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Dissertation 1

Bachelor of law (Babasaheb Bhimrao Ambedkar Bihar University)

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DOMESTIC VIOLENCE AGAINST

WOMEN IN INDIA
A Dissertation
SUBMITTED IN PARTIAL FULFILLMENT OF THE REQUIREMENT
FOR AWARD OF THE DEGREE OF

BBA. LL.B
in
LAW

UNDER THE SUPERVISION OF UNDER THE CO-SUPERVISION OF

PROF. SD SHARMA PROF. SANJEEV KR. CHADDHA
(Associate Professor) (Associate Professor)
DEPARTMENT OF LAW DEPARTMENT OF LAW

SUBMITTED BY
YASH KUMAR SINGH
BBA.LL.B
DEPARTMENT OF LAW
Enrolment No.-269/ 15

DEPARTMENT OF LAW
(SCHOOL FOR LEGAL STUDIES)
BABASAHEB BHIMRAO AMBEDKAR UNIVERSITY
(A CENTRAL UNIVERSITY)
VIDYA VIHAR, RAEBARELI ROAD, LUCKNOW-226025, U.P.

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DECLARATION

I, Yash Kumar Singh hereby declare that the dissertation titled "Domestic
Violence against Women in India" a bonafide work under taken by me under the
supervision of Prof. SD Sharma, Department of Law, School for Legal Studies,
Babasaheb Bhimrao Ambedkar University, Lucknow for partial fulfilment of the
requirement of the degree of BBA.LL.B (HONS.) in Department of Law. No part of
this dissertation has formed the basis for the award of any Degree or Diploma for any
other Institution or University.

Yash Kumar Singh

BBA.LL.B (HONS.) 10th Semester
Enrolment no.269/15
Department of Law
School for Legal Studies
Babasaheb Bhimrao Ambedkar University
(A Central University), Lucknow

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Letter No:………….

Date………………..

CERTIFICATE
The dissertation titled "Domestic Violence against Women in India" submitted
by Yash Kumar Singh, Enrolment No. 269/15 as part of the partial fulfilment of the
requirement for the Degree of BBA.LL.B (HONS.) in Department of Law is
forwarded for evaluation.

PROF. SD SHARMA PROF. SANJEEV KR. CHADDHA

(Supervisor) (Co-supervisor)
Associate Professor Associate Professor
Department of Law Department of Law
School for Legal Studies School for Legal Studies
BBAU, Lucknow BBAU, Lucknow

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ACKNOWLEDGEMENT

It is by the grace and will of the Almighty that I have reached the
finishing stage of my BBA.LL.B (Hons.) dissertation work and it feels
good. I would like to express my deepest gratitude for the innumerable
gesture of help, co-operation and inspiration that I have received from
my teachers, elders, and friends and well-wishers during the course of
this dissertation work.
Firstly, I am thankful to my supervisor Prof. SD Sharma,
Department of Law, School for Legal Studies, Babasaheb Bhimrao
Ambedkar University, Lucknow. Her discipline, punctuality for work
has always amazed and inspired me. She has shown me the right
direction, assisted in dissertation writing and drafting.
I am also grateful to my co- supervisor Prof. Sanjeev Kr
Chaddha, Department of Law, Babasaheb Bhimrao Ambedkar
University, Lucknow, for providing a constant source of information,
support, cheerful company.
I am immensely happy and thankful to All Faculty Members,
Department of Law, School for Legal Studies, Babasaheb Bhimrao
Ambedkar University, Lucknow, for their valuable suggestions,
guidance, encouragement and moral support during the course of this
study.
I would like record my thanks to all my seniors and friends
Babasaheb Bhimrao Ambedkar University, Lucknow, for their
valuable suggestions, stimulating discussions and cooperation
regarding my research work.

Finally, I have no words to express affection and moral support of

my parents and all my family members for their indispensable
encouragement, selfless sacrifice, sustained inspiration and invaluable
assistance throughout my life.

(Yash Kumar Singh)

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Table of Contents

Page No.
Candidates declaration
certificate from the supervisor
Acknowledgement i
Table of contents ii-v
Abbreviations vi-viii
Table of Cases ix-xi

Chapter – I
Introduction 1-18
1.1. Status during Vedic Age 2-4
1.2. Ancient & Medieval Periods 4-5
1.3. Domestic violence in mythological context 5-9
1.4. Modern Period 9-12
1.5. Legislative History of the Act of 2005 12
1.6. Inception of the Act 12-13
1.7. Legislation on Violence Against women : The Indian 13-17
experience
1.8. Campaign for the law on Domestic violence 17-18
Chapter – II
Domestic violence : concept, features, magnitude, 19-66
triggers and scope
2.1. A definition of domestic violence 24-39
2.1.1. Definition under criminal law 26-29
2.1.2. Definition under special laws 29-30
2.1.3. Definition under civil law 30-31
2.1.4. Definition under proposed law 31-33
2.1.5. The protection of women from domestic violence Act, 34-39
2005
2.2. Feature of domestic violence 39-49
2.2.1. Domestic violence in Ancient Indian Society 40-45
2.2.2. Domestic violence in present Indian Society 45-49
2.3. Magnitude of the Problem 50-57
2.3.1. Physical Abuse 51
2.3.2. Sexual and Rape in Inmate Relationships 51-52

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2.3.4. Psychological and Emotional Abuse 52-57

2.4. Triggers for Domestic Violence 57-60
2.5. Causes of Domestic Violence 61-64
2.5.1. Patriarchy and Masculinity 61
2.5.2. Gender Roles 61
2.5.3. Family Environment & Prevailing Dynamics 62
2.5.4. The Existing Power relations in the family 62-63
2.5.5. Dowry 63
2.5.6. Early Marriage 63
2.5.7. Other factors 63-64
2.6. Scope of the problem 64-66
Chapter – III
International Scenario 67-88
3.1. Provisions under International conventions 68-72
3.2. Convention on the Elimination of All forms of Discrimination 72-74
Against women, 1979
3.3. Convention Against Torture And Other Cruel, Inhuman Or 74-75
Degrading Treatment or Punishment, 1984
3.4. 1st World Conference On Women, Maxico, 1975 75-79
3.5. Special Rapporteur On Violence Against Women Warns Of 79-81
Threats To Gains on Women’s Human Rights, 2004
3.6. The United Nations 4th World Conference On Women 81-83
3.7. Charter Of United Nations, 1945 (Relevant Provisions) 83-84
3.8. Universal Declaration of Human Rights, 1948 (Relevant 84-86
Provisions)
3.9. International Covenant On Civil And Political Rights, 1966 86-87
(Relevant Provisions)
3.10. United Nations World Conference On Human Rights, 1993 87-88
(Relevant Provisions)

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Chapter – IV 89-107
Protection of women by domestic violence act, 2005:
an overview
4.1. What In Domestic Violence 90-92
4.2. Domestic Relationship 92-93
4.3. Who can claim beneficiaries under the Act 93-94
4.4. Shared Household 94
4.5. Protection Provided to women under the Act Right to Reside 94
in a Shared Household
4.6. Right to Obtain Assistance and Protection 95
4.7. Right to Issuance of orders 95-97
4.8. Complain and action on Complain under the Act 97-98
4.9. Appeal 98
4.10. Highlights of the Act 99-104
4.11. Critical Appraisal of the Act 104-107
Chapter – V
Judicial approach towards the protection of women 108-137
from domestic violence act, 2005
5.1. Case Laws on Section 2 108-112
5.2. Case Laws on Section 12 112-116
5.3. Case Laws on Section 17 116-119
5.4. Case Laws on Section 18 119-124
5.5. Case Laws on Section 19 124-126
5.6. Case Laws on Section 20 126-129
5.7. Case Laws on Section 23 130
5.8. Case Law on Section 24 131
5.9. Case Law on Section 25 131-132
5.10. Case Laws on Section 29 132
5.11. Bad Law and Good Judge Policy 133-137
Chapter – VI
Conclusion and suggestions 138-160
6.1. Can There be Human Rights Without Gender Justice 138-145
6.2. Consequences of Domestic Violence 145-148
6.2.1. Physical Consequences 147
6.2.2. Psychological and Emotional Consequences 147-148
6.2.3. Sexual and Reproductive Consequences 148

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6.3. Intervention Strategies and Recommendations 148-156

6.4. Required Remedial Actions 156-160

Bibliography 161-164

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ABBREVIATIONS

AIC - All India Cases

AIDS - Acquired Immuno Deficiency Syndrome

AIR - All India Reporter

All - Allahabad

ALT - Allahabad Law Times

Annex. - Annexure

AP - Andhra Pradesh

Bom - Bombay

CEDAW - Convention on Elimination of All forms of Discrimination

Against Women

Ch. - Chapter

Chh. - Chhatisgarh

Cr. L.J. - Criminal Law Journal

Cr. L.R. - Criminal Law Review

Cr. P.C. - Criminal Procedure Code, 1973

D/o - Daughter of

DB - Division Bench

Del - Delhi

DLT - Delhi Law Times

DMC - Divorce and Matrimonial Cases

DMMA - The Dissolution A Muslim Marriage Act, 1939

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DVA - Domestic Violence Act

Ed. - Edition

Eg. - For Example

GOI - Government of India

HC - High Court

HIV - Human Immuno Deficiency Syndrome

HMA - Hindu Marriage Act, 1955

Ibid - Ibidem (at the same place)

IDA - Indian Divorce Act

i.e. - that is

IIPS - International Institute for Population Sciences

IPC - Indian Penal Code

Ker. - Kerla

KLJ - Kerla Law Journal

Mad - Madras

MP - Madhya Pradesh

NCT - National Capital Territory

NCW - National Commission for Women

NFHS - National Family Health Survey

NGO - Non Government Organization

No. - Number

NOC - Notes of Cases

P. - Page

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P.m. - Post Meridiem

PMDA - The Parsi Marriage and Divorce Act, 1939

P.P. - Pages

Raj. - Rajasthan

R.V. - Rig Veda

S/o - Son of

SC - Supreme Court

S.C.C. - Supreme Court Cases

SHO - Station House officer

SMA - Special Marriage Act

T.V. - Television

UN - United Nations

US - United States

USAID - United States Agency for International Development

V. - Versus

viz. - Namely

Vol. - Volume

WHO - World Health organisation

WRI - World Resource Institute

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Table of Cases

[A]
1. Abhijit Bhikaseth Auti V. State of Maharashtra, 2009 Cr LJ 889 : AIR
2009 (NOC) 808 (Bom).
2. Ahammad S/o Late Kunhabdulla V. Laila D/o Assaina, 2007 T1 Ker
0-19.
3. Ajai Kant V. Alka Sharma, 2008 Cr LJ 264(MP).
4. Amit Sundra V. Sheetal Khanna, (2008) 1DMC 58 : 2008 Cr LJ 66
(Del).
5. Aruna Pramod Shah V. Union of India, 2008(2) CC Cases (Del HC)
356.
[B]
6. Bagadaram V. State of Rajasthan, (2008) Cr LJ (NOC) 1031 (Raj).
[C]
7. C.V.S. Ravi V. Ratna Sailaja, 2008-TL MAD-0-2414.
[D]
8. Dastane V. Dastane, AIR 1975 SC 1534
9. Dr. Vinod Prashar V. State of Uttar Pradesh, 2008 Cr LJ (NOC) 837
(All).
[K]
10. Karthibeyan V. Sheeja, (2008) II DMC 92 : (2008 Ker LT-1-75) (Ker).
11. K.E. Jose V. State of Kerla, 2007 Cr LJ (NOC) 476 (Ker).
12. Kundula Bala Subrahmanyam V. State of Andhra Pradesh, 1993 (2)
SCC 684.

[M]
13. M.A. Mony V. M.P. Leelamma, (2007) 2 KLJ 20 2007 Cr LJ 2604

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(Ker).
14. Maya Devi V. State of NCT Delhi, 16 ILR 2007 Del 1568.
15. Milan Kumar Singh V. State of Uttar Pradesh, 2007 Cr LJ 4742 (All).
16. Mohammad Maqeenuddin Ahmed V. State of Andhra Pradesh, 2007
Cr LJ 3561 (AP).
17. M. Palani V. Meenakshi, AIR 2008 Mad 162.
[N]
18. Neetu Mittal V. Kanta Mittal, AIR 2009 Del 72 : 152 (2008) DLT 691.
19. N. Nirmala V. Dr. Gandala Balakotaiah, (2008) 3 ALD 486 : (2008) 2
ALT 241 (AP).
[P]
20. P. Chandera Sekhra Pillai V. Valsala Chandran, (2008) DMC 83 :2007
Cr LJ.
[R]
21. Rajesh Kurre V. Safurabhai, (2009) 1 MPHT 37 : AIR 2009 (NOC)
813(Chh).
22. Raj Kumar Rampal Pande V. Sarita Raj Kumar Pande, AIR 2009
(NOC) 1013 (Bom).
23. Roth V. United States, 354 US 476.
[S]
24. Sarbjyot Kaur Saluja V. Rajinder Singh Salauja, (2009) 159 DLT 629 :
(2009) 155 PLR 2.
25. Smt. Ratnabai Jaysingh Patil V. State of Maharashtra, Crim.
Application No. 470 of 2008.
26. Sonia Mann V. State, 2010 (1) Crimes 38 (Del).

27. S.R. Batra V. Taruna Batra, (2007) 3 SCC169: AIR 2007 SC 1118:
(2007) 136 DLT 1 : (2007) 2 Cr LR 1582.

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28. Sulochana V. Kuttappan, 2007 Cr LJ 2057 (Ker).

29. Sunil Sharma V. Vinita Sharma, AIR 2009 (NOC) 1021 (Raj).
30. Suresh Khallar V. Vijya Kumar Khullar, AIR (2008) Del 1 (2008) 148
DLT 685(DB).
[V]
31. Vimla Ben Ajit Bhai Patel V. Vatslar Ben Ashokbhai Patel, (2008) 4
SCC 649 : AIR 2008 SC 2675 : (2008) 65 AIC 38.
32. Vinita Saxena V. Pankaj Pandit, (2006) 3 SCC 778.

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CHAPTER-I
Introduction

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Chapter - I

Introduction

“Women are deities of prosperity. By cherishing women, one cherishes

the goddess of prosperity herself and by afflicting her, one is said to pain the
goddess of prosperity.”

(Anusasana Parva, Mahabharata)

O’ cruelty, why the victim is generally a women. Is it that she is

physically a weakling? It is that she is an embodiment of patience and
tolerance and is used to sufferings without any murmur? Even if it is so,
social justice and human right, a legally enforceable philosophy, demands
treatment decorated with decency and decorum. Understanding that violence
against women in intimate relationships is a violation of human rights. The
cultural heritage of every civilization did embark on a hypothesis that human
being is divine and an incarnated creature of God. But alas! this indelible
concept has been distorted in the case of womenfolk. Various legislative
measures were adopted but proved an exercise in futility. Alarming cases of
cruelty rather barbarity were registered inspite of existence of frightening
provisions of law which can cause shiver even in the spinal cord of hard core
criminals.

Violence against women is an all pervasive phenomenon irrespective

of place, religion, society. In a paternal society women is treated no better
than slave. Moreover, the women is treated as a second class citizenry. They
are in back seat far from the men. Though the half world’s population is

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women, still they suffer even of 21st century on days, the course of
discrimination. The women comprise 66% of the world’s illiteracy and 70%
of the world’s poor. Therefore, the problem spells for establishment of a just
and equitable social order, where no body can be treated or exploited by
another as unequal. The Convention on Elimination of All forms of
Discrimination Against Women is the main foundation of rights in respect of
women to which 166 countries including India are members till date. The
Convention inter alia recognized that the discrimination against women in
some areas, hamper economic growth and detrimentally hampers the society
at large.

Earlier legislations in India have given the women the powers in

respective fields but particularly, so far as the torture, cruelty and harassment
are concerned the provision of sections 498A, 304-B of Indian Penal Code
and the Dowry Prohibition Act of 1961 are basic provisions.

The law itself becomes failure though not fully and it becomes
necessity for enacting the special legislations. Perhaps these grounds national
and international bounties compelled the Indian Government to enact the
Protection of Women from Domestic Violence Act of 2005 for making
restrictive provisions for errant family members for prohibiting harassment or
any violence against women and girls.

Before discussing the law relating to domestic violence the analysis of

the status of women may provide a fertile land to discuss the violence against
women.

1.1. Status During Vedic Age :-

The status of women is marginalized from Vedic age to till date. The
Vedic era, however, was the golden era as far as equality of status and
freedom are concerned. In “Gurukulas” women studied with men and many

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women were well versed in the Vedas. They are actively associated with men
in every social, religious and ritual ceremony. In this period women were
considered an equal partner and enjoyed equal status and prestige. These
were however sporadic instances and not the general customs. In number of
places in Vedas there are prayers even for animals but not for daughter.

There are passages in the Vedas which show that the Aryans did not
have always the highest opinion of women. Verse 17 of Rig Veda 8.33, says
that :

The mind of woman brooks not disciplines, Her intellect hath little
weight.1

We also find such statement in the Rig Veda.

With women there can be no lasting friendship; hearts of hyenas are

hearts of women. 2

Even if we scan the Dharam Sastras we find mixed instances about the
status of women. Dr. Y.K. Tiwari in “Status of Hindu Women and Efficacy
of Protective Legislation” says that in vedic times she was regarded as equal
partner, friend and equal sharer in joy and sufferings of her husband’s life
enjoying a status and prestige in society but Sutra and Smiriti period tell
somewhat a mixed question.

Some of the verses do speak that the status of women took a nosedive.
According to Gautama, a wife is not independent with regard to the
fulfillment of the sacred law. Baudhayana says that women do not possess
any independence and they are protected in all stages of their lives. Varistha
says that a women is not independent; the males are her masters. Coming to

1
. R.V. 8.33.17
2
. R.V. 10.95.15

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the period of Smritis Mamu says that in childhood a female must be subject
to her father, in youth to her husband, when her lord is dead to her sons, a
woman must never be independent. At another place Manu says that husband
is a deity to a wife; Husband is her relative; Husband is her guru.

To her husband is dearer that of her own life ; he is to be obeyed

primarily. These verses do indicate that women were considered commodity
and that to very inferior. However, Manu in another verse very high of the
women when he says, “Women must be honoured and adorned by their
fathers brothers, husbands and brothers in law who desire (their own)
welfare”. Manu further says that “Where women are honoured, there the
Gods are pleased; but where they are not honoured, no sacred right yields
rewards”.3 Manu was however partial to men in some other respects by
putting women on a pedestal as a source of daily ‘sukh’, or comforts for the
life. Thus in the ‘Smritik’ era the honourable status of women gradually
started declining. Manu stated that ‘there is a vital structural difference
between man and woman’. As such, a woman could not possess an
independent status. It was laid down that she had to depend on man from
cradle to grave. They were denied right to property, divorce, freedom and
independence.

1.2. Ancient & Medieval Periods :-

In Kautilyan ‘Arthashastra’ it has been said that ‘for a woman there is

no greater God than her husband’. She was considered to be source of all
evils.

Thus women’s role was almost insignificant during ancient India. It

may however be mentioned that in ancient India many women belonging to
aristocracy held power and position and richly endowed with wealth. It is
3
. Refer Manu III 56-58

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also clear that two categories of women were empowered, whether they
belonged to the Hindu or the Muslim or whether rich or poor. The first
category were women who devoted themselves to “Bhakti” or devotion to
God and second were courtesans. Several Muslim invasions, too added to the
misery of women. These were both political and social movements which
impacted on their situation. The condition of women in India, however, came
to be worst during the Muslim rule.

1.3. Domestic Violence In Mythological Context :-

“India lives in the village”, this allegorical remark by the Father of

Nation, defined the real picture of Indian Society. Indian society is quite
unique in the angle of world-panorama. Our traditional concept of family is
built upon values, and hierarchy is pillar of this formation. Our national epic
Ramayana and Mahabharata are value-based legacy of Indian society, and its
core subject is family and its extended form, society. Numerous lessons
prescribed in our classical literature responsible for the ‘domestic violence’,
for the teaching of masses. The incidences narrated in our mythology are of
natural or supernatural character, these characters provide us moral lesson in
way of life. Those lessons are universal not confined in classical period only.

Domestic violence is not a separate issue of the society; it is an

endemic feature of community life. As family is a vibrant unit of society,
direct or indirect positive or negative impacts are obvious. It we look back in
our sociological text, domestic violence is neither new in our society nor
waned with time. It is the same but the modern life style and social
transformations have given a different dimension. Our family is an institution
that is interweaved by emotional cord of whole family members. The
parameter of happiness and unhappiness depends on every single member of
the family.

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In the context of Indian society, domestic violence depends more on

emotional mindset rather than rational or material. Likewise, other
components for domestic violence are also differing from western
counterparts. Several norms and legacy prevalent in the local society are
primary factors for domestic violence. For example dowry system, social
status, values, caste, creed etc.

Our two national epics, Ramayana and Mahabharata are full of moral
based family saga. Its core issue is of family affair and fable of justice and
injustice. The subject treats with every aspect of domestic life spreading from
local to abroad. The finer points of the subject are about humanity and
society. A minute observation may reveal how every aspect of human life
explored meticulously on pages. Why Purushottam Ramchandra went to the
forest for long 14 years? The answer is very simple to avoid domestic
violence! Why Pancha Pandava compelled to exile in Forest? The answer is
the same to avoid domestic violence! So; domestic violence is not new, it is a
perennial just changing with time in different form. These two classics are so
close to human mind that these are perceived as our own tales in book form
and its contents are time-tested complex issues of domestic affairs.

Though every society is exposing to the global aspects, and domestic

violence is twisting with global factors and progressing accordingly. But
dowry and caste are two local issues still nagging our society in conjugal life.
Indian society is very complex in nature. Generations after generations are
facing two facets of society, society of progressive mind and society of
traditional mindset. Traditional concepts give advantage to nurture the old
customs of society like dowry and caste system whereas, progressive mind do
not stand for these old concepts. For illustration, if a young man of joint
family, marriages in a different caste, traditional minded might not accept the
new development in their family thus a family feud may take place resulting

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in long domestic violence until or unless the integrated family put a full stop
by dissecting into a nuclear one. In Ramayan, Rakhshas Kanya Surpanakha,
sister of Ravana, appeared before Lakhsman as a beautiful lady and proposed
for marriage but denied and when the lady insisted for the conjugal bond by
force brother Lakhsman dissected her nose and the result of this episode was
completed in a war that was fought between respective brothers Lord Rama
and Rakhsas Ravana. So, a nuance of caste feelings between Rakhsas and
Devata was hidden in this episode as epical-treatment.

