or phone calls

• Checking the odometer

• Restricting access to the car or car keys

• Telling others the victim is crazy or abusive

Financial Abuse

Abusers often attempt to establish financial control over victims. Victims who
are financially dependent on abusers have fewer resources for escape. Financial
abuse includes:
• Making all financial decisions for the household

• Keeping financial secrets

• Monitoring the victim’s spending

• Controlling the victim’s access to cash

• Controlling the victim’s access to a chequebook or credit cards

• Refusing to let the victim work

• Forcing the victim to turn over income to the abuser

LAWS FOR HELPING THE VICTIM –

The Protection of Women from Domestic Violence Act 2005 (PWDVA) was
brought into force by the Indian government on October 26, 2006. The Act was
passed by the Parliament in August 2005 and assented to by the President on 13
September; 2005. [7] The Act has 5 chapters & 37 sections. Below are the few
important sections of the Act:

Section 2 enumerates various definitions to be used in the Act.

Section 3 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 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,

“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; “sexual abuse” includes any conduct of a sexual nature that
abuses, humiliates, degrades or otherwise violates the dignity of woman;”
verbal and emotional abuse” includes:

(a) Insults, ridicule, humiliation, name-calling and insults or ridicule specially

concerning 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.

(i) “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.

Section 4: creates a social responsibility on members of the community at large

who have knowledge of an impending or already committed act of domestic
violence, to come forward to file a complaint on behalf of the victim, this
implies that even an individual has an obligation to react against violence.

Section 5: of PWDVA is a social enactment that creates various legal, social,

judicial, and administrative mechanisms to provide assistance to victims of
domestic violence. This section emphasizes upon the availability of services of
the Protection Officers; her right to free legal services under the Legal Services
Authorities Act, 1987; of her right to file a complaint under Section 498-A of
the Indian Penal Code (45 of 1860), wherever relevant.

Section 6: clarifies that Shelter Homes are bound to provide shelter.

Section 7: clarifies that the person in charge of a medical facility shall provide
medical aid to the aggrieved,

Section 8: of the Act specifies that, as far as possible, Protection Officers should
be women and should be appointed as full-time positions.

Section 9: of the PWDVA defines the duties and functions of the Protection
Officers.
Section 10: lays down the duties of Service Providers.

Section 11: lays down the various duties of the government to give the Act wide
publicity through the media, to conduct periodic sensitization and awareness
training of the state/central/police/judicial officers, to co-ordinate different
ministries/departments, periodical reviews, and to ensure that protocols for the
various ministries concerned including courts are prepared and put in place. The
most important essence of this enactment is Section 36 that the Act shall be, in
addition to and not in derogation of the provisions of any other law for the time
being in force.

Sections 12, 13, 14, 15 and 16 layout some of the provisions and procedures for
obtaining orders or reliefs.

Section 17 of the act allows every woman in a domestic relationship to “have

the right to reside in the shared household whether or not she has any right, title
or beneficial interest in it… The aggrieved person shall not be evicted or
excluded from the shared household or parts save in accordance with the
procedures established by law.”

Section 19 should not be confused with any provision for providing women
with property rights. It merely restrains the respondent from dispossessing or
disturbing the victim from the shared household. Through this Section, there
can be an order directing the respondent to remove himself from the shared
household, although no such orders could be passed against women. Orders can
also be passed restraining a respondent or his relatives from entering any
portion of a household where the victim resides. This Section can help victims
to secure an alternate accommodation, get directions for Police protection, for
the payment of rent and other payments, or for directions for the return of
property, stridhan or other valuables to the woman [8].
The purpose of PWDVA is to provide a remedy under the civil law which is
intended to protect women from being victims of domestic violence & to
prevent the occurrence of domestic violence in society. It is armed in providing
support to women facing domestic violence. Legal remedies pertain to civil
relief such as injunction, compensation and monetary relief. There can be no
arrest made on a complaint filed under this law.
CONCLUSION

Over the past 2-3 decades, there are a lot of efforts made by the NGOs ‟s, social
activists and from time to time by the Government to curb domestic violence
against women and safeguard their constitutional rights, but still, there is a rise
in domestic violence. The reason is incorrect implementation and misuse of
these laws by the miscreants; may it be the accused, the police or the lawyers. If
applied correctly the Protection of Women against Domestic Violence Act 2005
(PWDVA) is a powerful act. After the implementation of the act wide range of
cases was filed across the states of India and judgments were delivered under
PWDVA by the family courts, civil courts and few the supreme courts. It will
still remain worthless if there is a lack of awareness amongst the people of
society, which could be brought about by:

1. Educating every woman about their rights.

2. Removing fear and coming out of the traditional setup of tolerating violence.

3. Counselling all family members along with the victim when the case is
reported.

4. Creating awareness of social responsibility on members of society to report

domestic violence.

5. Awareness produced through media sources.

6. Sensitization of the police to these issues and the power is given to them.

7. Providing adequate assistance to the victim once the complaint is filed and
ensuring her safety.

8. Adequate funding and proper shelter homes by the Government

9. Lawyers should take on the responsibility of ensuring that each state is
discharging its duties effectively & is completely implementing the provisions
of the Act.

10. Lawyers should connect criminal, civil & family law while negotiating for
women‟s rights.

11. Inclusion of strict punishment for the false charge by the petitioner or
misuse of the law by the respondent.

Despite useful provisions and positive judgements by the various courts, there is
judgement given by the Supreme court in the case of Batra Vs Batra and
Bhaskarlal Sharma and others Vs Monica4, which severely limits the
definition of „Shared Household‟ and interpretation of cruelty faced by a
woman. To conclude it is, therefore, necessary that every member of society
and organizations are duty-bound to ensure

REFERENCES –

4
(2007) 3 SCC 169
1. https://www.researchgate.net/publication/

277178959_Domestic_violence_against_woman_Past_present_future

2. Sharma D <https://www.scconline.com/blog/post/2018/12/03/law-for-

laymen-section-498-a-ipc-and-allied-sections-cruelty-to-women/>

accessed April 30, 2021

3. Indian Penal Code 1860 1860

4. Sudersan H and Ramakrishnan N, “The Domestic Violence Act:

Constitutional Perspectives”

<https://www.legalserviceindia.com/articles/dmt.htm> accessed

May 1, 2022

5. “Domestic Violence Overview - Portland Community College” (2018)

<https://www.pcc.edu/illumination/wp-content/uploads/sites/54/2018/0

5/domestic-violence-overview.pdf> accessed May 1, 2022

6. Indian Penal Code - Ratan Lal Dhiraj Lal (36th Edition)