Dowry system is not new but the parochial view distorted it over the
years and became an evil practice in the present society. In ancient times,
dowry was given as a token of love or blessing from an able side to other.
Classical instances are there “Rajya Saha Kanyadan”, but now it has become
a mandatory system in the pretext of blessing. Imposition of dowry as pre-
condition for solemnization of nuptial tie-up, marriage becomes a institution
of contractual bond voiding the finer feeling of human bond. Even, if the
concerned groom is not willing to accept this kind of blessing from an
affluent bride side on moral ground, sarcastically people may be labelled as a
penny-pinching natured, a stigma in society.

Polygamy, extramarital affairs, gambling and alcoholism are few

factors persisting in our modern society and causing domestic violence.
These elements were also existed from the time immemorial but in different
form.

As prevalent in society, specially, amongst royal classes, Raja

Dasharatha married to Kaushalya, Kaikaiyee, and Sumitra. But petty disputes
amongst these three queens led to exile Ramachandra for 14 years and king
Dasharatha could not bear the isolation of beloved son Rama and grief
stricken king left his heavenly body premature. The sad demise of king

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Dasaratha was out of domestic violence due to jealousy amongst queens and
rivalry for crowing their own son.

Alcoholic disorder and lascivious activities were prevalent in classical

period, enumerable references of such incidences that caused havoc in
domestic as well as community life. In mythology, portrayal of Indrasabha,
gives the impression of Nari, Sura, Shingashana. Apsaras like Urvashi,
Menka, Rambha were old versions of present bar dancer; a menace for
domestic violence indeed. As doted in epic, Devraj Indra under the influence
of Somrasa, encroached the line of modesty and gratified his carnal desire
with Gautam Patni Ahalya, for this misdemeanour Rishi Gautam cursed him.
This incident must have created rift between Indradev and his wife Sachhi.

Gambling, an age-old phenomenon, also poses serious risk for

domestic violence from immemorial. In Mahabharata; skilled and expert
gambler Sakuni maneuvered on Pasha to widen the gap between Kaurava and
Pandhava forever. Maternal uncle Sakuni had settled the scores of old enmity
through the gambling. Readers with rational views can guess the aftermath of
this epoch making gambling, Draupadi’s family life.

In Mahabharata, during agyatbas, Bhim met Rakhashas Kanya

Hidimba and married her in gandharva rituals. This hush-hush affair Bhima
kept undisclosed to his wife Panchaili. When Bhima realized his lapse he left
newly married Hidimba in forest. Hidimba took oath for revenge against
Bhima through “Ghatatkash” the offspring of this uncalled union. This is a
finest example of uncalled affairs which created domestic violence later in
family of Pancha Pandava.

Socio-economic condition is also one of the prime factors for domestic

violence. What connotes Dhaksyangna? Raja Dhakh was urban and rich with
worldly possession, whereas, Devadidev Shiva represents the rustic and poor

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strata of society, due to this wide gap of socio-economic status, Raja Dhakhs
refused Shiva for the nuptial tie up with his daughter Uma. The consequence
was Tandava Nirtya, resulting bloodshed of Uma that created sixty-four
pithsthan, the most sacred places of Hindu pilgrimage.

Above few references from our classical text, indicate that the inactive
sees of all kinds of violence are in our blood and it has been proved time and
again. Only enlightening the intellect through consciousness and self restrain
by constant practice can alleviate this baneful propensity of violence in the
masses to a certain extent. Innocent village people do emulate these two epics
as the ideal way of life in, positive or negatively way, as per individual
interpretation. I have merely taken some shallow references from these
classics. It is not an in-depth research, but in literary terms to put some points
before your rational view. The classical incidents referred here, apparently
envisage us with common factors of domestic violence, which are perennial
and universal.

1.4. Modern Period :-

With the advent of the British rule, it was their basic concept to rule the
country, that the Britishers did not disturb the personal law of the Hindus and
Muslims but they started penetrating into the religious and personal law of
the Hindus the judicial decisions and started creating a class Indian in body
but British in taste and thought. It was only in British regime that the attitude,
behaviour and living patterns of Indian society changed due to education and
the western impact on socio-cultural life. The women organizations took up
issues like women’s education, abolition of social evils, Hindu Law reforms,
moral & material progress of women, equality of rights & opportunities and
women’s suffrage. Thus Indian women’s movement worked for two goals;
upliftment of women and equal rights for men and women.

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With the dawn of freedom and a Sovereign Socialist Secular

Democratic Republic Constitution, Indians started marching ahead and the
Indian women too. Indian women was earlier looked upon from one angle
i.e., “Within the four walls”. Indian women constitute almost half population
of India and as such they cannot be ignored keeping in mind the famous
words of Vivekananda, “a bird with one wing cannot fly”, and the sanctity of
constitutional law enshrined in Part-III, the legislature brought forth
numerous enactments to provide sense of equality and protection from
cruelty. To cite few enactments like

(i) Hindu Succession Act, 1956,

(ii) Hindu Adoption and Maintenance Act, 1956,

(iii) The Child Marriage Restraint Act, 1978

(iv) The Factories Act, 1948

(v) Mines Act, 1952

(vi) Plantation Labour Act, 1951

(vii) The Employees State Insurance Act, 1948

(viii) The Maternity Benefits Act, 1961

(ix) The Factories Amendment Act, 1976,

(x) The Equal Remuneration Act, 1976,

(xi) The Medical Termination of Pregnancy Act, 1971,

(xii) The Contract Labour (Regulation and Abolition) Act, 1978,

(xiii) The Dowry Prohibition Act, 1961

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(xiv) The Immoral Traffic Prevention Act, 1986

(xv) Amendments to the Criminal Laws,

(xvi) Family Courts Act, 1984,

(xvii) The Commission of Sati (Prevention) Act, 1987 indicate that a lot
was done to uplift the status of women and add to various
notifications were issued by the government to redress the
grievances of the women employees.

The other aspect of women’s uplift lies in that liberated spirit exhibited
by the convention on the elimination of all forms of discrimination against
women (CEDDW – 1979) in 1993, the Mexican Plan of Action (1975), The
Nairobi Forward Looking Strategies (1985), the Beijing declaration as well as
platform for action (1995). The Vienna Accord of 1994, which indicated two
important aspects to which India must look. On one side there was world
movement for the upliftment of women and on the other side various
measures legislated and brought in the IPC, failed to produce the desired
results and perhaps as a last resort, the legislature enacted the protection of
women from domestic violence Act, 2005 to protect the women from
domestic terrorism.

Indian women have always been considered to be downtrodden section

of the society Men have always treated women like dust under one’s feet
(more so in the Indian context). Deplorable has been the pathetic condition of
women in Ancient India. Although, efforts were made, even in Shastras &
Puranas, to electrify and exalt the image of women by associating it with
Goddess Durga. Yet, it is ironical that India because the patriarchal (The
society in which a male person is considered to be the head of the family) or
male dominated.

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After gaining independence, the Constitution framers keeping all

aspects in mind, for gaining equal status to women our constitution urges for
equality & dignity of all human being. Article 15 states that State shall not
discriminate against any citizen on grounds of religion, race, caste, sex, place
of birth or any of them or subject them to any? Disability, liability or
restriction? On that account. But even Constitutional norms are violated
without the slightest bit of hesitation. The list of crimes that are committed
against women seem enormous, varying from simple harassment, physical or
mental torture, to even denying the very right to exist Article 15(3), gives
power to the legislature to make special laws for women. Exercising this
power, the legislature enacted this Act which deals against domestic violence.
The law is yet to be implemented and therefore it seems to be a good time to
scrutinize this Act. The new Act contains five chapters and 37 sections.

1.5. Legislative History of the Act of 2005 :-

Before the inception of this Act, there was no specific Act for
protecting women from undue discrimination and unjustified violence.
Though the Indian Penal Code had provisions, namely Section 304B and
498A, but they were not adequate and satisfactory in checking the atrocities
committed against women. Thus, a desperate need was felt for an Act which
could specifically cater to this cause and help women attain a dignified status,
and henceforth the bill was passed by the legislature in 2005 and it was
brought in application in 2006 and was touted by union minister Renuka
Chaudhary as the most progressive gift for women.

1.6. Inception of the Act :-

Domestic violence is undoubtedly a human rights issue and serious

deterrent to development of a nation. This particular Act has been enacted in
keeping with the various guidelines given by several International

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Conventions and Declarations. The Vienna Accord for Action 1995 have
acknowledged this. The United Nations Committee on Convention on
Elimination of All Forms of Discrimination Against Women (CEDAW) in its
General Recommendation No. XII (1989) has also recommended that state
parties should act to protect women against violence of any kind especially
that occurring within the family.

The phenomenon of domestic violence is widely prevalent but has

remained largely invisible in the public domain. This enactment purported to
be an additional violence curbing mechanism to the already existing Sections
304B and 498A in IPC, which lay down the punishment for dowry death and
cruelty and harassment against a woman by her husband and his relatives.

For long the fairer sex has suffered at the hands of men, the
exploitation ranges from physical to intangible abuse like mental and
psychological torture. Women have been treated as child bearing machines,
and if I may, then preferably male child bearing machines, push over, to
nothing but animals at the hands of men. Domestic violence is one of the
gravest and the most pervasive human rights violation. For too long now,
women have accepted as their destiny or have just acquiescence their right to
raise their voice, perhaps, because of the justice system or the lack of it or
because they are vulnerable, scared of being ostracized by their own because
domestic violence still remains a taboo for most women who suffer from it or
for other reasons best known to them. But not any more Women gear up take
control because here comes the domestic violence Act, 2005.

1.7. Legislations on Violation Against Women : The Indian

Experience:-

To understand the Protection of Women from Domestic Violence Act

2005, we need to understand the history of laws relating to violence against
women in the country over the last few decades.

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The enactment of the Dowry Prohibition Act of 1961 was a pre-

partition legacy, in as much as dowry had been identified as a social evil in
undivided India and certain provinces such as Sindh had their own dowry
prohibition laws. The enactment of a Central legislation in 1961, soon after
independence, came as recognition of the fact that the “giving and taking of
dowry” was a national phenomenon, and needed to be prohibited by law.

In fact, demand for dowry reflects the degraded status of women in

society, and is only the symptom of a much larger malaise, namely, the
negation of women’s human rights including their right to equality. It is
however unfortunate that treatment of women as commodities, rather than as
human beings who are the bearers of human rights including the right to
equality. Sadly, the enactment of the law has neither stopped the demanding
of dowry nor the giving of dowry. 4 To this day, the demanding and giving of
dowry remains one of the most visible symbols of the devaluation of women.
Indeed one hears as a justification for the preference of the male child, the
argument that giving birth to a girl child means having to provide a dowry.
So alarming is the male female sex ratio in the country that one is inclined to
believe that sex-selective abortion has become the chosen remedy for
unlawful demands for dowry. The latest figures from the Census of India
(2001 : the last available Report) show the Child Sex Ratio at 927 females per
1000 males in India. This is a sad reflection on the status of women in the
country generally and an acknowledgement that women are less equal than
men.

It was in the early 1980’s that not only did dowry continue to raise its
ugly head, but now, its association with violence and death in the matrimonial

4
. According to statistics from National Crime Records Bureau’s report “Crime in India”, there has been an
increase of 33.8% of reported cases in 2004 under the Dowry Prohibition Act 1961 from the previous year.
While in the year 2000, the number was 2876, in 2004, the reported cases increased to 3592. In addition,
refer to the figures on reported cases of “dowry death” under Section 304B IPC in the text box with the
heading ‘Violence against Women in India’ hereinabove.

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home became evident. Mothers marched on the streets demonstrating against

the burning to death of young brides in the matrimonial homes. It was a crime
without a name. the death of a women, within the home, was closed as
“accidental” or as “suicide”. Hardly ever, was it prosecuted as murder plain
and simple. It was the mothers of these young women who brought to the
centerstage a phenomenon, which later came to be described as “dowry
death”. However, the realization that violence exists in the matrimonial home
came to stay and the Indian Penal Code was amended in 1983 to introduce
cruelty to a married woman as an offence under Section 498A IPC.

The age of innocence was over. No longer could we argue that the
Indian family was scared space, different from families in the western world
as they nurtured their members and preserved Indian culture. Finally, there
was legislative recognition of the hidden malaise confronted by the Indian
family-cruelty towards women. The terms of Section 498A IPC are broad and
it is intended to reach all forms of violence against women, and not just
violence associated with the “giving and taking of dowry”. However, in its
actual implementation and in the understanding of the law enforcement
agencies, it became synonymous with the averment of demand for dowry to
activate the law, an unfortunate development that has inhibited the law from
being implemented appropriately.

Section 498A IPC is remedial in its scope; a women must still be alive
when she lodges a complaint under the Section. But soon after the law was
enacted, we needed to introduce Section 304B IPC in the year 1986, which
made the death of a women in the matrimonial home within seven years of
marriage an offence, if it could be shown that she was subjected to cruelty
immediately before her death. Therefore, we have a complete code to deal
with death of women in the matrimonial home. The journey from Section
498A to Section 304B is the journey from life to death.

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Section 498A IPC was a desperate cry for help by a women who is
struggling to stay alive. The neglect of that cry can lead to her death, leaving
it to the State to prosecute for murder, a poor substitute to staying alive. Yet,
national crime statistics do indicate that we have not been able to prevent
women from dying in the matrimonial home. 5 Dead women tell no lies, and
the dead body is proof enough of the cruelty. Hence, prosecutions will be
launched proving the antecedent cruelty. Only recently, Justice FI Rebello of
the High Court of Bombay in a judgment expressing concern stated “We have
to take judicial notice that crime against women instead of decreasing is on
the increase. We find that case of bride burning are on the increase”.6

Unfortunately, in this country, we do not pay sufficient attention to the

importance of data collection. Court records are difficult to access (except
reported judgments of the High Courts and Supreme Court, other judgment of
Sessions and Magistrates’ courts are inaccessible, barring the recent
initiatives in a few states). There have been no comprehensive studies on how
Section 498A has worked, and whether it has achieved its intended object of
preventing violence against women. Any criminal law has for its purpose, the
object of deterrence and its effectiveness must be judged by the benefit to the
community. Has Section 498A reduced violence against women? Studies
conducted in the United States where policies of mandatory arrest and no
drop prosecution have been put in place, have led to a decline in reported
cases of violence against women. These policies, coupled with provision for
services such as shelter homes and other exit routes have addressed the issue
of violence against women in an effective manner.

It was in this context that the need to a civil law on domestic violence
was felt.
5
. Ibid
6
. Smt. Ratnabai Jaysing Patil V. State of Maharashtra Crim. Application No. 470 of 2008 (Decided on 5
May 2008).

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There was no law in place enabling judges to give protection orders

and injunctions restraining violence against women or to give any monetary
relief in cases where women go to court complaining against violence. All
remedial measures were part and parcel of family law, or more particularly
the law of divorce. Violence was not seen as a wrong, in and of itself, but as a
fall-out of marriage and family life. There was no unambiguous policy of
elimination of violence against women as a national goal, to be achieved
through law.

1.8. Campaign for the Law on Domestic Violence :-

In recognition of the need for a substantive law that provided a

comprehensive definition of domestic violence as well as ensured easier
access to the justice system, the first draft of the Domestic Violence
(Prevention and Protection) Bill was formulated in 1998 by the Lawyers
Collective Women’s Rights Initiative (“LCWRI”). The draft was finalized
following wide ranging consultations with lawyers, civil society groups and
networks across the country, and submitted to the National Commission for
Women (“NCW”). A collegium for finalization of the draft bill was also
organized where members of the judiciary, eminent legal experts of the
country and women’s advocates participated. In reality, however, the
campaign for the law had begun in the year 1992 when the LCWRI had
proposed three bills 7 forming a comprehensive code to the NCW.

Following the consensus-building process in which partnerships were

built with organizations and networks at the national, state and local levels, a
ground level advocacy campaign was initiated in association with the partners
in various parts of the country. The advocacy efforts proved to be very
7
. The proposal include a domestic violence law, a law on community of matrimonial property, and finally,
sex-equality legislation. While the other two bills are being worked upon, the immediacy of addressing the
issue of domestic violence through a civil law was realized, leading to the beginning of the campaign for the
domestic violence law.

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effective with the bill being passed unanimously in both Houses of the
Parliament in 2005. The Rules under the Act were passed and notified
subsequently in the year 2006.

The distinction between a domestic violence law and laws dealing with
marriage and divorce, however, must be clearly understood. Very often, we
tend to think that marriage/divorce laws perform the function of addressing
violence. Although all our divorce laws provide cruelty as a ground on which
a wife can seek divorce, the decision to end a marriage on the ground of
domestic violence rests solely with the woman. Each woman decides for
herself the remedy that is in her best interest, given her particular situation.
Irrespective of whether she exercises this option, it is undeniable that
violence shatters a women’s life, her economic situation, her relationships,
her sense of security, self-esteem, and everything she holds dear. She needs
the time and space to reach her own decision, without her vulnerability being
used as a tool for blackmail by the perpetrator.

The purpose of a domestic violence law is therefore, to prevent a

situation where a women is rendered destitute, and to restore her to a position
of equality so that she has the space to take an informed destitute, and to
restore her to a position o equality so that she has the space to take an
informed decision about her life. The absolute precondition for that is to stop
violence immediately. If the law does not serve this function, it serves no
function at all.



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CHAPTER-II
Domestic violence : concept, features,
magnitude, triggers and scope

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Chapter -II

Domestic violence : concept, features,

magnitude, triggers and scope

“Do not keep me on a pedestal to be worshipped, nor under your feet

to be trampled, but keep me at your side to share, and to dare in facing this
world.”

-Tagore’s Chitra

The phenomenon of domestic violence is as old as humans. Violence

in homes is going on since time immemorial all over the world. Society
deliberately formulated beliefs and traditions which facilitated this form of
violence especially towards women. That is social norms were deliberately
floated to ensure the subordination of women. Domestic violence manifests
in many ways; spousal, man on women and women on man; adults’ children
and children on adults; women on women and man on man. Sometimes,
domestic violence also manifests as family wars or clan wars. Overtly,
subordination of women has always helped to shape the course of this
violence.

Looking at the domestic front, starting from Vedic age to twenty first
century, women in India perhaps have never experienced equal rights and
freedom compared to their male counterparts. The concept of ‘Ardhangini’
[half of the body] seems to be restricted only in literatures and have never
implemented in practical life. In addition to this, extracts from

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Ramacharitmanas of Tulsidas like ‘Dhol, Gauwnaar, Shudra, Pashu aur Nari;

Sakal Tadan ke Adhikari’ [drums, uncivilized illiterates, lower castes,
animals and women are all fit to be beaten] besides other indicators like
Parda system [hiding the face in veil], Sati system [self immersion of the lady
in husband’s pyre] that are subject to women only; is a reflection of the
history of women’s subordinate status. In short, it is always the women who
have to be in the tight rope, subject to inequality and looked down as an
inferior sex. Staring from childhood to the end of her life she has to be under
the control of father or husband or the son. The subordinate status of women
combined with socio cultural norms that are inclined towards patriarchy and
masculinity can be considered as an important factor determining the
domestic violence.

The percentage of domestic violence is always more in countries where

the laws and social norms diminish the status of women. Women is usually
the chief victim of domestic violence. Domestic violence can be engendered
by stress that is created from living in a family situation. The perpetrator and
the victim can be anyone. Family pressures can create a pressure cooker
situation for some individuals causing them to burst. Economic and social
circumstances can also induce tension which can result in violence. Women
are more vulnerable to domestic violence world over, because they are
economically dependent on their male counterparts, have children to care for,
and are physically weaker. Dependents can be coerced and violated with
more ease, because it is more difficult for them to make an exit, or escape a
violent partner or family members. The human need for control and coercion
to deal with individual need for security, in order to handle personal
complexes, has mainly lead to violence within the four walls of home since
the beginning of human society. This is due to socio-economic
circumstances, and the personality of the perpetrators and the victims.

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Psychology plays a big part in the domestic drama of violence. Gender issues
also play a big part in domestic violence-woman being the more vulnerable
sex.

Domestic violence was recognized as a specific problem in United

States in 1983. Domestic abuse became a matter of public awareness during
the women’s movement of the 1970s.

This served to change the course of American history and had a visible
impact on the whole world. In India, domestic violence came to be formally
recognized as a specific criminal offence, when Section 498 A was
introduced in the Indian Penal Code. This Section is formulated to deal with
cruelty by a man or his family, towards a married woman.

The term domestic violence is neutral in implication but almost always

includes gender based abuse perpetrated by men on women or vice versa. The
family as a sanctuary of peace, harmony and safety can often be a myth. In
fact in can be the very place which breeds and allows injustice and violence
due to its closed door policy. The horrendous nature of domestic violence has
been experienced and documented across nations and cultures throughout the
world in all classes and communities. Domestic violence is a fact or human
life a universal phenomenon.

Domestic violence is violence that takes place between people on

private territory. The term domestic violence depicts violence between
individuals who are usually bonded through law, blood or personal intimacy.
The rate of Domestic violence is particularly high in places where women are
treated as the inferior sex traditionally. Economically dependent women are
also found to be more vulnerable to violence and abuse. India is now
recognized as one of the countries in the world which recognizes domestic
violence as a violation of human rights. Although the new law is not in itself

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enough, to fight the enormity of the problem, but a sure measure to facilitate
those who want to uphold the dignity of human existence and life.

In the patriarchal system of society the abuser is normally a man. There

is also a syndrome called situational couple violence, where the abuse is
perpetrated by circumstances. Another form of violence can be resistance.
Resistance is primarily a strategy of self defence, more like a payback
adapted by an entrapped victim who sees no other way of escaping from a
violent relationship. Situational couple violence occurs when there is an
actual conflict arising out of an argument and escalating into violence. It is
not deliberate or planned, and also less serious than the intimate terrorism
phenomenon. The intensity of the problem in the former case differs with
situations. However it can have very serious repercussions in some instances.
The last phenomenon, which is called mutual violent control, is when both
the partners turn violent and compete for control in a relationship.

Domestic violence is physical, psychological, and sexual violence

between partners. This violence takes place in private, is repetitive, and tends
to escalate. The concept covers all violence that takes place behind closed
doors, whether directed at partners, spouse, sensors, children or the disable.
Cases of domestic violence involve an element of power imbalance between
perpetrator and victim.

Domestic violence is a pattern of behaviour characterized by misuse of

power and control by one person over another who are or have been in an
intimate relationship. It can occur in mixed gender relationships and has
profound consequences for the lives of children, individual families and
communities. It may be physical, sexual, emotional, and/or psychological.
The later may include intimidation, harassment, threats, financial abuse, and
damage to property.

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Domestic violence can also be viewed as criminal behaviour done for

power and control. Psychologists assert that people deal with their own
insecurities and inadequacies by abusing and controlling the lives of others
within the safe precincts of domestic walls. The domestic situations usually
makes the abused very vulnerable and fragile. Violence on the domestic front
has been a part of human society since times immemorial.

The Protection of women from domestic Violence Act, 2005 is path

breaking in many ways. The act was notified on October, 25, of the year
2006. It’s all encompassing definition of domestic violence as ‘all forms of
physical, sexual, verbal, emotional or economic abuse’ is very significant.
That civic solutions offered to abuse women via this act are unique.

Domestic violence (also known as interpersonal partner abuse) is a

pattern of assaultive and coercive behaviours, including physical, sexual, and
psychological attacks, as well as economic coercion, that adults or
adolescents use against their intimate partners.

Domestic violence is not an isolated, individual event, but rather a

pattern of multiple tactics and repeated events. Unlike stranger-to-stranger
violence, in domestic violence the assaults are repeated against the same
victim by the same perpetrator. These assaults occur in different forms :
physical, sexual, and psychological. The pattern may include economic
control as well. While physical assault may occur infrequently, other parts of
the pattern may occur daily. One battering episode builds on past episodes
and sets the stage for future episodes. All tactics of the pattern interact with
each other and have profound effects on the victims.

Domestic violence includes a wide range of coercive behaviour with a

wide range of consequences, some causing physical injuries and some not.
However, all are psychologically damaging. Some acts crimes in most states

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(such as physical assault, sexual assault, menacing, arson, kidnapping,

harassment), while other battering episodes are not illegal (such as name-
calling, denying access to the family automobile, control of financial
resources). While the intervening professional sometimes must attempt to
make sense of one specific incident that resulted in an injury, the victim is
dealing with the one episode in the context of a pattern of both obvious and
subtle episodes of coercion.

In brief, Domestic violence is a horrendous phenomenon, which is

prevalent all over the world and drains its resources in terms of human and
material wealth. The biggest problem is convincing people, especially
women, that they do not deserve abuse. Domestic violence happens to people
of all ages, races, ethnicity, and religions. It occurs in both opposite-sex and
same-sex relationships. Economic or professional status does not indicate
domestic violence-abusers and victims can be labourers or college professors,
judges or janitors, doctors or orderlies, schoolteachers, truck drivers,
homemakers or store clerks. Domestic violence occurs in the poorest ghettos,
the fanciest mansions and white-picket-fence neighbourhood.

2.1. A Definition of Domestic Violence :-

Violence denotes an attack or an assault resulting in destructive

consequences. Violence involves atleast people-an actor or a perpetrator of
violence, and, a victim or a person on whom violence is inflicted. Violence is
a complex phenomenon, which govern by prevalent social norms. Violence
against women is a universal phenomenon that cut across boundaries of caste,
class, education, income, religion, culture or age. It takes place very where-
within families, at work place and in communities. Violence against women
has devastating physical, emotional, financial and social effects on women,
children, families and communities around the world. The survivals of

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violence often experience life long emotional distress, mental health

problems and poor reproductive health. Their self-esteem gets eroded and
violates the human rights.

Domestic violence is more that physical abuse, hitting or an occasional

argument. It is a pattern of controlling and aggressive behaviours directed
towards a woman in an intimate relationship by a man. Ahuja described wife
battering as ‘willfully striking of wife by husband with or without injury’.
Intimate partner violence includes a range of sexually, psychologically and
psychologically and physically coercive acts used against women by an
intimate partner. Violence against women can be conceptualized as an act of
omission or commission that causes harm to women or keep her in a
subordinate position. The United Nations Declaration on Elimination of
Violence against Women, 1993 has maintained that a manifestation of
historically unequal power relationships between men and women is the
violence against women. World Health Organization has defined violence as
the international use of physical force or power, threatened or actual, against
oneself, another person or against a group or community that either results in
or has a high likelihood of resulting in injury, death, psychological harm,
mal-development or deprivation. The Protection of Women from Domestic
Violence Act, 2005 defined domestic violence as any act, omission or
commission or conduct that 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.

Domestic violence is an extremely complex and vicious form of abuse,

committed most often within the four walls of the family house and/or within
a particular deep-rooted power dynamic and socio-economic structure, which
do not allow even the acknowledgement or recognition of this abuse.

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Meaning and detection of domestic violence itself is the most demanding

task.

To be honest, there is no definition of domestic violence in Indian

Law. This does not mean that acts of domestic violence are not punishable in
India. There is no exact prototype of domestic violence it differs with
households, individuals and situations. The impact of domestic violence
depends upon its severity. Domestic violence could result in anything from
death to minor scars. There could be a situation where this violence results in
neither but causes devastating psychological impairment.

“According to Black’s Law Dictionary, “domestic violence means

violence between members of a household, usually spouses, an assault or
other violent act committed by one member of a household against another”.1

The meaning of domestic violence and the range of acts which amount
to domestic violence will become clear from a look at the general laws,
criminal and civil, which address acts which could constitute domestic
violence.

2.1.1. Definition Under Criminal Law :-

The Criminal law in India is contained primarily in the Indian Penal Code,
1860 (IPC). The IPC is supplemented by special laws, which define and
punish specific offences.

The Indian Penal code :-

Under the IPC, ‘culpable homicide’ is defined as causing death by

doing an act :

• With the intention of causing death.

1
. Black’s Law Dictionary, VIIth Ed., 1999, p. 1564.

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• With the intention of causing such bodily injury as is likely to cause

death.

• With the knowledge that it is likely to cause death.2

Culpable homicide amounts to murder unless it is committed without

premeditation in a sudden fight or in the heat of passion upon a sudden
quarrel and without the offenders having taken undue advantage or acted in a
cruel or unusual manner.

Where the death of a woman is caused by any burns or bodily injury or

occurs otherwise than under normal circumstances within seven years of her
marriage, and if it is established that the wife had been subjected to cruelty by
her husband or his relatives, the death is termed a ‘dowry death’. 3 The
husband or relative who subjects the wife to cruelty is presumed to have
caused the dowry death and will have to prove that the death was not a result
of the cruelty.

Female infanticide, or forcing the wife to terminate her pregnancy are

also forms of domestic violence recognized as offences under the IPC. 4

Often victims of domestic violence, especially brides harassed for

dowry are driven to commit suicide. Abetment of suicide of a delirious
person is an offence punishable with death or life imprisonment.5 Abetment
of suicide is also an offence punishable with 10 years imprisonment.6

Causing bodily hurt is a common form of domestic violence. The IPC

defines hurt as causing “bodily pain, disease, pain or infirmity to any

2
. Section 299, IPC
3
. Section 304B, IPC
4
. Section 313-316, IPC
5
. Section 305, IPC
6
. Section 306, IPC

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person”.7 A hurt may be ‘grievous’ if it results in serious injury such as a

fracture, loss of hearing or sight, damage to any member or joint, etc.8

The IPC makes it an offence to voluntarily cause hurt 9 grievous hurt.10

Also criminalized is the voluntary causing of grievous hurt by dangerous
weapons 11 and voluntarily causing hurt to export property. 12

Another common form of domestic violence is in the form of the

wrongful restraint 13 or confinement 14 of the spouse within her matrimonial
home. Use of force15 and assault 16 on the spouse, other common forms of
domestic violence, are also punishable under the IPC.

Marital rape is yet another common form of domestic violence. This is

a grey area of law and evidence. While many progressive nations have
legislated on marital rape, our law has so far only conferred a limited
recognition. Non-consensual sexual intercourse by a man with his own wife
may be an offence if she is living separately under a decree of separation or
any custom. 17 In many a violent marriage, the spouse subjects the wife to acts
of sexual humiliation. Interestingly the IPC even addresses such forms of
violence the provision for ‘unnatural offences’. 18 However, this provision has
rarely been used in the matrimonial context.

A common companion of domestic violence is the misappropriation of

the spouse’s property so that she is economically crippled into subjugation.

7
. Section 319, IPC
8
. Section 320, IPC
9
. Section 321, IPC
10
. Section 322, read with Section 323, IPC
11
. Section 326, IPC
12
. Section 327, IPC
13
. Section 349, IPC
14
Section 340, IPC
15
. Section 349, IPC
16
. Section 351, IPC
17
. Section 376A, IPC
18
. Section 377, IPC

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The IPC addresses situation too. If the husband or his relative dishonestly
misappropriates or converts to his own use any property, which the wife has
entrusted him with, he is liable for the offence of criminal breach of trust. 19

In 1983, matrimonial cruelty was introduced as an offence in the IPC.20

Cruelty was defined as “any willful conduct which is of such a nature as is
likely to drive the women to commit suicide or to cause grave injury or
danger to life or limb or health (whether mental or physical) of the women”.
It includes harassment of the woman in connection with demands for
property and the like.

2.1.2. Definition Under Special Laws :-

The Dowry Prohibition Act, 1961 :-

Domestic violence is society specific. Social mores impact the type of

violence perpetrated on the spouse. The ‘dowry’ system is a distinctive
feature of the sub-continent. At the time of marriage, the bride’s family is
expected to give gifts, in cash or in kind, to the groom. 21 Often the bride’s
side commits to deferred presentations. In such situations, the bride is often
subjected to domestic violence if the gifts are not made as promised. In
recognition of the fact that this dowry is the genesis of domestic violence in
the matrimonial home, the Dowry Prohibition Act criminalizes the giving and
taking of dowry. 22

The Commission of Sati Prevention Act, 1987 :-

There is another form of domestic violence which was rampant in our

past but ebbed in the last century, i.e. sati. Sati means the burning or burying
alive of widow along with the body of her deceased husband or any other
19
. Section 405 read with Section 406, IPC
20
. Section 498A, IPC
21
. ‘Dowry’ as contemplated by the Dowry Prohibition Act is a demand for property or valuable security
having an inextricable nexus with the marriage. In other worlds, it is a consideration from the bride’s side to
the groom’s side for the agreement to wed.
22
. Section 3, Dowry Prohibition Act, 1961

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relative, or with any Article, object or thing associated with the husband or
relative.23 The Commission of Sati Prevention Act, enacted in 1987 after a
shocking sati death is Rajasthan, criminalises observance, support,
justifications or propagation of sati.

The Pre-conception and Pre-natal Diagnostic Techniques (Prohibition of Sex

Selection) Act, 1994 :-

This Act recognizes that domestic violence is also perpetrated in the

form of forced termination of female foetuses, the Pre-conception and Pre-
natal Diagnostic Techniques Act regulates the use of pre-natal diagnosis.
Such tests are permitted only for the purpose of detecting certain specified
abnormalities and disorders.24 Present Act prohibits sex selection not only
after conception but even before conception on any tissue, embryo, concepts,
fluid or gametes destined from either man or women or from both of them.

2.1.3. Definition Under Civil Law :-

Civil law too follows criminal law, inasmuch as it addresses facets of

domestic violence without specifically defining domestic violence. Even
references in the Statutes to aspects of domestic violence are generic and it is
only through judicial decisions that such provisions have been given life and
meaning.

The Dissolution of Muslim Marriages Act, 1939 (DMMA) :-

The DMMA stipulates cruelty as a ground for divorce. Cruelty is

defined to include. 25

(i) Habitually assaulting the wife or making her life miserable by cruelty
of conduct even if such conduct does not amount to physical ill-
treatment.
23
. Section 2(1)(c), The Commission of Sati Prevention Act, 1987
24
. Section 4, The Pre-conception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Act,
1994.
25
. Section 2(viii), DMMA

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(ii) Associating with women of ill-repute or leading an infamous life.

(iii) Attempting to force the wife to lead an immoral life.

(iv) Disposing of the wife’s property or preventing her from exercising her
legal rights over it.

(v) Obstructing the wife in the observance of her religion.

The Hindu Marriage Act, 1955 (HMA) 26 :-

Under the HMA, cruelty is a ground for divorce as well as judicial

separation. 27 However, the term ‘cruelty’ is not defined in HMA. It is through
decided cases that the term has been understood to mean acts of physical as
well as mental cruelty.

Other Matrimonial Laws :-

The Special Marriage Act, 1954 (SMA)28, the Indian Divorce Act
(IDA), 29 and the Parsi Marriage and Divorce Act (PMDA),30 all allow
‘cruelty’ as a ground for divorce. However, none of the acts elaborate or
detail the nature of cruelty. Domestic violence would certainly qualify as
cruelty under these statutes.

2.1.4. Definition Under Proposed Law :-

In an attempt to draft a law to address domestic violence, the Women’s

Rights Initiative of the Lawyers Collective evolved a legal definition which
read as follows :

Domestic violence means any act, omission or conduct which is of

such a nature as to harm or injure or has the potential of harming or injuring

26
. Section 13(1)(ia), HMA
27
. Section 10, HMA
28
. Section 27(1)(d), SMA
29
. Section 10, IDA
30
. Section 32(dd), PMDA

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the health, safety or well-being of the person aggrieved 31 or any child in the
domestic relationships. It includes :

(i) Physical abuse or a threat of physical abuse.

(ii) Sexual abuse or a threat of sexual abuse.

(iii) Verbal and mental abuse.

(iv) Economic abuse.32

Internationally, violence against women has been considered one of the

eleven critical areas of concern by governments (Country report for the 4th
World Conference on Women, Beijing, 1995). This is a marked change from
the 1975 Status of Women report where violence was not even mentioned.
Either because of international pressure or because of some innate guilt
consciousness, the government was signatory to the CEDAW in 1993.

As a signatory to CEDAW and Beijing Platform for Action, India has

accepted ‘violence against women’ to mean :

‘……..any act of gender-based violence that results in, or is likely to

result in, physical, sexual or psychological harm or suffering to women,
including threats of such acts, coercion or arbitrary deprivation of liberty,
whether occurring in public or private life’.

The GOI Bill, 2002 instead of adopting this definition chose to define
domestic violence [under Section (4)(1)] as : (a) habitual assault or [one that]
makes the life of the aggrieved persons miserable by cruelty of conduct; (b)
forces the aggrieved person to lead an immoral life; or (c) otherwise injures
or harms the aggrieved person.

31
. The “person aggrieved” is restricted to a women or child.
32
. Jaising, Indira (ed.) Law of Domestic Violence, 2000, pp. 1-6

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Clause 4(2) further provides that nothing contained in clause (c) of

sub-Section (1) shall amount to domestic violence if the pursuit of course of
conduct by the respondent was reasonable for his own protection of or for the
protection of his or another’s property. 33

Critics of the Bill said why the inclusion of the word ‘habitual’? Is it
not understood that violence in a household arises out of power relationships
between two people? The fact that one person takes it upon himself/herself to
deprive the other of his/her rights as an individual is itself violation of the
other’s rights. Isn’t a single instance, then, sufficient to be termed violence or
cruelty?

Does a person have to break a women’s arm twice or beat her fifty
times before the culprit can be termed habitual? And the wording of clause
(c) of Section 4(1) left everything to the imagination of the judiciary as to
what constitutes injury or violence. By clubbing all violence to fit under
Section 4(1)(c) and leaving it to the court’s mercy, the entire Bill was more a
sop than the tremendous act it should have been. The law must provide a
solid framework of guidelines to help the courts make a decision. The law
must state clearly what acts constitute domestic violence. It cannot wash its
hands off and leave the decision to the court.34

The Government Bill, 2002 while defining domestic violence totally

failed to capture women’s experience of abuse and daily violence at home,
under pinning of patriarchal values is vivid in the proposed Government Bill
on domestic violence. 35

33
. Section 4, The Protection from Domestic Violence Bill, 2002
34
. The Lawyers Collective, April 2002, p. 7
35
. NFIW Bulletin, Jan-April, 2002, p. 16

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2.1.5. The Protection of Women From Domestic Violence Act, 2005 :-

The recently introduced The Protection of Women from Domestic

Violence Act, 2005 defines the expression “domestic violence” to include
actual abuse or threat of abuse-physical, sexual, verbal, emotional or
economic violence. Section 3 of the Act says that 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 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 him 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.

For the purpose of Section 3 :

(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 ;

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

(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 maintenances;

(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 reasonable 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

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by virtue of the domestic relationship including access to the

shared household.

The landmark legislation seeks to deter domestic violence in all forms

against women, including harassment due to dowry and causes like inability
to bear a child or a male child.

The need for the present legislation arose as the civil law does not
address the phenomenon of domestic violence in its entirety.

Definition of domestic violence can be broad or focussed, amorphous

or targeted. The reason that the definition of violence is important is because
it shapes the response. For example, a community response, whether it be
legal reform or the provision of support services, is shaped by a particular
understanding of what constitutes domestic violence and whether it is to be
conceptualized as an intra-family conflict, or a criminal violation of rights.
The definition implied by the law is especially critical as it defines standards
and thus impacts broader social perceptions of the problem. Elements of the
definition that need to be considered them are the boundaries of the
relationship between the perpetrator and the abused, the norms of acceptable
behaviour, and the specific acts that constitute violence.

A frequent perception of domestic violence against women is that it is

limited to physical harm perpetrated on adult women within a marital
relationship. While his understanding may capture a large universe of the
experience of women, it is predicted on the assumption that women primarily
live in nuclear families. Across cultures, there are a variety of living
arrangements ranging from joint families to nuclear families to single parent
families. Moreover, women may be in an established relationship or in the
process of separation or divorce. Violence is often not restricted to the current
husband but may extend to boy-friends, former husbands, and other family

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members such as parents, siblings, and in-laws. A definition that

acknowledges these multiple possibilities would lead to interventions that are
more inclusive of the experiences of all women. 36

Definitions of domestic violence rest upon not only the nature of the
relationship between the perpetrator and the victim but also upon norms of
acceptable behaviour. There is considerable difference of opinion regarding
which behaviours or manifestations should be considered violent, as well as
the level of intensity and frequency required to label a relationship as violent.
Another contentious issue is how to evaluate the intent of the act, why the act
was initiated, and whose view should determine this. For instance, Indian
field experience indicates that significant numbers of women do not perceive
acts as violence if they perceive them to be justified. The social construct
surrounding the ideal “good women”-clearly sets the limits for acceptable
norms beyond which verbal and physical assaults translate into a notion of
violence. Thus, wife beating is not seen as an excessive reaction if the
women gives cause for jealousy or does not perform her “wifely” duties
adequately, such as having meals ready on time or adequately caring for
children. This is further complicated by a common belief that violent acts are
an expression of love and merely a desire to help the subject be a “better”
person.37

The core of a definition of domestic violence consists of all the acts

that constitute violence. Some definitions are narrow and focus on a specific
act of violence and others are broader and incorporate the full range of acts.
In India, public discourse and the media equate domestic violence with dowry
violence. This incomplete representation undermines awareness of the
widespread, daily psychological, physical, and sexual abuse women confront

36
. Leela et. al., Domestic Violence in India, A Summary Report of Three Studies, ICRW, Washington, D.C.,
September 1999, USAID, India.
37
. Ibid

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that is often unrelated to dowry. As a result, newspapers may fail to report the
less sensational stories that do not involve bride-burning and unnatural death.
Indian legislation on marital violence perpetuates this narrow definition. For
example, both Section 498A of the Indian Penal Code and the Dowry
Prohibition Act emphasize violence within the context of dowry harassment.
However, informal discussions with women by researcher and activists have
underlined the need for greater study of other factors and characteristics
associated and activists have underlined the need for greater study of other
factors and characteristics associated with abuse.38

A further critical element in the definition of violence is whether it is

framed as an exclusively interpersonal act or seen more broadly as an
expression of power that perpetuates the subordination of women. If it is the
former, the definition would only include those acts which might be seen as
crimes and thus focus only on acts which result in physical evidence. If it is
the latter, the definition of violence would include all acts of “physical,
verbal, visual or sexual abuse that are experienced by women or girls as
threats, invasion or assaults and that have the effect of hurting her or
degrading her and/or taking away her ability to control contact (intimate or
otherwise) with another individual”. 39 Such a definition more fully captures
all the different processes by which women under subordination within
intimate relations and fits more directly into a human right perspective.

In this work, the operational definition of domestic violence not only

includes physical but also mental, emotional and financial abuse of a women.

Domestic violence can also be seen as a violation of the fundamental

right to live with dignity, and of the right to equality and equal protection of
the law guaranteed under the Indian Constitution.40

38
. Ibid.
39
. Koss, M.P., Goodman, A. Browne, L. Fitzgerald, G.P. Keita, and N.F. Russon, No Safe Heaven, 1994.
40
. Jaising, Indira, Law of Domestic Vilence, 2000, pp. V, VI, IX.

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According to Arun Jaitly, Minister of Law, Justice and company

Affairs, “Domestic Violence is in the majority of cases, violence against a
woman by the members of the house where she resides. It can be the
husband, his parents, or siblings or any other resident who has the overt or
covert latitude for actions that can cause physical or mental agony to the
woman. But the most important aspect of this kind of violence is the fact that
“it happens behind the closed door” and is most often denied by the very
woman who has been the victim of violence. It is this aspect of the crime that
segregates itself from all other kinds of social violence”.

In 1996, the UN Special Rapporteur on violence against women,

Radhika Coomarswamy, submitted a report focusing on domestic violence to
the Commission on Human Rights. In that report, she defined sphere,
generally between individuals who are related through intimacy, blood or law
and is perpetrated by both private and state actors. She goes on the state;
domestic violence is often albeit, problematically, labelled ‘family violence’
so that the actual structure of the family whether defined as a nuclear, joint or
single sex becomes an important subject of investigation……At its most
complex, domestic violence exists as a powerful tool of oppression….and is
used to control women in the one space traditionally dominated by women,
the home’.

2.2. Features of Domestic Violence :-

Domestic violence is violent victimization of women, within the

boundaries of family, usually by men (or his family). 41 A woman may of any
age,42 she may be a girl child, unmarried, married or elderly woman including
a widow or such women with whom men have marriage like relationship.
Violence can be both physical and psychological. It indicates threats or
41
. Sood, Sushma, Violence Against Women, 1990, p. 268
42
. Section 10, Indian Penal Code (1860), The Word ‘women’ denotes a female human being of any age.

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aggressive behavior towards her not only to her physical being, but towards
her self-respect and self-confidence.

Domestic violence against women may be psychological, physical or

sexual. Psychological violence is carried out with psychological weapons
(threats, insults, humiliating treatment, denial of human existence) rather
physical attack. Physical violence ‘includes all types of aggressive physical
behavior towards the woman’s body (victim). Sexual violence could include
both passive (denial) or active violence. It will also include cases of
perversity.

Victimizer of domestic violence may be husband or his family

members. Domestic violence could occasionally be seen in other relations
also (i.e. by parents, brothers or others in parents family).

2.2.1. Domestic Violence in Ancient Indian Society :-

Violence against women is not a myth, but a reality. It exists and exists
everywhere. The problem of violence against women is as old as the world in
cosmologies, mythologies or legends. The type, frequency, intensity and
control of violence against women may vary from time-to-time or place-to-
place but it is there everywhere. 43

Family as an institution in ancient India laid down the principles which

regulated the relationship between husband and wife and parents and
children. A men as a husband had certain responsibilities towards his wife. A
husband was to act as a provider and was called upon to cohabit with his
wife. Failure to perform such roles and responsibilities would attract

43
. Srivastava, Dr. Lakshmi, Problem of violence against women –a multi disciplinary conceptual analysis.
This paper was read in National Seminar on “Women and Violence : Various Manifestations” at A.N.S.
Institute of social Studies, Patna on 17th January, 1988.

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punishment 44 . The husband was also required to provide identity, leadership

and physical protection to his wife. Along with these duties, a husband had
certain rights and privileges. The husband had complete control over the
mind and body of his wife, without his consent, a wife had no right to
perform even a religious act. Husband had the right to use physical corrective
methods over his erring wife which was the same as those possessed by a
teacher over a pupil or a father over a son, viz., he could administer beating
with a rope or a thin piece of bamboo on the back but never on the hand 45.

Kautilya also endorsed husband’s right to beat his wife of refractive

nature. He allows the husband to beat his wife, either with a bamboo bark or
with a rope or with a palm of hand on her hips 46.

A wife on the other hand only duties. The foremost duty of a wife was
to honour and serve her husband. She must always stay with him even in
adverse situation. Yaj (1.77) enjoins upon a woman: this is the highest duty
of woman that they should obey their husband’s wards’. The Ramayana
remarks: ‘the husband is the God and master of the wife’ 47. The wife was
completely seclude from outside contacts. It was only with the permission of
her husband, that the she was permitted to move out from her husband’s
house. Failure to observe these restrictions attracted censor, social
degradation, humiliation and punishment 48. The husband wife relationship
was not based on love, affection, mutual give and take and on
equalitarianism. The relationship was marked by authoritarianism and
submissiveness. Wife was not only secluded from outside contacts but was
looked at with suspicion. Kautilya, while advising the King for his safety
contended that the King should make necessary arrangements for his personal

44
. Kautilya B.II, Ch.I, 48
45
. Vishnu Dh. S. 71.81-82, Manu VIII, 299-300, Narada 13.14
46
. Kautilya B.III, Ch. 3, S.155
47
. Ayodhya Kand, 24.26-27
48
. Kautilya B.III, Ch. IV, S.158

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safety firstly from his wife only them he would be able to maintain the
security of his kingdom49. Kautilya further demanded from the king: “when
in the interior of the harem, the king shall meet his queen only when her
personal purity was vouch saved by an old and reliable maid servant 50. such
dictates establish the fact that wife was not relied upon. When the
relationship between husband and wife is marked by suspicion, the question
of developing close, personal and intimate relationship does not arise.

The Ramayana and Mahabharata clearly depicts the prevalence of

family conflict and violence. There are numerous historical evidences of
intra-family exploitation, conflicts and violence. Lord Rama abdicated the
throne and went in exile in order to fulfill his father’s word of honour given
to his step mother. Parasurama murdered his mother at the command of his
father (Prabhu, 1963). 51 Draupadi was publicy tortured by Kauravas and
Ahalya was turned into stone by her husband.

Kautilya while advocating seclusion of women and vigilance in the

harem described a number of instances where the queens in collaboration
with the paramours and kinsmen had killed the kings. Kautilya in another
context ordains: “any woman who murders her husband a man or cuts off any
of the bodily joints of another shall be torn by build” 52 . Kautilya even allows
divorce. He contents: “mutual enmity and danger to life from the spouse may
be valid reason for divorce” (III.3.S.155). These references from Kautilya
stand as a testimony to the prevalence of conjugal fight and violence.53

Manu says that “a wife who violates the duty that she owes to her lord
shall be devoured by dogs in place frequented by many. By violating her duty

49
. Kautilya B.I, Ch. 17, S.33
50
. Kautilya B.I, Ch. 20, S.41
51
. Prabhu, P.N., Hindu Social Organization, 1963.
52
. KautilyaIV.11.S.239
53
. Most of the references of ancient literature have been derived from the four volumes of P.V. Kane,
History of Dharmasastra, 1940.

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towards her husband, a wife is disgraced in this world; and after death, she
enters the combo of a jackal and is tormented by diseases as a punishment for
her sin”.

The laws of Manu further declare that a wife may be superseded for
various reasons-

“A barren wife many be superseded in the eighth years, she whose

children (all) die in the tenth; she who bears only daughters, in the eleventh,
but she who is quarrelsome without delay”.

“But a sick wife is kind (to her husband) and virtuous in her conduct,
may be superseded (only) with her own consent and must never be
disgraced”.

“She who drinks spirituous liquor, is of bad conduct, rebellious

diseased, mischievous, or wasteful, may at any time be superseded (by
another wife)”.

Manu states that for one year, husband shall bear with a wife who hates
him, but after a year, he shall deprive her of her property. 54

In Thirteen Principles of Upnishad, there is explicit justification of

forcible sex violation of a woman by a man-

“If she should not grant him his desire, he should bribe her. If she still
does not grant him his desire, he should hit her with a stick or with his hand,
and overcome her, saying: “with power, with glory I take away your glory!.
Thus, she becomes inglorious”.

(Brihad Aranyaka, 6.4.7)55

In Puranic verses too we find the mention of violence against women –

54
. Above quotations of Manu are taken from Pinkham, M.W., WSSH, 1941.
55
. Hume, R.E., The Thirteen Principal Upnishads, 1921, 2nd Ed., p. 169.

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“A man should chastise his wife and slaves with a string of thread or a
rope made of the bladed of vera grass”.

(Agni 227. 46-50)56

“while his tender wife was exhausted with fatigue…Vishwamitra all of

a sudden struck he with chastising rod”.

(Markandeya, 7.59) 57

An actual historical case is recorded in which a certain Brahamana in

the city of Prathisthana demanded his wife. In this record also, is to be noted
the utter fidelity of the wife in spite of her harsh treatment-

“Kansika –in consequence of his pristine sins, was assailed by leprosy.

His wife served her disease husband as if he were a deity, by shampooing his
feet and limbs, bathing him, clothing him, feeding him….by serving him in
solitude, and treating him with sweet words. Although, always served by her
with humanity, that highly irascible and cruel (Brahaman) used to rebuke her
nattily. Still the humble wife considered him as a deity, and regarded that
horrible one as the best of men.”

(Markandeya, 16.14-18)

In Mahabharata, there is an instance of the violent treatment of a

woman –

“while she was piteously praying….he dragged her forcibly for her black
hair”.

(Sabha Parva, 2.6.7.32) 58

56
. Dutt, M.N., A Prose English Translation of the Agni Puranam, 1904, Vol. II, p. 815.
57
. Dutt, M.N., The Markandeya Puranam, 1896, p. 30
58
. Dutt, M.N., A Prose English Translation of Mahabharata, Vol. II, nd., p. 88.

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All the above references from ancient literature show that women were
subjected to all kinds of humiliations and indignities.

2.2.2. Domestic Violence in Present Indian Society :-

In India, we have unique situation of co-existence of all forms of

violence specially elimination of women, e.g. selective female foeticide,
female infanticide, bride burning and sati. The incidence or violence of all
forms within family has also gone up. Even today, various forms of violence
against women prevalent in our society, though many cases remain
unreported due to cultural norms, apathy or ignorance. They may manifest
themselves directly in wife battering, abduction, eve-teasing, verbal abuses or
verbal rebukes. Women on many occasions are victimized by all sorts of
discrimination, deprivations and obstructions in goal achieving and
responses. These incidents may occur in the family, offices, agricultural
fields, industries or even public places. It sounds surprising that on animal
level predatory aggression (killing and eating) occurs between the species and
not within the species, but a human being, the highest on the evolutionary
level, kills another human being of this own species. 59

Inflicting and experiencing violence in many subtle forms causing and

suffering mental pain in day-to-day life, has become wags of our world in
inter-personal relationship. The cruelty, the hate that exists in ourselves is
expressed in the exploitation of the weak by the powerful and the cunning.60

The worst part of the problem is that women today, are not feeling safe
and secured even in the family. The concept of home, sweet home is no more,

59
. Srivastava, Dr. Lakshmi, Problem of Violence Against Women –A Multidisciplinary Conceptual
Analysis, This paper was read in National Seminar on “Women and Violence: Various Manifestatins”, at
A.N.S. Institute of Social Studies, Patna on 17th January, 1988.
60
. Krishamurthi, J., Commentaries on Living, 3rd Series, Edited by D. Rajagopal, 1977, p. 166.

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so far many women, who suffer violence against themselves by the members
of the family.

Home is no safe place when it comes to aggressive behavior. Fitz and

Gerstenzang 61 observe that episodes of verbal or physical aggression are most
likely to occur in the home and the relatives (such as parents offspring and
spouses) were the most frequent targets of aggression. Steinmetz and Straus62
described the family as “cradle of violence”. Straus 63 drawing from
incidences of violence between spouses called “the marriage license as a
hitting license”.

In the last four decades, there has been an alarming increase in the
incidence of violence within and outside the family. Today, we hear more
about wife beating dowry death, sexual crimes and even reversion to
medieval like “sati”. Over the years, the nature of domestic violence has
changed, now it has assumed following characteristics:

1. Differences between the husband and wife and increasing divorce is

becoming common.

2. Men are marrying more than once, partly because they can get a new
girl and party because of the dowry.

3. Human feelings are gradually evaporating. A man resorts even to

murder the wife if he does not get the expected dowry or if he is
attracted another girl.

61
. Fitz and Gerstenzang S., Anger in Everyday Life : when, why, where and with whom? Paper presented at
the meeting of the Midwestern Psychological Association, Chicago, May, 1978.
62
. Steinmetz, S.K. and Straus, M.A., The Family as Cradle of Violence, Society, (10), 1973, pp. 50-56.
63
. Straus, M.A., The Marriage License as Litting License: social instigation of physical aggression in the
family. Paper presented at the Meeting of the American Psychological Association,l Chicago, Spetember,
1975.

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4. The growing dowry system is gradually making the baby girl

unwanted. People are restoring to foeticide and sometimes, baby girls
are even killed after birth. Besides this –

5. Women are ignored in house work and outside home. They are
suffering innumerable tortures from their in-laws and husbands. They
are frequently beaten up and denied food and shelter.

All these cases reveal the true nature of the system of marriage and
family in our society. The stereotypes rules of men and women are rigidly
defined. While the material gains brought by the men are for every one to see
the inputs provided by the women being distant are often invisible. The
amount of time, energy and labour spent by women in performing her duties
go unnoticed. Often, she has to pay in terms of sacrificing her likings,
interests and skills while the society offers man many opportunities to go out
of house and share with others his joys and sorrows, such opportunities are
very less for a woman. This mental violence, agony of losing life’s most
precious treasures and the lack of opportunities to share it with somebody
also stems body marks. But the wounds inflicted on the mind are difficult to
heal.

The woman’s right from the moment of stepping into the husband’s
home tries to forget her own identity and adjust everything according to the
needs of the new place and the people living in it. In spite of it, she is under a
constant watch and is often criticized for anything, e.g. for not bringing
enough money from her parents, properly, etc. She tends to overlook these
facts, because she has been ‘trained’ to do so. The society, the religion, her
parents and in-laws, everyone expects her to become her husband’s shadow.
The worst thing is that all these come as a rude shock to her after marriage,
because the institution of marriage in our society is highly glamourized.

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Hence for a woman, ‘the union of should’ turning into a nightmare is a truly
horrifying and shattering experience. The mental violence may be committed
in such a subtle manner that others will never come to know of it. 64

Domestic violence can take a number of forms, including:

• Physical behavior (slapping, punching, pulling hair or shoving);

• Forced or coerced sexual acts or behavior (unwanted fondling or

intercourse, or sexual jokes and insults);

• Threats (threatening to hit, harm or use a weapon);

• Psychological abuse (attack on self on self-esteem, attempts to control

or limit another person’s behavior, repeated insults or interrogation);

• Stalking (following a person, appearing at a person’s home or

workplace, making repeated phone calls or leaving written messages);
or

• Cyber stalking (repeated online action or e-mail that causes substantial

emotional distress); and

• Sacrifice of liking, interest and skills.65

Domestic Violence knows no age, socio-economic, religious, racial,

gender or educational barriers. It is a myth that only the poor or uneducated
are victims of domestic abuse. Most studies indicate that there is also a high
incidence of spousal abuse in the more affluent neighbourhoods. Although a
poor victim has the terrible problem of not having resources available, the
more affluent spouse may also be in equally desperate trap due to social

64
. Sood, Sushma, Violence Against Women, 1990, p. 227.
65
. Nolo, Com, What is Domestic Violence?

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stigmas, greater economic pressures and the increased societal position and
power that the partner may have at his or her disposal.

It is devastating for children to witness verbal or physical abuse, or to

see the aftermath: an injured parent, a destroyed home. Fear, anger, feelings
of isolation, low self-esteem and loss of trust are all common in children who
witness abuse. Learning disabilities and behavioral problems which may be
present are likely to intensify as they get older. In households where women
are abused by their partners, there is often a high incidence of child abuse by
the abusive parent. It is also becoming increasingly apparent those children in
violent homes re frequently victims of incest and, unfortunately, the legacy of
abuse doesn’t stop when the children leave home. Children develop behavior
based on what they have experienced growing up. Children from violent
homes are at high risk for becoming adult victims or abusers themselves.

Family and friends are indirect victims of abuse. The isolation and
terror that victim lives with deprives those closest to him or her from
meaningful and fulfilling relationships. Often the abuser will harm others
close to the victim in a effort to hurt or control the victim. An abuser may
harm children, other family members, friends, pets, personal belongings and
the family home.

Isolation keeps a victim trapped. Frequently, a batterer isolates the

victims from the family socially, emotionally and geographically. The victim
is frequently forbidden to see trusted friends and family, and is denied the
opportunity to go to school or work outside the home. There is little or no
access to or control over finances, in midst of this terrible isolation, the
abuser employs “brainwashing” tactics, and with no input to the contrary
from anyone outside the relationship, there will be no way for the victim to
test reality.

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2.3. Magnitude of the Problem :-

The extent, validity and reliability of the data available are critical in
determining the magnitude of the problem and in identifying priority areas
for intervention. Prevalence’s studies with samples of representative
populations are relatively new in developing countries. Such studies were
initially conducted in industrialized countries the United States, Canada, and
Europe. For example, one very influential survey conducted in Canada in
1993 under the auspices of the Canadian government was developed in
consultation with women’s organizations and ensured adequate support and
services for women participating in the survey.

When designing research on violence against women, it is important

that the research itself does not put women at risk. The World Health
Organization (WHO) has developed specific ethical and safety
recommendations that take into account, among other issues, the safety of
respondents and the research team, protecting confidentiality to ensure both
women’s safety and data quality, and specialized training of interviewers.

Most of the data available on violence against women are believed to

be not only conservative, but unreliable. Studies vary in the sample size of
women chosen and the ways in which questions have been posed. It is
difficult to compare these studies because of inconsistency in the definition of
domestic violence and in the parameters used, which can range from physical
abuse alone, to physical, sexual and psychological abuse.

Debate regarding the magnitude of the problem is also clouded by the

fact that domestic violence is a crime that is under-recorded and under-
reported. When Women file a report or seek treatment, they may have to
contend with police and health care officials who have out been trained to
respond adequately or to keep consistent records, On the other hand, shame,

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fear of reprisal, lack of information about legal rights, lack of confidence in

or fear of, the legal system, and the legal costs involved make women
reluctant to report incidents of violence.

2.3.1. Physical Abuse :-

A growing body of research studies con-firms the prevalence of

physical violence in all parts of the globe including the estimate of 20 to 50
per cent of women from country to country who have experienced domestic
violence. Statistics are grim no matter where in the world one looks, Data
from industrialized and developing countries as well as from transitional
countries (see Table 1) provide an overview of the global problem. The data
in this table focus only on physical assault. There are few comparable
statistics on psychological violence sexual abuse and murder of women at the
hands of intimate partners and other family members. As already mentioned,
physical violence is usually accompanied by psychological abuse, and in
many cases by sexual assault.

2.3.2. Sexual Abuse and Rape in Intimate Relationships :-

Sexual abuse and rape by an intimate partner is not considered a crime

in most countries, and women in many societies do not consider forced sex as
rape if they married to, or cohabiting with the perpetrator. The assumption is
that once a woman enters into a contract of marriage, the husband has the
right to unlimited sexual access to his wife. Surveys in many countries reveal
that approximately 10 to 15 per cent of women report being forced to have
sex with their intimate partner.

Some countries have begun to legislate, against marital rape. These

Include Austraial, Austria, Barbados. Canada, Cyprus, Denmark, the
Dominican Republic, Ecuador, Finland, France, Germany, Ireland, Mexico,

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Nambia, New Zealand, Norway, the Philippines, Poland, Russia, South

Africa, Spain, Sweden, Trained 7 Tobago, the United Kingdom and the
United States of America. Although provision of such always represents
considerable progress, it is, often difficult for a women to press charges
because of the evidential rules concerning the crime.

2.3.3. Psychological and Emotional Abuse :-

Because psychological violence is harder to capture in quantitative

studies, a full picture of the deeper and more insidious levels of violence
defies quantification Victim survivors report that ongoing psychological
violence emotional torture and living under terror is often more unbearable
than the physical brutality, with mental stress leading to a high incidence of
suicide and suicide attempts. A close correlation between domestic violence
and suicide has been established based on studies in the United States, Fiji,
Papua New Guinea, Peru, India, Bangladesh and Sri Lanka. Suicide is 12
times as likely to have been attempted by a woman who has been abused than
by one who has not. In the United States a many as 35 to 40 per cent of
battered women attract suicide. Sri Lanka, the number of suicides by girls end
women takes place in 28 countries in Africa (both eastern and western), in
some regions in Asia and the Middle East, and in certain immigrant
communities in North America, Europe and Australia. It can lead to death
and infertility, and long term psychological trauma combined with extreme
physical suffering.

Dowry related violence: Even though India has legally abolished the
institution of dowry, dowry-related violence is actually on the rise. More than
5,000 women are killed annually by their husbands and in laws, who burn
them in “accidental kitchen fires if their ongoing demands for dowry before

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and after marriage are not met. Averages of five women a day are burned,
and many more cases to unreported.

Deaths by kitchen fires are also on the rise, for example, in certain
regions of Pakistan. The Human Rights Commission of Pakistan reports that
at least four women are burned to death daily by husbands and family
members as a result of domestic disputes.

Acid attacks: Sulphuric acid has emerged as a cheap and easily

accessible weapon to disfigure and sometimes kill women and girls for
reasons as varied as family feuds, inability to meet dowry demands, and
rejection of marriage proposals. In Bangladesh, it is estimated that there are
over 200 acid attacks each year.

Killing in the name of honour: In several countries in the world

including, but not limited to, Bangladesh, Egypt, Jordan, Lebanon, Pakistan,
and Turkey, women are killed in order to uphold the “honour” of the family.
Any reason alleged adultery, premarital relationship (with or without sexual
relations), rape, falling in love with a person of whom the family disapproves
are all reason enough for a male member of the family to kill the woman
concerned. In 1997, more than 300 women were victims of these so called
“honour” crimes in just one province of Pakistan. In Jordan, the official toll is
rising all in reality the numbers are higher because many such murders are
recorded as suicides or accidents. Victim survivors of attempted murders are
forced to remain in protective custody, knowing that leaving custody would
result in death at the hands of the family. The penal codes in Jordan that
govern crimes of honour also sanction killing by making the penalty
disproportionately lenient, particularly if the crime is committed by boys
under 18 years of age.

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Early marriage: Early marriage, with or without the consent of the

girl, constitutes a form of violence as it undermines the health and autonomy
of millions of young girls. The legal minimum age of marriage is usually
lower for females than for males. In many countries, the minimum legal age
for marriage with parental consent is considerably lower than without it;
more than 50 countries allow marriage at 16 or’ below with parental consent.
Early marriage leads to childhood/teenage pregnancy, and can expose the girl
to HIV/AIDS and other sexually transmitted diseases. It is also associated
with adverse health effects for her children, such as low birth weight.
Furthermore, it has; an adverse effect on the education and employment
opportunities of girls.

There is no one single factor to account for violence perpetrated

against women. Increasingly, research has focused on the inter relatedness of
various factors that should improve our understanding of the problem within
different cultural contexts.

Several complex and interconnected institutionalized social and

cultural factors have kept women particularly vulnerable to the violence
directed at them, all of them manifestations of historically unequal power
relations between men and women. Factors contributing to these unequal
power relations include: socio-economic forces, the family institution where
power relations are enforced, fear of and control over female sexuality, belief
in the inherent superiority of males, and legislation and cultural sanctions that
have traditionally denied women and children an independent legal and social
status.

Lack of economic resources underpins women’s vulnerability to

violence and their difficulty in excreting themselves from a violent
relationship. The link between violence and lack of economic resources and

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dependence is circular. On the hand, the threat and fear of violence keeps
women from seeking employment, or, at best compels them to accept low-
paid home-based explicative labour. And on the other, without economic
independence, women have no power to escape from abusive relationship.

The reverse of this arguments also holds true in some countries; that
is, women’s increasing economic activity and independence is viewed as a
threat which leads to increased male violence. This is particularly true when
the male partner is unemployed, and feels his power undermined in the
household.

Studies have also linked a rise in violence to the destabilization of

economic patterns in society. Macro economic polices such as structural
adjustment programmes, globalization and growing inequalities they have
created, have linked to increasing levels of violence in several regions,
including Latin America, Africa and Asia. The transition period in the
countries of Central and Eastern Europe and the former Soviet Union-with
increases in poverty, unemployment, hardship, income inequality, stress, and
alcohol abuse-has led to increased violence in society in general, including
violence against women. These factors also act indirectly to raise women’s
vulnerability by encouraging more risk taking behavior, more alcohol and
drug abuse, the breakdown social support networks, and the economic
dependence of women on their partners.

Cultural ideologies – both in industrialized and developing countries

provide legitimacy for violence against women in, certain circumstances.
Religious and historical traditions in the past have sanctioned the chastising
and beating of wives. The physical punishment of wives has been particularly
sanctioned under the notion of entitlement and ownership of women. Male
control of family wealth inevitably places decision making authority in male

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hands leading to male dominance and proprietary rights over women and
girls.

The concept of ownership, in turn, legitimizes control over women’s

sexuality, which in many law codes has been deemed essential to ensure
paternal inheritance. Women’s sexually is also tied to the concept of family
honour in many societies. Traditional norms in these societies allow the
killing of ‘errant’ daughters, sisters and wives suspected to defiling the
honour of the family by indulging in for bidden sex, or marrying and
divorcing without the consent of the family. By the same logic, the honour of
a rival ethnic group or society can be defiled logic, the honour of a rival
ethnic group or society can be defiled by acts of sexual violence against its
women.

Experiences during childhood such as witnessing domestic violence as

factors that put children at risk. Violence may be learnt as a means of
resolving conflict and asserting man-hood by children who have witnessed
such patterns of conflict resolution.

Excessive consumption of alcohol and other drugs has also been noted
as a factor in provoking aggressive and violent male behaviour towards
women and children. a survey of domestic violence in Moscow revealed that
half the cases of physical abuse are associated with the husband’s excessive
alcohol consumption.”

The isolation of women in their families and communities is known to

contribute to increased violence, particularly if those women have little
access to family or local organizations. On the other hand women’s
participation in social networks has been noted as a critical factor in lessening
their vulnerability to violence and in their ability to resolve domestic
violence. These network could be informal (family and neighbours) or formal

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(community organization, women’s self-help groups, or affiliated to political

parties).

Lack of legal protection, particularly within the sanctity of the home, is

a strong factor in perpetuating violence against women. Until recently, the
public/private distinction that has ruled most legal systems has been a major
obstacle to women’s rights. Increasingly, however, States arc seen as
responsible for protecting the rights of women even in connection with
offences committed within the home. In many countries violence against
women is exacerbated by legislation, law enforcement and judicial systems
that do not recognize domestic violence as a crime. The challenge is to end
impunity for the perpetrators as one means of preventing future abuse.

Investigations by Human Rights Watch have found that in cases of

domestic violence, law enforcement official frequently reinforce the batters’
attempts to control and demean their victims. Even though several countries
now haw laws that condemn domestic violence, ‘when committed against a
woman in an intimate relationship, these attacks are more often tolerated as
the norm than prosecuted as laws. In many places, those who commit
domestic violence are prosecuted vigorously and punished more leniently
than perpetrators of similarly violent crimes against strangers.

2.4. Triggers for Domestic Violence :-

Violence once started in the life of spouses, never stops. Therefore, it

would be important to understand as to what riggers the onset of family
violence. During the literature survey it was found that there were quite few
serious causes for the onset of violence. A long list of such trivial factors may
be created. Many a time husbands beat their wives in the very first nigh in
order to establish the first impression that she has to accept her subordination,
be obedient and frightened to the dominance of the husband. Another

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example of male domination: Husband hit her because the child was carrying
and she did not pick him up or because she refused to have sex with him.
There are some triggers related with household chores. Some of them are as
follow:

(i) Not finished work in time;

(ii) Not doing work properly;

(iii) Not completing certain tasks assigned.

Women’s main role in the family is cooking and feeding others. On set
of domestic violence quite often reported due to cooking related triggers such
as –

(i) Unable to finish cooking in time;

(ii) Vegetable of not someone’s choice;

(iii) Not cooked properly and well;

(iv) Meals were not tasty;

(v) Stand of heir in the food;

(vi) Size of chapatti/quality chapatti;

There are certain other triggers which related to women’s etiquette,

social norms and taboos. Some of the examples are listed below:

(i) Dressing fashionably

(ii) Laughing without reason

(iii) Talking in a loud voice

(iv) Combing hairs a numbers of times

(v) Not tied hair in a simple way

(vi) Kept hair united

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(vii) Does not talk, dress or carry herself according to the prescribed norms

(viii) Went out without permission

(ix) Not being at home when husband came in

Some of the husbands hit her when she asked to visit her natal place
after marriage or after childbirth or when she felt a need to be with her
mother. Such demands lead to bickering and subsequently in physical
violence by husbands. It is quite frequent inside homes that women are
abused and slapped whenever they make any chook (mistakes).

Another important reason for domestic violence remains the dynamic

in the family. As per the established gender norms, she has to obey the in-law
in the in the family. Any chook (laxity) in compliance may triggered
violence, e.g.

(i) Quarrels with in-laws

(ii) Disrespectful behaviours with the elders in the family

(iii) Complaining to the husband about mother in laws reproaches

(iv) Mother-in-law and other in-laws would complain with the husband,
then husband gets angry and beats her

(v) Not listening to in-laws

Many-a-times childbirth also triggered violence like-

(i) Giving birth to a girl child

(ii) Not agreeing to abort a female foetus

(iii) No child bearing capacity

(iv) Not giving birth in the first gear of marriage

(v) Giving birth to girl child repeatedly

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Triggers for the onset of domestic violence also include sexual

difficulties of husband or wife. It may include such triggers as –

(i) Doubts of love affairs of spouses

(ii) Extra-marital relations of spouses

(iii) Resistance to abnormal sexual behavior of spouses

(iv) Connection with boyfriends/girl friends even after marriage

(v) Husband’s mistress

(vi) Jealous of each other

Violence is also triggered in the family on dowry related matters. So

many times willingly or due to circumstances, parents of the bride are not
able to fulfill the promises made at the time of marriage, which causes sharp
resentments. The brunt of this sort of dissatisfaction and the resultant anger is
borne by the newly wed couple. The bride is asked to bring all the materials
or money promised from her home. If she denies to comply, the bickering,
harassment, torture and physical violence which sometimes results into
dowry deaths, are obvious.

Alcoholism and drug abuse by husband also triggers violence as it

causes rise to various problems in the family Husband may have problems at
work place resulting in the economic dependency of the husband on lies
parents. He may also develop certain mental or psychological disorders in his
personality or may even develop some anti-social personality traits which
naturally cause a lot many hardship to the family especially the spouses.

Thus, gender violence is rooted in the societal power structures. The

powerful male tends to torture the powerless female on trivial pretexts. Such
violence in not justified even if the wife or any other female members has
made any chook (mistake).

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2.5. CAUSES OF DOMESTIC VIOLENCE :-

2.5.1. Patriarchy and Masculinity :-

Though physical violence is pervasive against women it can take other

forms which generate an atmosphere of threat or reprisal. Women have been
the victims of patriarchal sexual practices through exploitation by landlords
during caste riots, in mental rape, in state police concerning reproduction, and
of course, through wife battering. Domestic violence is part of this scenario
of upholding socially sanctioned norms and practices. Is this violence a
function of complex patriarchal structures? If we talk to women, it appears
that husbands appear to represent their familial, economic and social status
and power as well as their sense of themselves as husbands and men by
controlling their wives. Masculinity expresses itself in the context of
marriage through sexual demands and subjugation of their female partners.
And, an atmosphere of male domination is one of the prominent reasons for
domestic violence.

2.5.2. Gender Roles :-

The context of rigid gender roles and norms may also cause intimate
partner violence that refers to ‘disciplining’ women when they do not fulfill
gender role expectations. Any gaps in role perceptions and role expectations
lead to domestic violence. Young married women often enter households that
have clearly defined gender hierarchies and roles. Prescribed gender roles
place a heavy burden on these women. Domestic violence many emerge if the
women object to conform to the given roles and seek to change them.

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2.5.3. Family Environment & Prevailing Dynamics :-

The micro family dynamics prevailing in households and the differing

gender norms (stringent v. flexible) play very crucial role in creating a
conducive or not conducive family role in creating a conducive or not
conducive family environment. A strong linkage exists between gender
rolled, household’s environment and physical or mental abuse of the young
married women. The patterns of communication prevailing in the household,
the pressures of widely prevalent social norms relating to futility and
sexuality and the social mores related to marriage dictate the creation of
circumstances for the health, life and the overall well-being of young married
women. Therefore, contextual studies that map family dynamics are required
in order to identify norms and beliefs within a specific cultural context that
support violence in the household. Although violent and non-violent homes
may have similar gender role expectations, their reactions to perceived
failures to fulfill these expectations differ. And, that ultimately leads to
creation of an environments in the family. Role of social work through use of
counseling skills may go a long way in creation of a conducive climate in the
family. Thus, household’s environment is a key element in the perpetuation
or withering away of violence against women.

2.5.4. The Existing Power Relations in the Family :-

Violence against women is rooted in their powerlessness. Women’s

absence in the decision making process in family affairs has also in avoiding
pregnancy in the first year of marriage affect their life badly. It has adverse
effect on their health and nutrition. Due to this inability to make decisions
regarding their own bodies, the newly wed adolescent girls are rarely able to
negotiate their first pregnancy. If they try to do so, it leads to violence and
harassment.

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Violence can be visible, invisible, camouflaged in moral terms, but the

underlying power in the threat of penalties; of coercive power; of increasing
the vulnerability of the victim in many suitable ways that options or
autonomy for their own well-being. Therefore, there is a need to intimate a
process of actualization of women’s rights citizens that may lead to change
the existing power structure in the families.

2.5.5. Dowry :-

‘Dowry’ an external agent coming through ‘modern desires and

consumerist values’ has been the dominant paradigm for understanding the
violence in the family. It results in continued domestic bickering, wife
beatings and other forms of domestic violence, which many times results into
occurrence of dowry deaths.

2.5.6. Early Marriage :-

In India, early marriages have been prevalent since the times

immemorial. Early marriage place young women at a risk for physical
violence and harassment and torture. An IIPS (1996) Study found that 45 per
cent of marriages occurred below the age of 18 years in India. Early marriage
thrust roles and responsibilities of an adult on the young girls. The associated
motherhood adversely affects their physical health and general well-being.
The risk is compound when we observe that overriding importance is
attached to prove fertility within the first year of marriage. Hence, the
repercussions of early marriages and physical violence can compound
distress for young married women.

2.5.7. Other Factors :-

Several studies point to the combination of factors at the individual,

family and cultural levels promoting. It has also been seen that women

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without the ‘empowering’ attributes like education, employment; money, etc.

face more difficulties and more violence. However, women’s assertion of
self-esteem and her desire to earn and self-dependency may also cause
violence. NFHS-2 (2006) explored that 56 per cent of women believed that
such violence is justified in cases of disobedience, neglecting the house or
children, disrespecting in-laws, etc. Such notions tend to perpetuate family
violence.

Thus, various social, cultural, familial, personal, economic and other

variables keep on working which creates the phenomena of violence in the
spousal relationship. It is the interaction of various variable which is
responsible for occurrence of domestic strife. Increasing urban density and
stress as well as intra family stresses also contribute to the situation.

2.6. Scope of the Problem :-

The family is often equated with sanctuary-a place where individuals

seek love, safety, security, and shelter. But the evidence shows that it is also
place that imperils lives, and breeds some of the most drastic forms of
violence perpetrated against women and girls.

Violence in the domestic sphere is usually perpetrated by males who

are, or who have bee, in positions of trust and intimacy and power husbands,
boyfriends, fathers, fathers-in-law, stepfathers, brothers, uncles, sons, or other
relatives. Domestic violence is in most cases violence perpetrated by men
against women. Women can also be violent, but their actions account for a
small percentage of domestic violence.

Violence against women is often a cycle of abuse that manifests itself

in many forms throughout their lives (see Table 1). Even at the very
beginning of her life, a girl may be the target of sex-selective abortion or

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female infanticide in cultures where son’s preference is prevalent. During

childhood, violence against girls may include enforced malnutrition lack of
access medical care and education, incest, female genital mutilation, early
marriage, and forced prostitution or bonded labour.

Some go on to suffer throughout their adult lives battered, raped and

even murdered at the hands of intimate partners. Other crimes of violence
against women include forced pregnancy abortion or sterilization and harmful
traditional practices such as dowry-related violence, sati (the burning of a
widow on the funeral pyre of her husband), and killings in the name of
honour. And in later life, widows and elderly women may also experience
abuse.

While the impact of physical abuse may be more ‘visible’ than

psychological scarring, repeated humiliation and insults, forced isolation,
limitations on social mobility, constant threats of violence and injury, and
denial of economic resources are more subtle and insidious forms of violence.
The intangible nature of psychological abuse makes it harder to define and
report, leaving the woman in a situation where she is often made to feel
mentally destabilized and powerless.

Jurists and human rights experts and activists have argued that the
physical sexual and psychological abuse, sometimes with fatal outcomes,
inflicted on women is comparable to torture in both its nature and severity. It
can be perpetrated intentionally, and committed for the specific purpose of
punishment, intimidation, and control to the woman’s identity and behaviour.
It takes place in situations where a woman may seem free to leave, but is held
prisoner by fear of further violence against herself and her children, or by
lack of resources, family, legal of community support.

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Table-1

Examples of Violence against Women Throughout the Life Cycle

Phase Type of violence

Pre-birth Sex-selective abortion; effects of battering during

pregnancy on birth outcomes.

Infancy Female infanticide: physical, sexual and psychological

abuse

Girlhood Child marriage; female genital multilation; physical,

sexual and psychological abuse; incest; child prostitution
and pornography

Adolescence Dating and courtship violence (e.g. acid throwing and date
rape) economically coerced sex (e.g. school girls having
and Adulthood
sex with “sugar daddies” in return for school fees); incest;
sexual abuse in the workplace; rape; sexual harassment;
forced prostitution and pornography; trafficking in women;
partner violence; marital rape; dowry abuse and murders;
partner homicide; psychological abuse; abuse of women
with disabilities; forced pregnancy.



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CHAPTER-III
International scenario

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Chapter -III

International scenario

Violence against women is a manifestation of historically unequal

power relations between men and women, which have led to domination over
and discrimination against women by men and to the prevention of the full
advancement of women, and that violence against women is one of the
crucial social mechanisms by which women are forced into a subordinate
position compared with men.
- Declaration on Elimination of Violence
against Women, 1993

...States should pursue by all appropriate means and without delay a

policy of eliminating violence against women and, to this end, should :

(d) Develop penal, civil, labour and administrative sanctions in

domestic legislation to punish and redress the wrong caused to women who
are subjected to violence; women who are subjected to violence should be
provided with access to the mechanisms of justice and, as provided for by
legislation, to just and effective remedies for the harm that they have
suffered; State should also inform women of their rights in seeking redress
through such mechanisms;

- Declaration on Elimination of Violence

against Women, 1993

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3.1. Provisions Under International Conventions :-

Gender inequalities throughout the world are among the most all
pervasive, though deceptively subtle forms of inequality. Gender equality
concerns each and every member of the society and forms the very basis of a
just society. Human rights issues, which affect women is particular, play a
vital role in maintaining the peace and prosperity of a just society. It is an
established fact that women represent the very kernel of the human society
around which social change must take place.

Today as we stand at the threshold of the 21st century, we are still

unable to boast of a society where there is total gender equality or gender
equity. Until recently, the question of gender equality or gender equity was
merely a topic of theoretical discussion. Things are changing but rather
slowly. Human rights of women do not appear to be high on the national or
international agenda. 1

It is high time that human rights of women are accorded proper

priority, not only in public life but also in private life.

At the international level, prohibition against sex discrimination was

first articulated in the United Nations Charter of 1945 and later reiterated in
the Universal Declaration of Human Rights of 1948.

The ‘Universal Declaration of Human Rights, 1948’ professes the

principles of non-discrimination and proclaims that all human beings are born
free and equal in dignity and rights, without any distinctions including that of
sex. The ‘International Covenant of Economic, Social and Cultural Rights,
1966’, the ‘International Covenant on Civil and Political Rights, 1966’, a
number of regional rights charters, viz., European Convention for the
1
. Anand, Dr. Justice, A.S. in Domestic Violence and Law, Report of Colloquium on Justice for Women,
Empowerment Through Law, Law Collective, WRI (2000), p. xxvii.

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Protection of Human Rights and Freedom 1950’, ‘African Charter on human

and People’s Rights, 1981’ and ‘American Convention on Human Rights,
1969 all include provisions for progressive protection and guarantees for
women. Attention has also been focused exhaustively on gender issues by the
UN and other organizations from time to time. Thus, the UN General
Assembly unanimously adopted a ‘Declaration of Eliminations of
Discrimination Against Women’ in November 1967, resolving to abolish sex
discriminatory laws and practices, to grant women equal rights with men in
matters of civil law including absolute interest in property, and free choice
and consent in marriage. The ‘Second World Conference on Human Rights’
held at Vienna in June,1993 called for full and equal participation of women
in all aspects of public life. 2

The international community has also responded to increased violence

against children with the development of standards and norms prohibiting
violence to children and establishing a framework of principles and
standards. The adoption of the Convention on the Right of the Child in 1989
provide a clear statement prohibiting all forms of violence against children,
reaffirming previous human rights instruments. Within the United Nations
Commission on Crime Prevention and Criminal Justice, 3 attention is paid to
the development of concrete criminal justice standards and strategies that
address children’s roles within the criminal justice system.

National criminal justice systems must be involved in responding to

violence against children. Abuses and injustices towards children will no be
corrected by reforming these systems alone. However, criminal justice
systems can become more effective tools in denouncing, preventing and
responding to incidents of violence against children. At the very least,
2
. Bhatt, D.K., Human Rights and Gender Issues, Indian Socio-Legal journal, Vol. XXVI, 2000, p. 58
3
. Skinnider, Elieen, Violence Against Children : International Criminal Justice Norms and Strategies, in
Gaur, K.D. (ed.) Criminal Law and Criminology 2002, p. 739.

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measures must be taken to ensure that crime prevention and criminal justice
practice are themselves not contributing to the revictimization of children.
Guidance can be taken from the UN Commission on Crime Prevention and
Criminal Justice in order to develop a framework of standards, principles and
guidelines for reforming criminal justice system, so as to make it more
responsive to the needs of children.

The movement from the First UN World Conference on Women held

in Mexico in 1975 to the Fourth World Conference on Women held at
Beijing in 1995, has been a journey in search of equality, development and
grant of rightful place to women throughout the world.

The fourth World Conference on Women, held at Beijing just a few

year back, has brought us further forward by reaffirming gender equality as a
fundamental pre-requisite for social justice. The Platform for Action at the
Beijing Conference addressed 11 substantive areas of concern, poverty,
education, health, violence, armed conflict, economic structures and policies,
decision-making, mechanisms for the achievements of women, women’s
human rights, mass media and the environment. The Conference also
attempted to strike a balance between local customs, traditions and cultures
and indeed, Beijing Conference went even so far as to demand that religious
and cultural values should contribute to the realization of women enjoying
full equality.

Perhaps the most important conceptual advance in the international law

of women’s rights is the Convention on the Elimination of All forms of
Discrimination Against Women (CEDAW), 4 effective 1981, which provides
that women be given rights equal to those of men on equal terms. The
Preamble maintains that:
4
. Anand, Dr. Justice A.S., In Domestic Violence and Law, Report of Colloquium of Justice for Women,
Empowerment Through Law, Lawyer’s Collective, WRI, 2000, p. xxviii.

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“The full and complete development of a country, the welfare of the

world and the cause of peace require the maximum participation of women
on equal terms with men in all fields.”

The Indian Government ratified CEDAW in 1993. The significance of

CEDAW is that it presents an opportunity and challenge to use the law to
women’s advantage, to broaden the way in which we perceive the law and its
possibilities in terms of gender violence.

Recommendation No. 19 to CEDAW is the broadest attempt so far to

understand what violence against women is, in terms of women’s experience.
Its importance is that it helps give recognition to those areas of abuse and
neglect which have so far not been acknowledged as gender violence
including displacement, sexual harassment, certain kinds of customary laws,
family violence and sexual exploitation. It also recognizes health as an issue
of abuse.

Traditional Laws on domestic violence against women seek to penalize

the offender via systems that lead to protracted humiliation and suffering
endured by the women. The recommendation tries to correct this by
specifically providing for support services and gender sensitive training of
judicial law enforcement officers and other public officials as essential to
ensure effective implementation of CEDAW.

After the adoption of CEDAW, 44 countries have enacted separate

laws on domestic violence. The report by the special Rapporteur on violence
against women has a model legislation on domestic violence. It is
recommended that the states should adopt the broadest possible definitions of
the acts of domestic violence and relationship within which domestic
violence occurs.

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Relationship which comes within the purview of the legislation must

include: wives, live-in partners, former wives, or partners, girl friends, female
relatives (including but not restricted to sisters, daughters, mothers) and
female household workers. The state urged to enact comprehensive domestic
violence legislation integrating criminal and civil irregularities, rather than
making marginal amendments to existing penal and civil laws.5

3.2. Convention On The Elimination Of All Forms Of Discrimination

Against Women, 19796 :-

The State Parties to the present Convention,

Noting that the Charter of the United Nations reaffirms in fundamental

human rights, in the dignity and worth of the human person and in the equal
rights of men and women,

Noting that the Universal Declaration of Human Rights affirms the

principle of the inadmissibility discrimination and proclaims that all human
beings are born free and equal in dignity and rights and that everyone is
entitled to all the rights and freedoms set forth therein, without distinction of
any kind, including distinction based on sex.

Nothing that the State Parties to the International Covenants on Human

Rights have the obligation to ensures the equal rights of men and women to
enjoy all economic, social, cultural, civil and political rights,

Considering the international conventions conclude the auspices of the

United Nations and the specialized agencies promoting equality of rights of
men and women,

5
. The Lawyer’s Collective, August, 99, p. 11.
6
. Dated 18-12-1976 and came into force in 1981.

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Noting also the resolutions, declarations and recommendations adopted

by the United Nations and the specialized agencies promoting equality of
men and women,

Concerned, however, that despite these various instruments extensive

discrimination against women continues to exist,

Recalling that discrimination against women violates the principles of

equality of rights and respect for human, is an obstacle to the participation of
women, on equals term with men, in the political, social, economic and
cultural life of their countries, hampers the growth of the prosperity of society
and the family and makes more difficult the full development of the
potentialities of women in the service of their countries and of humanity.

Concerned that in situations of poverty women have the least access to

food, health, education, training and opportunities for employment and other
needs,

Convinced that the establishment of the new international economic

order based on equity and justice will contribute significantly towards the
promotion of equality between men and women,

Emphasizing that the eradication of apartheid, of all forms of racism,

racial discrimination, colonialism, neo-colonialism, aggression, foreign
occupation and domination and interference in the internal affairs of states is
essential to the full enjoyment of the rights of men and women,

Affirming that the strengthening of international peace and security,

relaxation of international tension, mutual co-operation among all States
irrespective of their social and economic under strict and effective
international control, the affirmation of the principles of justice, equality and
mutual benefit in relationship among countries and the realization of the
rights of peoples under alien and colonial domination and foreign occupation

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to self-determination and independence, as well as respect for national

sovereignty and territorial integrity, will promote social progress and
development and as a consequence will contribute to the attainment of full
equality between men and women,

Convinced that the full and complete development of a country, the

welfare of the world and the cause of peace require the maximum
participation of women on equal terms with men in all fields,

Bearing in mind the great contribution of women to the welfare of the

family and to the development of society, so far not fully recognized, the
social significance of maternity and the role of both parents in the family and
in upbringing of children and aware that the role women in procreation
should not be a basis for discrimination but that the upbringing of children
requires a sharing of responsibility between men and women and society as a
whole,

Aware that a change in the traditional role of men as well as the role of
women. In society and in the family in needed to achieve full equality
between men and women,

Determined to implement the principles set forth in the Declaration on

the Elimination of Discrimination against women and, for that purpose, to
adopt the measures required for the elimination of such discrimination in all
its forms and manifestations,

3.3. Convention Against Torture And Other Cruel, Inhuman Or

Degrading Treatment Punishment, 1984 7

The States Parties to this Convention, Considering that, in accordance

with the principles proclaimed in the Charter of the United Nations,

7
. Vide United Nations General Assembly Resolution 39/46, dated 10th December, 1984 and entered into
force on 26.06.1987.

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recognition of the equal and inalienable of all members of the human family
is the foundation of freedom, justice and peace in the world.

Recognizing that those rights derive from the inherent dignity of the
human person,

Considering the obligation of State under the Charter, in particular

Article 55, to promote universal respect for, and observance of, human rights
and fundamental freedoms,

Having regard to Article 5 of the Universal Declaration of Human

Rights and Article 7 of the International Covenant on Civil and Political
Rights, both of which provide that no one shall be subjected to torture or to
cruel, inhuman or degrading treatment or punishment,

Having regard also to the Declaration on the Protection of All Persons

from Being Subjected to Torture and Other Cruel, Inhuman or Degrading
Treatment or punishment, adopted by the General Assembly on 9 December,
1975,

Desiring to make more effective the struggle against torture and other
cruel, inhuman or degrading treatment or punishment throughout the world,
have agreed on some rights.

3.4. 1st World Conference On Women, Mexico, 1975

Resolution adopted by the General Assembly of the United Nations

concerning the World Conference on International Women’s Year, (Mexico,
19 June-2 July 1975)

The first world conference on the status of women was convened in

Mexico City to coincide with the 1975 International Women’s Year’s,
observed to remind the international community that discrimination against

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women continued to be a persistent problem in much of the world. The

Conference, along with United Nations Decade for Women (1976-1985)
proclaimed by the General Assembly five months later at the urging of the
Conference, launched a new era in global efforts to promote the advancement
of women by opening a worldwide dialogue on gender equality. A process
was set in motion process of learning that would involve deliberation,
negotiation, setting objectives, identifying obstacles and reviewing the
progress made.

The Mexico City Conference was called for by the United Nations
General Assembly to focus international attention on the need to develop
future oriented goals, effectives strategies and plans of action for the
advancement of women. To this end, the General Assembly identified three
key objectives that would become the basis for the work of the United
Nations on behalf of women:

• Full gender equality and the elimination of gender discrimination;

• The integration and full participation of women in development;

• An increased contribution by women in the strengthening of world

peace (reed below)

The conference responded by adopting a World Plan of Action, a

document that offered guidelines for government and the international
community to follow for the next ten years in pursuit of the three key
objectives set by the General Assembly. The Plan of Action set minimum
targets, to be met by 1980, that focused on securing equal access for women
to resources such as education, employment opportunities, political
participation, health services, housing, nutrition and family planning.

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This a approach marked a change, which had started to take shape in

the early 1970s, in the way that women were perceived. Whereas previously
women had been seen as passive recipients of support and assistance, they
were now viewed as full and equal partners with men, with equal rights to
resources and opportunities. A similar transformation was taking place in the
approach to development, with a shift from an earlier belief that development
served to advance women, to a new consensus that development was not
possible without the full participation of women.

The Conference called upon governments to formulate national

strategies and identify targets and priorities in their effort to promote the
equal participation of women. By the end of the United Nations Decade for
Women, 127 Member States had responded by establishing some form of
national machinery, institutions dealing with the promotion of policy,
research and programmes aimed at women’s advancement and participation
in development.

Within the United Nations system, in addition to the already existing

Branch (now Division) for the Advancement of Women, the Mexico City
Conference led to the establishment of the International Research and
Training Institute for the Advancement of Women (INSTRAW) and the
United Nations Development fund for women (UNIFEM) to provide the
institutional framework for research, training and operational activities in the
area of women and development.

An important facet of the meeting in Mexico City was that women

themselves played an instrument role in shaping the discussion. Of the 133
Member State delegations gathered there, 113 were headed by women.
Women also organised a parallel NGO forum, the International Women’s
Year Tribune, which attracted approximately 4,000 participants.

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Sharp differences emerged among the women gathered at the Forum,

reflecting the political and economic realities of the times. Women from the
countries of the Eastern Block, for instance, were most interested in peace,
while women from the West emphasized equality and those from the
developing world placed priority on development. Nevertheless, the Forum
played an important role in bringing together women and men from different
culture and backgrounds to share information and opinions and to set in
motion a process that would help unite the women’s movement, which by the
end of the Decade for Women would become truly international. The Forum
was also instrumental in opening up the United Nations to NGOs, who
provided access for the voice of women to the Organization’s policy making
process.

Declaration of Mexico on the Equality of Women and Their

Contribution to Development and Peace, 1975;

The World Conference of the International Women’s Year,

Recognizing that women of the entire world, whatever differences

exist between them, share the painful experience of receiving or having
received unequal treatment, and that as their awareness of this phenomenon
increases they will become natural allies in the struggle against any form of
oppression, such as is practiced under colonialism, neocolonialism, Zionism,
racial discrimination and apartheid, thereby constituting an enormous
revolutionary potential for economic and social change in the world today.

Recognizing also the urgency of improving the status of women and

finding more effective methods and strategies which will enable them to have
the same opportunities as men to participate actively in the development of
their countries and to contribute to the attainment of world peace,

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Convinced that women must play an important role in the promotion,

achievement and maintenance of international peace, and that it is necessary
to encourage their efforts towards peace, through their full participation in the
national and international organizations that exist for this purpose,

Women have a vital role to play in the promotion of peace in all

spheres of life: in the family, the community, the nations and the world. As
such, women must participate equally with men in the decision-making
processes which help to promote peace at all levels.

Women as well as men should promote real, general and complete

disarmament under effective international control, starting with nuclear
disarmament. Until genuine disarmament is achieved, women and men
throughout the world must maintain their vigilance and do their utmost to
achieve and maintain international peace.

3.5. Special Rapporteur On Violence Against Women Warns Of

Threats To Gains On Women’s Human Rights, 2004 :-

As Commission Continues Consideration of Women’s Human Rights,

Speakers Raise Issues on Human Trafficking, HIV/AIDS Infection, Domestic
Violence. (Delayed in transmission)

GENEVA, 5 April (UN Information Service) – The Special Rapporteur

on violence against women this morning addressed the Commission on
Human Rights, warning against alarming trends political conservatism and
backlash which threatened the gains made thus far in the global women’s
human rights agends.

Yakin Erturk, Special Rapporteur on violence against women, said she

had emphasized the universality of violence against women, the multiplicity
of its forms and the intersection of diverse kinds of discrimination against

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women rooted in other systems of subordination and inequality in her report

to the Commission. Thus, while recognizing positive developments, it must
also be noted that great divisions among humankind were increasingly
articulated cultural lines and that the management of conflict based on
cultural and religious specificities often resulted in the justification of
violence against women both within religious and between conflicting
groups.

On the subject of official visits undertaken in 2004, Ms. Erturk said she
been to both El Salvador and Guatemala in February. While both countries
had the necessary legal framework in international human rights law, the
challenges faced were grave as violence against women and girls continued
to be widespread inside and outside the home. The official response to brutal
murders of women had illustrated that violence against problems related to
the violence and exploitation linked with domestic and transnational criminal
networks.

El Salvador, speaking as a concerned country, affirmed that the

protection of women was a priority at both the national and international
levels and that efforts had been made to implement important projects for the
modernization of organizations entrusted with oversight of violence against
women.

Guatemala, also speaking as a concerned country, highlighted the

priority accorded to combating the causes and consequences of violence
against women. Among ongoing efforts, a new unit had been established
within the national civil police to investigate crimes against women.

Switzerland, Canada, Cuba, Ireland (on behalf of the European Union)

and Pakistan participated in the inter-active dialogue that followed the
Special Rapporteur’s presentation.

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As the Commission continued with its general debate on the

integration of women’s human rights and the gender perspective, it heard
from national delegations who emphasized the need to ensure effective
implementation into national legislation and practice of international
agreements, the rising threat of trafficking in women and children and the
interconnectedness of HIV/AIDS infection and the vulnerability of women
due to traditional cultural and sexual roles.

Participating in the general debate were representatives of the

Dominican Republic, New Zealand (on behalf of Canada and Australia),
Ireland (on behalf of the European Union)] Lithuania (on behalf of the Baltic
and Nordic States), Sri Lanka, Republic of Korea, South Africa, Cuba, China,
India, Paraguay, Pakistan, Bahrain, Croatia, United States, Sudan, Indonesia,
Nigeria, Bhutan and Chile.

Speaking in exercise of the right of reply were the Representatives of

Japan, the United States and the Republic of Korea.

The Commission will resume its consideration of the integration of the

human rights of women and the gender perspective at 3 p.m. this afternoon.

3.6. The United Nations Fourth World Conference On Women –

Beijing, China September 1995 Action For Equality, Development
And Peace (Relevant Provisions) :-

Mission Statement :- The Platform for Action is an agenda for

women’s empowerment. It aims at accelerating the implementation of the
Nairobi Forward-looking Strategies for the Advancement of Women [1] and
at removing all the obstacles to women’s active participation in all spheres of
public and private life through a full and equal share in economic, social,
cultural and political decision-making. This means that the principle of

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shared power and responsibility should be established between women and

men at home, in the workplace and in the wider national and international
communities. Equality between women and men is a matter of human rights a
condition for social justice and is also a necessary and fundamental
prerequisite for equality, development and space. A transformed partnership
based on equality between women and men is a condition for people-centred
sustainable development. A sustained and long-term commitment is essential,
so that women and men can work together for themselves, for their children
and for society to meet the challenges of the twenty-first century.

The Platform for Action reaffirms the fundamental principle set forth
in the Vienna Declaration and Programme of Action, [2] adopted by the
World Conference on Human Rights, that the human rights of women and of
the girl child are an inalienable, integral and indivisible part of universal
human rights. As an agenda for action, the Platform seeks to promote and
protect the full enjoyment of all human rights and the fundamental freedoms
of all women throughout their life cycle.

The Platform for Action emphasizes that women share common

concerns that can be addressed only by working together and in partnership
with men towards the common goal of gender 8 equality around the world. It
respects and values the full diversity of women’s situations and conditions
and recognizes that some women face particular barriers to their
empowerment.

The Platform for Action requires immediate and concerted action by

all to create a peaceful, just and humane world based on human rights and
fundamental freedoms, including the principles of equality for all people of
8
. For the commonly understood meaning of the term “gender”, see annex IV to the Present report.

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all ages and from all walks of life, and to this end, recognizes that broad
based and sustained economic growth in the context of sustainable
development is necessary to sustain social development and social justice.

The success of the Platform for Action will require a strong

commitment on the part of Governments, international organizations and
institutions at all levels. It will also require adequate mobilization of
resources at the national and international levels as well as new and
additional resources to the developing countries from all available funding
mechanisms, including multilateral, bilateral and private sources for the
advancement of women; financial resources to strengthen the capacity of
national, subregional, regional and international institutions; a commitment to
equal rights, equal responsibilities and equal opportunities and to the equal
participation of women and men in all national, regional and international
bodies and policy making processes; and the establishment or strengthening
of mechanisms at all levels for accountability to the world’s women.

3.7. Charter Of United Nations, 1945 9 (Relevant Provision) :-

Preamble :-

We the peoples of the United Nations Determined :-

To save succeeding generations from the scourge of war, which twice

in our lifetime has brought untold sorrow to mankind, and

To reaffirm faith in fundamental human rights, in the dignity and worth

of the human person, in the equal rights of men and women and of nations
large and small and

9
. Vide June 26, 1945, 59 Stat. 1031, T.S. 993, 3 Beavans 1153, entered into force on 24-10-1945.

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To establish condition under which justice and respect for the

obligations arising from treaties and other sources of international law can be
maintained, and

To promote social progress and better standards of life in larger

freedom.

Article-1

3. To achieve international cooperation in solving international problems

of an economic, social cultural, or humanitarian character, and in
promoting and encouraging respect for human rights and for
fundamental freedoms for all without distinction as to race, sex,
language, or religions; and

4. To be a center for harmonizing the actions of nations in the attainment

of these common ends.

3.8. Universal Declaration Of Human Rights, 1948 10 (Relevant

Provision) :-

Whereas recognition of the inherent dignity and of the equal and

inalienable rights of all members of the human family is the foundation of
freedom, justice and peace in the world.,

Whereas disregard and contempt for human rights have resulted in

barbarous acts which have outraged the conscience of mankind, and the
advent of a world in which human beings shall enjoy freedom of speech and
belief and freedom from fear and want has been proclaimed as the highest
aspiration of the common people,

10
. Vide United Nations General Assembly Resolution 217A (III), dated 10th December.

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Whereas it is essential, if man is not to be compelled to have recourse

as a last resort, to rebellion against tyranny and oppression, that human rights
should be protected by the rule of law.

Article-1

All human beings are born free and equal in dignity and rights. They
are endowed with reason and conscience and should act towards one another
in a spirit of brotherhood.

Article-2

Everyone is entitled to all the rights and freedoms set forth in this
Declaration, without distinction of any kind, such as race, colour, sex,
language, political or other opinion, national or social origin, property, birth
or other status.

Article-3

Everyone has the right to life, liberty and security of person.

Article-4

No one shall be held in slavery or servitude; slavery and the slave trade
shall be prohibited in all their forms.

Article-5

No one shall be subjected to torture or to cruel, inhuman or degrading

treatment or punishment.

Article-6

Everyone has the right to recognition everywhere as person before the

law.

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Article-7

All are equal before the law and are entitled without any discrimination
to equal protection of the law. All are entitled to equal protection against any
discrimination in violation of this Declaration and against any incitement to
such discrimination.

Article-8

Everyone has the right to an effective remedy by the competent

national tribunals for acts violating the fundamental rights granted him by the
constitution or by law.

Article-16

1. Men and women of full age, without any limitation due to race,
nationally or religion, have the right to marry and to found a family.
They are entitled to equal rights as to marriage, during marriage and at
its dissolution.

2. Marriage shall be entered into only with the free and full consent of the
intending spouses.

3. The family is the natural and fundamental group unit of society and is
entitled to protection by society and the State.

3.9. International Covenant On Civil And Political Rights, 196611

(Relevant Provisions) :-

The States Parties to the present Covenant :-

Recognizing that these rights derive from the inherent dignity of the
human person,

11
. Adopted by World Conference on Human Rights, at Vienna, Austria, dated 25-6-1993.

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Recognizing that, in accordance with the Universal Declaration of

Human Rights, the ideal of free human beings enjoying civil and political
freedom and freedom from fear and want can only be achieved if condition
are created whereby everyone may enjoy his civil and political rights, as well
as his economic, social and cultural rights,

Considering the obligation of States under the Charter of the United

Nations to promote universal respect for and observance of, human rights and
freedoms,

Article- 6

1. Every human being has the inherent right to life. This right shall be
protected by law. No one shall be arbitrarily deprived of his life.

3.10. United Nations World Conference On Human Rights, 199312

(Relevant Provision) :-

Vienna Declaration and Programme of Action :-

The World Conference on Human Rights,

Considering that the promotion and protection of human rights is a

matter of priority for the international community, and that the Conference
affords a unique opportunity to carry out a comprehensive analysis of the
international human rights system and of the machinery for the protection of
human rights, in order to enhance and thus promote a fuller observance of
those rights, in a just and balanced manner,

Recalling the Preamble to the Charter of the United Nations, in

particular the determination to reaffirm faith in fundamental human rights, in

12
. Adopted by World Conference on Human Rights, at Vienna, Austria, dated 26.06.1993.

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the dignity and worth of the human person, and in the equal rights of men and
women and of nations large and small,

Deeply concerned by various forms of discrimination and violence, to

which women continue to be exposed all over the world,

18. The human rights of women and of the girl child are an inalienable,
integral and indivisible part of universal human rights. The full and equal
participation of women in political, civil, economic, social and cultural life, at
the national, regional and international levels, and the eradication of all forms
of discrimination on grounds of sex are priority objectives of the international
community.

Gender based violence and all forms of sexual harassment and

exploitation, including those resulting from cultural prejudice and
international trafficking, are incompatible with the dignity and worth of the
human person, and must be eliminated. This can be achieved by legal
measures and through national action and international cooperation in such
fields as economic and social development, education, safe maternity and
health care, and social support.

The human rights of women should form an integral part of the United
Nations human rights activities, including the promotion of all human rights
instruments relating to women.

The world Conference on Human Rights urges Governments,

institutions, intergovernmental and non-governmental organization to
intensify their efforts for the protection and promotion of human rights of
women and the girl-child.



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CHAPTER-IV
Protection of Women From Domestic
Violence Act, 2005 : An Overview

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Chapter -IV

Protection of Women From Domestic

Violence Act, 2005 : An Overview

“Legislation can not by itself normally solve deep-rooted social

problems. One has to approach them in other ways too, but legislation is
necessary and essential so that is may give that punch and have that
educative factor as well as legal sanctions behind it which help public
opinion to be given a certain shape”.

-Pt. Jawahar Lal Nehru

Women suffer from domestic Violence in India and all over the world.
Married Women in rural as well as urban areas are a victim of emotional,
mental, physical and financial abuse. In western countries, where the society
is more open, women tend to walk out of marriages sooner and experience
lesser pressure from their families and society as opposed to their eastern
counterparts. Unfortunately, it is a myth in India that women in metropolitan
cities are so modern and self conscious that it is not possible for their families
to harass them. The truth is quite different. It is true that they are educated,
are more independent and modern than women in small towns. But even they
do not know the meaning of “domestic violence.” They are also harassed for
the same reasons dowry, husband indulging in several affairs, dissatisfied and
harassing in laws and husband. More often than not, the women starts by
compromising with the hope that perhaps someday things will improve. To
make it worse, the parents and family members of the women put pressure on

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her to stay married as it is the “right thing” to do. What makes the situation
more hopeless is if the woman in question also has a child. Today, it is
extremely important for every women to know her rights after marriage. It is
known fact that “domestic violence” has trebled in the last 4-5 years. 1 India
has adopted the convention on the Elimination of All Forms of
Discrimination against Women and the Universal Declaration of Human
Rights, both of which ensure that women are given equal rights as men and
are not subjected to any kind of discrimination. The Constitution of India also
guarantees substantive justice to women. Article 15 of the Constitution
provides for prohibition of discrimination against the citizens on grounds of
religion, race, caste, sex or place of birth or their subjection to any disability,
liability or restriction on such grounds. Article 15 (3) gives power to the
legislature to make special provision for women and children. In exercise of
this power, the Protection of Women from Domestic Violence Act was
passed in 2005.

4.1. What is Domestic Violence ? :-

Domestic violence is defined as a pattern of behaviours involving

physical, sexual, economic and emotional abuse, alone or in combination, by
an intimate partner often for the purpose of establishing and maintaining
power and control over the other partner. The origins of domestic violence
are in social, legal and cultural norms, some historical and some current,
including acceptance of violent behaviour by men as the heads of households.
While domestic violence occurs in all types of intimate relationships, it is
overwhelmingly a problem of violence perpetrated by men against women. 2
Considering the problem the Protection of Women from Domestic Violence

1. Protection of Women from Domestic Violence Act, 2005 by Sudha Awasthi

2. Report of Commission on Domestic Violence Fatalities, 1997

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Act, the term domestic violence3 includes elaborately all forms of actual
abuse or threat of abuse of physical, sexual, verbal, emotional and economic
nature that can harm, cause injury to, endanger the health, safety, life, limb or
well-being, either mental or physical of the aggrieved person. The definition
is wide enough to cover child sexual abuse, harassment caused to a women or
her relatives by unlawful dowry demands, and material rape.

The kinds of abuse covered under the Act are :

Physical Abuse :-

(i) An act or conduct causing bodily pain, harm, or danger to life, limb, or
health;

(ii) An act that impairs the health or development of the aggrieved person;

(iii) An act that amounts to assault, criminal intimidation and criminal

force.

Sexual Abuse :-

(i) Any conduct of a sexual nature that abuses, humiliates, degrades, or

violates the dignity of a women.

Verbal and Emotional Abuse :-

(i) Any insult, ridicule, humiliation, name-calling;

(ii) Insults or ridicule for not having a child or a male child;

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

3. Section 3 of The Protection of Women from Domestic Violence Act, 2005

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Economic Abuse :-

(i) Depriving the aggrieved person of economic or financial resources to

which she is entitled under any law or custom or which she acquires
out of necessity such as household necessities, stridhan, her jointly or
separately owned property, maintenance, and rental payments;

(ii) Disposing of household assets or alienation movable or immovable

assets;

(iii) Restricting continued access to resources or facilities in which she has

an interest or entitlement by virtue of the domestic relationship
including access to the shared household.

4.2. Domestic Relationship :-

“Domestic relationship” means a personal relationship between 2

adults in which one provides personal or financial commitment and support
of a domestic nature for the material benefit of the other and includes a
domestic partnership but does not include a legal marriage. 4

A person has a “domestic relationship” with another person if the

person :

(a) Is or has been married to the other person or

(b) Has or has had a de facto relationship, within the meaning of the
Property Act 1984, with the other Person, or

(c) Has or has had an intimate personal relationship with the other person,
whether or not the intimate relationship involves or has involved a
relationship of a sexual nature, or

4. Section 3 of Australian Domestic Relationship Act, 1994

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(d) Is living or has lived in the same household as the other person, or

(e) Is living or has lived as a long-term resident in the same residential

facility as the other person and at the same time as the other (not being
a facility that that is a correctional centre within the meaning of the
Crimes (Administration of Sentences) Act 1999 or a detention centre
within the meaning of the Children (Detention Centres) Act, or

(f) Has or has had a relationship involving his or her dependence on the
ongoing paid or unpaid care of the other person other person, or

(g) Is or has been a relative of the other person or

(h) Is the case of an Aboriginal person or a Torres Strait Islander, is or has

been part of the extended family or kin of the other person according to
the indigenous kinship system of the person’s culture.5

However the protection of women from domestic violence Act, 2005 in

India provides a comprehensive definition covering nearly each and every
relationship in which the person have lived together at any point of time 6 or
shared households. A domestic relationship as under the Act includes live-in
relationships and other relationships arising out of membership in a family.

4.3. Who can claim beneficiaries under the Act?7 :-

(i) Women : The Act covers women who have been living with the
Respondent in a shared household and are related to him by blood,
marriage, or adoption and includes women living as sexual partners in
a relationship that is in the nature of marriage. Women in fraudulent or

5. Section 5 Crimes (Domestic and Personal Violence Act, 2007, New South Wales.
6. Section 2(f) of The Protection of Women from Domestic Violence Act, 2005
7. Section 2(a), (b) and Section 3 of The Protection of Women from Domestic Violence Act, 2005

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bigamous marriages or in marriages deemed invalid in law are also

protected.

(ii) Children : The Act also covers children who are below the age of 18
years and includes adopted, step or foster children who are the subjects
of physical, mental, or economical torture. Any person can file a
complaint on behalf of a child.

4.4. Shared Household :-

A shared household is a household where the aggrieved person lives or

has lived in a domestic relationship either singly or along with the
Respondent. Such a household should be owned or tenanted, either jointly by
both of them or by either of them or both of them jointly or singly have any
right, title, interest or equity in it. It also includes a household that may
belong to the joint family of which the Respondent is a member, irrespective
of whether the Respondent or person aggrieved has any right, title or interest
in the shared household.

4.5. Protection Provided to women under the Act Right to Reside in a

Shared Household :-

The Act secures a women’s right to reside in the matrimonial or shared

household even if she has no title or rights in the household. A part of the
house can be allotted to her for her personal use. A court can pass a residence
order to secure her right of residence in the household. 8 The Supreme Court
has ruled in a recent judgment that a wife’s claim for alternative
accommodation lie only against her husband and not against her in-laws and
that her right to ‘shared household’ would not extend to the self-acquired
property of her-in-laws.

8. Section 17, The Protection of Women from Domestic Violence Act, 2005

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4.6. Right to Obtain Assistance and Protection :-

A women who is victimized by acts of domestic violence will have the

right to obtain the services and assistance of police officers, Protection
Officers, Service Provides, Shelter Homes and medical establishments as
well as the right to simultaneously file her own complaint under Section 498
A of the Indian Penal Code for matrimonial cruelty.

4.7. Right to Issuance of orders9 :-

She can get the following orders issued in her favour through the
courts once the offence of domestic violence is prima facie established :

(i) Protection Orders : The magistrate can pass a protection order to

prevent the respondent from aiding or committing an act of domestic
violence, entering the workplace, school or other places to be visited
by the aggrieved person in usual course of nature, establishing any
kind of communication with her, alienating any assets used by both
parties, causing violence to her relatives or doing any other act
specified in the Protection order.

(ii) Residence Orders : This order provides that the aggrieved person is
not dispossessed from her accommodation, the shared household is not
disposed off, she is provided an alternative accommodation by the
Respondent if she so requires, the Respondent is removed from the
shared household and he and his relatives are barred from entering the
area allotted to her. However, an order to remove oneself from the
shared household cannot be passed against any women.

(iii) Economic Relief : The Respondent can be made accountable for all
expenses incurred and losses suffered by the aggrieved person and her

9. Section 18, 19, 20, 21, 22, 23, The Protection of Women from Domestic Violence Act, 2005

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child due to the infliction of domestic violence. Such relief may

include loss of earnings, medical expenses, loss or damage to property,
and payments towards maintenance of the aggrieved person and her
children.

(iv) Custody Orders : This order grants temporary custody of any child or
children to the aggrieved person or any person making an application
on her behalf. It may make arrangements for visit of such child or
children by the Respondent or may disallow such visit if it is harmful
to the interests of the child or children.

(v) Compensation Orders : The Respondent may be directed to pay

compensation and damages for injuries caused to the aggrieved person
as a result of the acts of domestic violence by the Respondent. Such
injuries may also include mental torture and emotional distressed
caused to her.

The aggrieved person will be entitled to obtain relief granted by other

suits and legal proceedings initiated before a civil court, family court or a
criminal court.

Punishment which may be imposed under the act :-

(a) For Respondent:10 The breach of Protection Order or interim

protection order by the Respondent is a cognizable and non-bailable
offence. It is punishable with imprisonment for a term, which may
extend to one year or with fine, which may extend to twenty thousand
rupees or with both. He can also be tried for offences under the Indian
Penal Code and the Dowry Prohibition Act.

10. Section 21, The Protection of Women against Domestic Violence Act, 2005

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(b) For Protection Officer : 11 If he fails or does not discharge his duties
as directed by the Magistrate without any sufficient cause, he will be
liable for having committed an offence under the Act with similar
punishment. However, he cannot be penalized without the prior
sanction of the state government. Moreover, the law protects him for
all actions taken by him in good faith.

4.8. Complain and action on Complain under the Act :-

Application to magistrate: 12 The person suffered domestic violence or

any other witness of the offence on behalf of the aggrieved person can
approach a Police Officer, Protection Officer, and Service Provider or can
directly file a complaint with a Magistrate for obtaining orders or reliefs
under the Act. The informant who in good faith provides information relating
to the offence to the relevant authorities will not have any civil or criminal
liability.

The court is required to take cognizance of the complaint by instituting

a hearing within three days of the complaint being filed in the court.

Notice to Respondent :13 The Magistrate shall give a notice of the date
of hearing to the Protection Officer to be served on the Respondent and such
other persons as directed by the Magistrate, within a maximum period of 2
days or such further reasonable times as allowed by the Magistrate.

Duration for Disposal of Case/Speedy Justice; The court is required to

dispose of the case within 60 days of the first hearing.

Appropriate Orders; Upon finding the complaint genuine, the court can
pass a Protection Order, which shall remain in force till the aggrieved person

11. Section 33, The Protection of Women against Domestic Violence Act, 2005
12. Section 12, The Protection of Women against Domestic Violence Act, 2005
13. Section 13, The Protection of Women against Domestic Violence Act, 2005

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applies for discharge. If upon receipt of an application from the aggrieved

person, the Magistrate is satisfied that the circumstances so require, he may
alter, modify or revoke an order after recording the reasons in writing.

A Complaint can also be filed under Section 498 A of the Indian Penal
Code, which defines the offence of matrimonial cruelty and prescribes the
punishment for the husband of a woman or his relative who subjects her to
cruelty.

4.9. Appeal :-

An appeal can be made to the Court of Session against any order

passed by the Magistrate within 30 days from the date of the order being
served on either of the parties.14

In the end it can be said that the passing of the Domestic Violence Act
(DVA) is an important marker in the history of the women’s movement in
India, which has confronted the problem of domestic violence. However on
the other hand the possibilities of misuse of the Act also cannot be avoided.
There are various provisions under the Act which may make it a play toy in
the hands of wicked females to harass their male partners. But simply
because the Act can be misused should never be a ground for avoiding the
benefits of the Act which may add a new definition and dimension to women
liberation. Whether the Act will be miss-used or not only time will tell for
there cannot be any perceptible change in women’s status overnight. It will
take at least a decade before things change. This Act will provide them a
safeguard and a sort of sword in their hand so that they will not be seen as an
animal, or shoe that you can wear anytime and throw anytime but at least
some women would benefit which would set a precedent for others and may
raise the voice for their rights.

14. Section 29, The Protection of Women against Domestic Violence Act, 2005

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4.10. Highlights of the Act :-

(1) The applicant under this Act will be only woman.

(2) This Act is undoubtedly a human right issue.

(3) This Act is enacted for the elimination of all forms of discrimination
against women. The law also addresses sexual abuse of children and
forcing young girls to marry against their will.

(4) This Act protects women against violence of any kind specially that
occur within the family. The Act seeks to cover all those women who
are or have been in a relationship with the abuser, where both parties
have lived together in a shared household and are related by
consanguinity, marriage or adoption. In addition, relationship with
family members living together as joint family is included. Even those
women who are sisters, mothers, single women or women living with
the abuser are entitled to legal protection under the present Act. 15

(5) This Act is enacted keeping in view the rights guaranteed under Art. 14
(Right to equality), Art. 15 (Prohibition of Discrimination under age,
sex, caste etc.) and Art. 21 (Fundamental Right to life and liberty) of
the Constitution for a remedy under the Civil Law to protect women
domestic violence.

(6) The definition of domestic violence itself is one that includes actual
abuse or the threat of abuse that is physical sexual, verbal, emotional or
economic. Thus the Act covers the entire gamut of violence within the
household, including harassment ensuring out of unlawful dowry
demands to the women or her relatives.16 Besides physical violence

15. Ibid, Section 2(a), (f)

16. Ibid, Section 3

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beating, slapping, hitting, kicking and pushing it also covers sexual

violence like forced intercourse, forcing a wife or partner to look at
pornographic material and child sexual abuse.

(7) This act was drafted keeping in mind the situation in India. Provisions
such as the inclusion of economic abuse exemplified thus.

(8) Important advance made by the Act in understanding the nature of

domestic violence has been in the combination of civil and criminal
remedies. While civil remedies are tailored to meet the circumstances
of each case, criminal sanctions provide a great deterrent effect among
the perpetrators of domestic violence.

(9) An important feature of the landmark law is a woman’s right to secure

housing. It provides for a women’s right to reside in the matrimonial or
shared household, whether or not she has any title or rights in the
household. This right is secured by a residence order, which is passed
by a residence order, which is passed by a Court of Magistrate.17
Interestingly too, the new law does not distinguish between married
women and women who are in live in relationship. It provides equal
protection to both from abuse at the hands of their partners. Women are
often discouraged from filling complaints about domestic violence
because they will be left homeless and destitute, once turned out of the
house of the husband. The idea of residence orders therefore has a dual
purpose. In that it preview destitution of women, and empowers them
to utilize the legal system available by security. The experience of
women’s organizations working with battered and harassed women is
that it is the fear of being thrown out of the matrimonial home or any

17. Ibid, Section 17

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shared household that has often compelled these women to put up with
violence.

(10) The reasoning behind this provision gives an easy access for the
aggrieved. The option of Family Courts, wherever they have been was
also considered. However, it was noted that the Family Courts, are
greatly overcrowded due to the channeling of cases under S. 125, Cr.
P.C. to these Courts.

(11) There has been an effort in this Act to simplify and male more
effective issues of the method of filing a complaint of domestic
violence and of obtaining relief under it. It also simplifies the
procedure for an aggrieved that wishes to file a complaint; the Act
allows anyone, even a friend or an NGO who has witnessed domestic
violence to file a complaint in that regard to the protection officer.

(12) The Act makes it mandatory for the Magistrate to hear a case within
three days of the complaint being filed. The idea of prompt relief
continues in S. 12(5), which directs the Magistrate to finish hearing the
case within six months reaching the Court.

(13) The present legislation empowers the magistrate to pass protection

orders in favour of the abused to prevent the abuser from aiding or
committing an act of domestic violence or any other specified act such
as entering a work place or any other place frequented by the abused,
attempting to communicate with the abused, her relatives or others who
provide her assistance to escape from domestic violence. 18 It also
provides for the appointment of protection officers 19 and the
registration of non-governmental organizations (NGOs) as service

18. Ibid, Section 18

19. Ibid, Section 8

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providers to provide assistance to the abused in matters dealing with

medical examination obtaining legal aid and safe shelter.20

(14) The Act provides for a breach of protection order or interim protection
order by the respondent as a cognizable and non cognizable offence
punishable with imprisonment or a fine, or both. Offenders can also be
charged under other sections of the Indian Penal Code (IPC), if
applicable.

(15) State Govt. will have to appoint a woman protection officer at each
police station to book and pursue cases. Victims can seek
compensation under the law.

Thus we see that the present Act is a departure from the existing laws
in a number of ways :

(i) It recognizes the second wife and other women’s rights.21 So far, the
law (except Muslim Law) recognized only monogamous marriage and
the rights of only one wife. It will no longer be possible for a man in
live-in relationship to ill treat a women or throw her out without any
compensation. It is for the first time that the law took cognizance of the
relationships outside marriage and provided redressal. Up till now, the
second wife in a bigamous marriage could not seek relief under the
law. The present Act seeks to rectify this anomaly. It provides not just
protection from violence but also ensure a roof over her head. 22

(ii) In a society where women’s rights are denied and dominant structures
of family and civil society are still patriarchal, the Act is a progressive
piece of legislation capable of providing much relief to other women. 23

20. Ibid, Section 10

21. Ibid, Section 2(1)
22. Economic and Political Weekly, September 17, 2005 p. 4101; The Employment News, November 12-18,
2005 p. 1.
23. The Times of India, August 23, 2005

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(iii) It contests the prevalent notion that violence is physical and related to
dowry alone. It recognizes that domestic violence can be physical,
psychological, sexual, verbal and economic. 24

(iv) It also enunciates the right of women to live in their matrimonial

homes. 25 The Act clarifies and consolidates a right that had been put to
use by a very few women.

(v) In order to provide speedy relief provision has been made for ad
interim protection orders. 26

(vi) In order to facilitate access to the judiciary it creates auxiliary services,

it creates an official cadre called protection officers 27 and recognizes
NGOs as service providers. 28

(vii) It provides for positive entitlements such as maintenance,29 protection

from further violence30 and right to custody over children 31 as opposed
to more penalization of the husband.

(viii) The claims under present law would be adjudicated in the magistrate’s
courts. 32 These courts, being located at the sub district level, will
enable a large number of women to access them. Some of these relief’s
already exist in law, but are dispersed over civil, criminal and personal
laws, forcing women to appeal to various courts.

(ix) More importantly present provisions can be used by women from all
religions. It is praiseworthy that as compared to the previous drafts of

24. The Protection of Women from Domestic Violence Act, 2005, Section 3.
25. Ibid, Section 17
26. Ibid, Section 23
27. Ibid, Section 8
28. Ibid, Section 10
29. Ibid, Section 20
30. Ibid, Section 18
31. Ibid, Section 21
32. Ibid, Section 12

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2002 the present Act is distinctly different. It fulfils an urgent need for
a law that goes beyond the present criminal law to ensure other rights,
such as right to matrimonial residence which could be made available
only through civil legislation. It is also welcoming that the aggrieved
women can approach the court directly rather than going through the
police.

4.11. Critical Appraisal of the Act :-

In spite of having a number of laudatory provisions it is apprehended

that broadening the definition of “aggrieved person” and “domestic
relationships” will allow relative of the husband to seek a variety of orders
against a wife or a woman living in a relationship like marriage. One of the
fundamental notions behind the law was to ensure that the rights of women
and children are protected and that they are not thrown out of the matrimonial
home or abandoned. But under the present law these very rights may be
jeopardized and wives can be further victimized. 33

The legislature by enacting the Act in question has attempted to

provide legislature by enacting the Act in questions has attempted to provide
protection and assistance to women facing domestic violence within the four
walls of their homes. In its zeal of providing protection and assistance to
women, the legislature has given recognition and legal status to extramarital
relationships or other immoral relationships, which are neither recognized by
our society or by our existing matrimonial and penal laws. The concept of
“live in” “or living relationships” which is very common in Western
countries, is sought to be legalized by the act in question, which is neither
permissible nor possible in view of the moral values followed in our society.

33. www.southasiaoneworld.net; www.flonnet.com

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Besides this Section 125, Cr. P.C. which provides for grant in
maintenance to which, children father and mother in a broader perspective
does not recognize persons having illegitimate relationships, entitled to claim
maintenance except an illegitimate child Section 125(4) specifically prohibits
wife living in adultery from claiming any maintenance from the husband u/s
125(1) Cr. P.C.

It is a matter of irony that while on one hand a married women

indulging in adultery is not entitled to claim maintenance from her husband,
she will be entitled to claim maintenance from the person with whom she had
or is having illegitimate relationship. The legislature also did not notice that
adultery is also an offence u/s 497 IPC. Sb, therefore while on one hand, a
man will be prosecuted for adultery, at the same time he will be compelled to
pay maintenance as well as residency rights to a women with whom he is
alleged to have maintained illegitimate relationship. This provision will
destroy the matrimonial relationships thereby disturbing the social fabric of
the society.

The women facing domestic violence within the four corners of their
homes need to be protected from domestic violence faced by them. But it
cannot be a reason to recognize immoral and illegitimate relationship. The
legislature did not understand that our society is already very much
influenced by the western culture. Foreign entertainment channels are
spreading and propagating certain ideas and concepts of human relationships,
which are not only alien to the Indian society but also against the moral
values of Indian culture. In the garb of providing financial assistance to the
women, the legislature cannot give legal status to the illegitimate
relationships. The illegitimate relationship by stretch of imagination can be
considered at par with relationships such as those of wife, mother and sister,

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which have their own place in our society and are seen with respect and
honour.34

It is also feared that the protection officers provided for in the Act have
been given extremely wide powers 35 that have the potential of being misused.
Such officers are supposed to be intermediaries between the court and the
victim and are meant to take in applications for domestic violence and make a
domestic violence report.

They have also been given wide powers to assist a court in the
discharge of its functions hence they may be gender biased and bureaucratic.
It is suggested that if necessary, the court may appoint any person to assist in
the case. And once the court issues the protecting order the onus of
implementation should be with the State through its police. The court may
also issue a suspended warrant which can come into force in the event the
order is violated.

Another short coming is that only registered NGOs can play the role of
service provides. It completely negates the idea of wider community
involvement and social intervention in dealing with the issue. It excludes
many groups and individuals who have otherwise been involved in helping
out victims of domestic and other violence. It is also suspected that the police
may harass the non registered groups or even individual for helping the
victims. 36

Besides, by making domestic violence non-bailable offence the

legislature has committed the same mistake which it committed by making
Section 498-A of the Indian Penal Code (IPC). When husband or any of his

34. Chopra, Nirmal, (2007), “The Protection of Women From Domestic Violence Act, 2005 immorality
Legalized “Cri. L. J. 54
35. Chapter 3 of Domestic Violence Act, 2005
36. The Hindu, August 25, 2005 p. 12; The Indian Express, September 10, 2005 p. 2, August 29, 2005 p. 3.

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relatives is sent to jail for being indicated under Section 498 IPC, it makes the
compromise and settlement between the parties difficult due to prestige issue
involved. The problem of domestic violence is a social and cultural problem
rather than a law and order problem. It should be handled carefully by taking
into account all the socio-cultural factors.

A comprehensive law dealing with domestic violence was long due. It

is the first comprehensive legal acknowledgement of domestic violence. The
Protection of Women from Domestic violence Act, 2005 fulfils, at least on
paper, many of the hopes that women have articulated over the last several
years. The Act may become a reality if it takes cognizance of the objections
raised and suggestions made by those who have been involved with women
issues and gender justice. The Parliament should make some necessary
amendments so as to prevent its potential misuse and to make it more
effective.



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CHAPTER-V
Judicial Approach towards the
protection of women from Domestic
Violence Act, 2005

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Chapter -V

Judicial Approach towards the protection of

women from Domestic Violence Act, 2005

5.1. Case Laws on Section-2 :-

5.1.1. Suresh Khallar v. Vijya Kumar Khullar1:-

Provisions involved

1. Section 2(a), 18, 20, 26, of Protection of Women from Domestic

Violence Act, 2005

2. Hindu Marriage Act, 1955-Section 24

3. Hindu Adoptions and Maintenance Act, 1956-Sections 18, 20, 22

This case pertains to the maintenance and there were three issues
before the court as follows :-

(i) Whether the petition is maintainable.

(ii) To what amount and for which period the plaintiff is entitled to as
maintenance from the defendant.

(iii) Relief.

Though the case pertained to Section 18 of the Hindu Adoptions and

Maintenance Act, 1956, the court is coming to the conclusion took support

1
. AIR (2008) Del 1(2008) 148 DLT 685 (DB)

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from the Provisions of Protection of Women from Domestic Violence Act,

2005, in particular, Sections 2(a), 18, 20, 26, of the Act, 2005 Section 2(a)
defines “aggrieved person” means any women who is, or has been, in a
domestic relationship with the respondent and who alleges to have been
subjected to any act of domestic violence by the respondent. This Section
2(a) read with Section 18 (Protection order), Section 20 (Monetary reliefs)
and Section 26 (Relief in other suits and legal proceedings) armed the court
with the conclusion that the petition filed by the appellant under Sections 18,
20 and 23 of the Hindu Adoptions and Maintenance Act, 1956 is
maintainable. The Supreme Court, in fact, relied on the point that she is the
aggrieved person.

5.1.2. Aruna Parmod Shah v. Union of India 2 :-

Provisions involved

1. Protection of Women from Domestic Violence Act, 2005-Sections 2,

17, 18.

2. Indian Penal Code- Section 498A.

3. Constitution of India- Articles 14, 15, 21.

In this case there were two prayers :-

(a) That the Act, 2005 is ultra virus of the Constitution of India.

(b) To quash the proceedings before the Metropolitan Magistrate, New

Delhi.

In this respect the learned counsel for the petitioner has assailed the
virus of the Act on the ground that in as much as it provides protection only

2
. 2008 (2) CC Cases (Del HC) 356

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to women and not to men, the statute offends Article 14 of the Constitution of
India and referred to Section 2(f) of the Act, 2005. “Domestic relationship”
means a relationship between two person who live, or have, at any point of
time, lived together in a shared household, when they are related by
consanguinity, marriage, or through a relationship in the nature of marriage,
adoption or are family members living together as a joint family”. He has
strenuously objected to the placing of married persons on the same platform
as those in a relationship in the nature of marriage. The provisions of the Act,
2005 jeopardise and /or diminish the rights of legally wedded women
inasmuch as wives’ rights may stand diluted in accommodating the rights of
the women who is in a relationship in the nature of marriage with the
husband. So the emphasis was on “wife though marriage” and “wife from
akin to marriage”. Placing them on the same platform, stigmatizing the
concept of marriage as sacrament. The court held that challenge to the Act,
2005 as ultra vires is misconceived and devoid of merit as the Act intends to
provide for protection of women.

5.1.3. Ajai Kant v. Alka Sharma 3 :-

Provisions involved

1. Protection of Women from Domestic Violence Act, 2005-Sections 2

(q), 12, 29.

2. Criminal Procedure code, 1974-Section 482.

In the instant case two points were raised i.e. (i) who is the aggrieved
person, (ii) procedure for seeking relief.

Section 2(a) of the Act 2005, speaks of “aggrieved person” means any
women who is or has been, in a domestic relationship with the respondent
3
. 2008 Cr LJ 264(MP)

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who alleges to have been subjected to any act of domestic violence by the
respondent and “respondent” as per Sections 2(q) of the Act means any adult
male person and who is, or has been, in a domestic relationship with the
aggrieved person and against whom the aggrieved person has sought any
relief under this Act. So the whole stress in on the expression “any adult male
person”. So the respondent must satisfy two things i.e. (i) The respondent is a
male person, (ii) he is adult. But in this case the application was filed also
against petitioner Nos. 3 and 4 who are not adult male person and as such is
not maintainable.

5.1.4. S. R. Batra v. Taruna Btra 4 :-

Provisions involved:

1. Protection of Women from Domestic Violence Act, 2005-Sections 2(S),

17,19 (1) (f).

2. British Matrimonial Homes Act, 1967.

3. Constitution of India Article 227, Article-50.

In the instant case the respondent Smt. Taruna Batra was married to
Amit Batra, son of the appellant, on 14-4-2000. After the marriage
respondent Tarun Batra was living with her husband Amit Batra in the house
of appellant 2 on the second floor. The said house belonged to appellant 2
and not to her son Amit Batra. The issue before the High Court in the petition
was whether the second floor of the house is the matrimonial home of Smt.
Taruna Batra. The Single judge of the High Court of Delhi held it the
matrimonial home and that she was entitled to continue to reside there. The
Supreme Court in the appeal discussed Sections 2 (s) of the Act 2005 which
speaks of “shared household” and referring to Section 17 and Section 19 (1)
4
. (2007) 3 SCC169: AIR 2007 SC 1118: (2007) 136 DLT 1: (2007) 2 Cr LR 1582

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(f) held that the said house neither belongs to the husband of the respondent
nor to the joint Hindu family where her husband is the member. The house
belongs to appellant 2 and is not a “shared household” and set aside the order
of the High Court; Taruna Batra v. S.R.Batra5, is reversed.

5.2. Case Laws on Section 12 :-

5.2.1. M.A. Mony v. M.P. Leelamma 6 :-

Provisions involved:

1. Protection of Women from Domestic Violence Act, 2005- Sections 12,

20, 22, 26.

2. Family Courts Act, 1984- Section 7(2)(b).

3. Criminal Procedure Code, 1974- Section 482.

It is a case where two petitions, one before the Family Court and the
other before the Magistrate under Section 12 of Act 2005 are pending. There
is a petition under Section 482 Cr. P.C. for transfer of petition filed under
Section 12 of Act 2005 seeking relief under Sections 20 and 22 to the Family
Court and the High Court in view of Section 26 of the Act, 2005 held that
family court is not invested with any power to deal with an application under
Section 12 of Act 2005. Because except the Magistrate clothes with an
authority to deal with an application under Section 12 of Act 2005, no Civil
Court or Family Court has jurisdiction to deal with an application under
Section 12 of Act 2005 and hence the said application cannot be transferred
to the Family Court.

5.2.2. Milan Kumar Singh v. State of Uttar Pradesh7 :-

5
. AIR 2005 Del 270
6
. (2007) 2 KLJ 202007 Cr LJ 2604 (Ker)

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Provisions involved:

1. Protections of Women from Domestic Violence Act, 2005- Sections 12

and 12(3).

2. Criminal Procedure Code, 1974- Section 482.

This application is under Sections 482 Cr. P.C. against the application
filed under Section 12 seeking relief under Sections 17, 18, 19, 20 and 22 of
Act, 2005, to be quashed and stay of proceeding wherein Sections 12(3) and
Rule 6 have been attacked. The High Court held that the aggrieved person
can file this application directly before the Magistrate, or approach the
protection officer and in case of emergency to the service provider and with
their help to the Magistrate concerned. The application filed under Section 12
cannot be rejected merely on the basis that it does not contain verification not
on the application itself. The complainant filing affidavit swearing contents
of the complaint amounts to sufficient compliance of prescribed procedure.

5.2.3. Ahammed s/o Late Kunhabdulla v. Laila D/o Assaina 8 :-

In this case the first respondent filed an application under Section 12 of

Act 2005. The learned Magistrate received the said petition and ordered
notice to the petitioner herein. The petitions invoked the inherent powers of
the High Court under Section 482 Cr. P.C. to quash the proceedings. The
learned counsel raised the following points:-

(i) It is apprehended that the Magistrate may pass an interim order

under Section 23 or final order under Section 18 to be executed
under Section 32 and it would jeopardise the position of the
petitioners.

7
. 2007 Cr LJ4742 (All)
8
. 2007 T l Ker-0-19

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(ii) That the procedural requirements of Rule 6 have not been complied
with and proper application in the prescribed format has not been
filed.

(iii) That the magistrate has secured an ex-parte report of the

commissioner deputed by the court and this procedure is unknown
to law.

That High Court held that it is for the petitioners to appear before the
Magistrate and they can raise all objections including non-compliance with
Rule 6 and the Magistrate would look to all objects before passing any order
under Section 23 or under Section 18 of the Domestic Violence Act, 2005.
The criminal miscellaneous petition stand dismissed.

5.2.4. Ajai Kant v. Alka Sharma 9 :-

Provisions involved:

1. Protection of Women from Domestic Violence Act, 2005-Sections 12,

2(q)

2. Criminal Procedure Code, 1974-Section 482 Cr. P.C.

It is a petition under Section 482 Cr. P.C. for quashing the order passed
by the Magistrate issuing notice to the petitioners on an application filed
under Section 12 of Act, 2005, on the ground that no report from the
protection officer under Section 12 has been called. The High Court assailing
the petition under Section 482 Cr. P.C. has stated that when the opportunity
to assail the order of the Magistrate in appeal or revision is available taking
the recourse to section 482 Cr. P.C. is not required. The magistrate is directed
to deal with the case in accordance with the provision of law.

9
. (2008) 1 DMC1: (2007) 62:2008 Cr LJ 264(MP)

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Note:- the whole stress of the High Court was on the expression “report, if
any received by the magistrate shall be considered”, indicates that if no report
is called or no report is considered, cannot be the ground for quashing the
proceedings.

5.2.5. Dr. Vinod Prashar v. State of Utter Pradesh10 :-

Provisions involved:

1. Protection of Woman from Domestic Violence Act, 2005- Sections 12,

13.

2. Criminal Procedure Code 1974-Section 482.

Application was filed under Section 12 and notice was issued under
Section 13 of Act, 2005. Application was filed under section 482 Cr. P.C.
The said application was dismissed on two grounds:-

(i) It is not maintainable as no cognizance of offence has been taken.

(ii) Further proceedings under the Act are essentially civil in nature and
it is only for purpose of cutting down procedural delay that powers
have been conferred on the Magistrate and Criminal Procedure
Code, 1974 for enforcement of rights under the Act and for this
reason also an application under Section 482 would not ordinarily
lie against an order under the Act.

5.2.6. Karthibeyan v. Sheeja 11 :-

10
. 2008 Cr LJ (NOC)837 (All)
11
. (2008) II DMC 92: (2008 Ker LT-1-75) (Ker)

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Provisions involved:

1. Protection of Women from Domestic Violence Act, 2005- Section 12.

2. Constitution of India- Article 227.

This writ petition is directed against an ex- parte order passed by the
Magistrate. The petitioner filed an application to set aside the said ex- parte
order. That petition was dismissed and hence this petition under Article 227
of the Constitution of India. The petitioner could have challenged the order of
the Magistrate by a regular appeal under Section 29 of the Act which
provides the efficacious remedy which he did not avail. This petition under
Article 227 is not maintainable. However, the High Court made it clear that
the petitioner can approach the court under Section 29 either against the ex-
parte order or the order passed dismissing the restoration application subject
of course to the law of limitation.

5.2.7. Sunil Sharma v. Vinita Sharma 12 :-

It was a case for maintenance for the wife which was challenged. The
High Court held that order for grant of maintenance of Rs. 3000 per month is
not improper.

5.3. Case Laws on Section 17 :-

5.3.1. Vimla Ben Ajit Bhai Patel v. Vatslar Ben Ashokbhai patel 13 :-

Provisions involved:

1. Protection of Women form Domestic Violence Act, 2005- Sections 17

and 20.

2. Hindu Adoptions and Maintenance Act, 1956, Sections 4, 18, 19, 28.

3. Criminal Procedure Code, 1974-Section 83.

12
. AIR 2009(NOC) 1021 (Raj)
13
. (2008) 4 SCC 649: AIR 2008 SC 2675 : (2008) 65 AIC 38

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4. Civil Procedure Code, 1908-Order 21, Rule 54.

The facts of the case are that ‘S’ was married to ‘J’ son of the
appellants. The couple fell apart. A complaint petition was filed by ‘S’
against her husband and the applicants alleging commission of an offence
under Sections 406 and 114, I.P.C. The appellants were granted bail subject
to conditions. The whole matter involved maintenance. Vimlaben Ajitbhai
Patel is appellant 1 and Ajitbhai Revandas Patel is appellant 2. Sonalbhai
Ramesh Chandra Desai is respondent in Civil Appeal who was married to
Jatinder Ajitbhai Patel (son of the appellants). Since the appellants violated
the conditional bail and the bail on application was cancelled by the High
Court and resultantly the properties of the husband were attached and
auctioned and finally the matter reached the Supreme Court where the issue
of maintenance and matters connected therewith were discussed.

The Supreme Court said that the matters relating to grant of

maintenance are now governed by the provisions of the Hindu Adoptions and
Maintenance Act, 1956. Maintenance of a wife, during subsistence of
marriage is on the husband. It is a personal obligation. The obligation to
maintain a daughter-in-law arises only when the husband has died. Such an
obligation can also be met from the properties of which the husband is co-
sharer and not otherwise. The property in the name of the mother- in- law can
neither be a subject-matter of attachment nor during the life-time of the
husband his personal liability to maintain his wife can be directed to be
enforced against such property. There may be an order of maintenance
against the husband but in view of the settled position of law, the decree, if
any, must be executed against her husband and only his properties could be
attached therefore but not of her mother-in-law, appellant No.1. While
discussing this issue, the Supreme Court referred to the protection of Women
from Domestic Violence Act, 2005 with reference to the case of S.R. Batra v.

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Taruna Batra,(2007) 3 SCC 169 and said that the Domestic Violence Act,
2005 provides for a higher right in favour of a women. She not only acquires
a right to be maintain but also there under acquires a right of residence. The
right of residence is a higher right. The said right as per the legislation
extends to the joint properties in which the husband has a share. In any case,
the rights which may be available under any law can only be as against the
husband and not against the father-in-law or mother-in-law. The High Court
order was set aside and various directions were also issued.

5.3.2. Neetu Mittal V. Kanta Mittal 14 :-

Provisions involved :

1. Civil Procedure Code, 1908- Order 39, Rules1&2

2. Matrimonial Law – Right of wife to live in the house of the parents of

her husband.

In this case the respondents were parents of Vikas mittal and in- law of
Neetu Mittal (petitioner). They had separated from their son. The son had
taken a flat in Rohini for his own residence and residence of his wife. They
agreed to shift to their flat in Rohini under a compromise arrived at Police
Station. However, the wife did not stay in the flat in Rohini and she wanted to
live forcibly in the in-laws place which forced them to file the suit. The
senior civil judge allowed the application under Order 39 Rules 1and 2 CPC
and restrained the defendants (petitioner herein) from forcibly entering into
their house and disturbing the peaceful possession of the respondents. She in
her defence relied upon the provisions of the Protection of Women from
Domestic Violence Act, 2005 raising the point of “shared household”. The
High Court referred to Section 17(1) of the Act 2005 and relied on S.R. Batra

14
. AIR 2009 Del 72 : 152 (2008) DLT 691

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v. Taruna Batra 15, held that the order passed by the senior civil judge
granting injunction does not suffer any illegality and dismissed the petition.

5.4. Case Laws on Section 18 :-

5.4.1. In Aruna Parmod Shah v. Union of India 16 :-

In petitioner challenged the Act 2005 as ultra vires of the Constitution

of India and to quash the proceeding before the Metropolitan Magistrate as
violative of Section 18. The High Court rejected the plea of the petitioner that
the Act is ultra vires Regarding the second contention, the High Court had
said that it is not under-stood and are unable to appreciate the reason for the
challenge to Section 18. However, the High Court posted the matter to
subsequent date for argument on the issue of quashing the proceedings.

5.4.2. In Suresh Khullar v. Vijay Kumar Khullar 17 :-

Provisions involved

1. Hindu Adoption and Maintenance Act, 1956-Section 18, 20, 22.

2. Hindu Marriage Act, 1955-Section 24.

3. Protection of Women from Domestic Violence Act, 2005 – Sections

2(a), 18, 20, 26.

Facts of the Case

When the respondent had filed divorce petition against the appellant
herein under the Hindu Marriage Act, the appellant moved an application
under Section 24 of the Hindu Marriage Act for grant of maintenance and
ligation expenses. The matrimonial court granted maintenance @ Rs. 500 per
15
. 136(2007)DlT 1 (SC)
16
. (2008) 2 CC Cases (Del HC) 356
17
. AIR 2008 Del 1:148 (2008) DLT 685(DB)

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month vide order dated 24-9-1991 with effect from August, 1989. The
respondent paid maintenance for sometime but after that stopped making
payment. The appellant also moved application under Section 18, 20, 22 of
Hindu Adoptions and Maintenance Act, 1956 wherein maintenance was
claimed @ Rs. 3000 per month with effect from 5.1.2001 with adjustment of
Rs. 500 per month being received by her in the matrimonial proceedings. The
application for interim maintenance was rejected. The appellant thereafter
filed the appeal where the maintenance was granted at Rs. 2000 per month as
interim maintenance. The respondent paid the amount of Rs. 2000 and
stopped from 29.7.2005. She had the also filed a suit for damages for
marrying her by cheating and fraud. She was the second wife and the
question arose as to second wife is entitled to maintenance. It is to be stated
that the respondent took ex- parte divorce from his wife on 29-10-1984 and
his marriage with the appellant was solemnized on 14-10-1988. In 1989 he
filed a divorce petition against the appellant. The first wife of the respondent
moved an application under Order 9, Rule 13 for setting aside the respondent
divorce decree. The issue was as to what was the position of the appellant
whether she was the wife under a valid marriage or void marriage and
entitlement to maintenance.

The High Court, while deciding this matter referred to the various
provisions of the Domestic Violence Act 2005 by way of analogy to decide
the matter of maintenance. The high court relied on maxims “no one can take
advantage of his own wrong” and “construction ut res magis veleat quam
pereat” and referring to the Domestic Violence Act 2005, Sections 2(a), 18,
20, 26, held that courts not only may take into consideration purpose for
which the same has been enacted but also the mischief it seeks to suppress
and where alternative constructions are possible the court must give effect to
that which will be responsible for smooth working of the system for which

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the statute has been enacted rather than the one which would put hindrances
in its way. The appellant was considered as legally wedded wife and the
maintenance claim of Rs. 2000 is revived.

5.4.3. Maya Devi W/o Hari Kishan Bhendwal v. the State of NCT, Delhi
and Jai Shree D/o Jyoti Swaroop Bharti 18 :-

Provisions involved

1. Protection of Women from Domestic Violence Act, 2005 – Section 18,

25, 29.

2. Criminal Procedure Code, 1974- Section 482.

3. Constitution of India-Article 227.

The present petition is filed under Article 227 of the Constitution of

India read with Section 482 Cr. P.C. for quashing of the order dated 19th
September, 2007 passed by the Magistrate, Delhi in the domestic violence
application that the complainant be not dispossessed from shared household
at matrimonial house, F 304, Mansarover Garden, Ramesh Nagar, New
Delhi. The order be complied with by the protection Officer with the
assistance of SHO concerned. The report in this behalf be filed before the
court on or before 9-10-2007 at 1P.M. Copy of order be given “dasti” for
compliance.

The High Court held that the order passed by the Magistrate under
Section 18 shall be in force till the aggrieved person applies for discharge and
such provision is covered by Section 25 of the Act 2005. There is further
provision is covered by Section 29 of the Act 2005. There is further provision
of Appeal under Section 29 of the Act 2005. The High Court referred to 1952

18
. 16 ILR 2007 Del 1568

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SCR 218 which says that, “where a right or liability is created by a statute
which gives a special remedy for enforcing it, the remedy provided by that
statute only must be availed of”. This Act, 2005 has provision of “duration
and alteration of orders (Section 25) and Appeal (Section29) specifically
provided by way of a remedy if the person is aggrieved by the order and held
that under these circumstances the present petition is misconceived and is not
maintainable and the same is hereby dismissed with costs of Rs. 2500.

5.4.4. C.V.S. Ravi v. Ratna Sailaja 19 :-

Provisions involved

1. Protection of Women from Domestic Violence Act, 2005- Section 18,

19, 20, 21, 22.

2. Criminal procedure Code, 1974- Section 125.

3. Family Courts Act, 1984-Sections 7, 8.

The issue before the court was that one petition is pending before the
family court and the other before the Magistrate. Both can be heard together
instead of by two different courts. Learned council referred to Section 26 of
the Act, 2005 that any relief available under Sections 18, 19, 20, 21 and 22
may also be sought in any legal proceedings before a civil court, Family court
or a criminal court. As per section 28 of the Act all proceedings under
Section 12, 18, 19, 20, 21, 22 and 23 and offences under Section 31 shall be
governed by the provisions of Cr. P.C. and as per Section 28(2) of the Act the
Court can lay down its own procedure and also proceedings under Section
125 Cr. P.C. and proceedings under Section 18, 19, 20 and 22 of the
Domestic Violence Act are summary proceedings. So there is no bar for
transferring the proceedings pending before the Magistrate to the Family
19
. 2008 – TLMAD-0-2414

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Court. The learned advocate contended that proceedings under Section 18,
19, 20 and 22 under the Domestic Violence Act, 2005 and proceedings under
Section 125 are different in nature and there is no provision either in the
Domestic Violence Act, 2005 or Criminal Procedure Code for such transfer.
The High Court referred to various cases and held that the transfer sought by
the petitioner cannot be ordered.

5.4.5. Sarbjyot Kaur Saluja v. Rajinder Singh Salauja20 :-

Provision involved

1. Protection of women from Domestic Violence Act, 2005 – Section 18,

19, 20, 21 and 22.

2. Hindu Adoption and Maintenance Act, 1956 – Section 18, 20, 23.

3. Civil Procedure Code 1908, Order 6, Rule 15 & 17, Order 33 Rules 1,
2, 5.

It is a case of amendment of plaint. The plaintiff filed the suit for

permanent injunction and maintenance against the defendants. Plaintiff
sought amendment of plaint to incorporate prayer clause for relief of
maintenance Rs. 1.5 lakh per month and averments. The plaintiff
consequently also seeks to amend the title so as to incorporate the provision
of “the Protection of Women from Domestic Violence Act, 2005 which has
been invoked on 17th October, 2006 as the court is competent to exercise its
powers conferred under Sections 18, 19, 20, 21 and 22 of the Protection of
Women from Domestic Violence Act, 2005 and also some other
amendments. Plaintiff have contended that the application is bonafide and
amendment proposed to the plaint by the plaintiffs are necessary for
determination of real controversies between the parties. The application is
20
. (2009) 159 DLT 629: (2009) 155 PLR 2

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contested by the defendants contending that application is incompetent,

wanting in bona fide and causes prejudice to the non-application as the
amendments sought are unjust and unnecessary and supplies a cause of action
which was missing and further contended that there is non-compliance of the
provisions of Order 33, Rule 5.

It is held that the power to allow the amendment is wide and can be
exercised at any stage of the proceedings in the interest of justice on the basis
of guidelines laid down in various precedents. The amendments sought are
such that no prejudice would be caused to the defendants. The amendments
sought are allowed.

5.5. Case Laws on Section 19 :-

5.5.1. P. Chandera Sekhra Pillai v. Valsala Chandran21 :-

Provisions involved

1. Criminal Procedure Code, 1974- Section 482.

2. Protection of Women from Domestic Violence Act, 2005 – Sections

19, 23, 29.

The petitioner in this petition has suffered an ex-parte interim order

under Section 23 of the Domestic Violence Act, 2005. The application was
filed by the wife under Section 19 of the Act, 2005. The learned Magistrate,
after considering the affidavit filed by the petitioner along with the
application under Section 12 of the Act, claiming relief under Section 19 of
the Act, came to the conclusion that ex-parte interim order is liable to be
passed in favour of the first respondent herein. Accordingly the order was
passed invoking the powers under Section 23 read with Section 19 allowing

21
. (2008) DMC 83: 2007 Cr LJ

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the first respondent and her children to reside in the house. The city Police
Commissioner was further directed to give necessary protection to the first
respondent for her peaceful residence in the home along with the children.

The petitioner, aggrieved by this order filed a petition invoking the

inherent powers of the High Court under Section 482 Cr. P.C. against the
impugned order passed under Section 23 read with Section 19 of the Act,
2005. The High Court held that such invocation is warranted under
compelling reasons of an exceptional variety but not when normally there is
availability of an efficacious alternative remedy is available in the statute
itself. Order under Section 23 is subject to Section 29 of the Act, 2005
(Appeal) and the petitioner could have availed that remedy. The petition is
dismissed as there are no justifying reasons to invoke the inherent powers of
the High Court under Section 482 Cr. P.C.

5.5.2. N. Nirmala v. Dr. Gandala Balakotaiah22 :-

Provision involved

1. Protection of women from Domestic Violence Act, 2005, Section 19.

2. Civil Procedure Code, 1908 – Order 39 and Section 151.

Section 19 has to be read along with Section 12 because it comes into

play when an application is made under Section 12 and an aggrieved person
or a Protection Officer or any person on behalf of the aggrieved person can
make an application to the Magistrate seeking relief and an order under the
Act. Section 19 lays down that while disposing of an application under sub-
section (1) of Section 12, the Magistrate can pass an order with respect to the
possession of the household. So, a sine qua non for an order under Section 19
is an application under Section 12 before the Magistrate and the Magistrate
22
. (2008) 3 ALD 486: (2008) 2 ALT 241 (AP)

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has to satisfy himself before passing an order under Section 19 that domestic
violence has taken place. Therefore, in a suit pending before the family
Court, no such relief could be sought as the requirements for issue of
injunction under Order 39 of Civil Procedure Code are altogether different
than the requirements under Section 19 of the Act and the law has provided
different fora for different remedies. The Revision Petition filed by the
Petitioner is bereft of any ground and is accordingly dismissed.

5.5.3. Raj Kumar Rampal Pande v. Sarita Raj Kumar Pande 23 :-

Husband was having undivided interest in house in question after death

of his father. Producing bogus document of sale of house by the mother and
making false statement that share certificate was issued by the society in
favour of the mother during course of hearing to defeat legitimate right, is not
considered by the court to defeat her right. It is a shared household wherein
wife lived with the husband in domestic relationship. Petition is dismissed
with cost at Rs. 25,000, Section 2(5), 19, 26 were discussed.

5.6. Case Laws on Section 20 :-

5.6.1. Mohamad Maqeenuddin Ahmed v. State of Andhra Pradesh 24 :-

Provision involved

1. Protection of Women from Domestic Violence Act, 2005 –Section 20,

22. Rule 6(1).

2. Criminal Procedure Code, 1974 –Section 482.

The criminal petition was filed under Section 482 Cr. P.C. to quash the
proceedings pending before the Additional Judicial Magistrate of First Class,

23
. AIR 2009 (NOC) 1013 (Bom)
24
. 2007 Cr LJ 3361 (AP)

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Nizamabad. An application was filed under Section 12 of the Domestic

Violence Act, 2005 read with Rule 6(1) of the Protection of Women from
Domestic Violence Rules, 2006. The learned Magistrate took cognizance of
the case and issued summons to the petitioners herein and the petitioners filed
this petition to quash the proceedings. There were many other proceedings
between the parties. In the present case the issue falls under Section 20 of the
Act, 2005 which speaks of monetary reliefs. Under Section 22 of the Act,
also compensation can be awarded. From the prayer portion of the petitioner,
it is revealed that the reliefs were sought against the 1st respondent/first
petitioner herein only. From the body of the petition also, no specific
allegations were made against the respondents 2 to 11/petitioners 2 to 11
herein except mentioning that at their instance the first petitioner was
demanding money and that she was not providing money for medical
expenses and disowned the liability being abetted by petitioners 2 to 10.
Since no relief is claimed against petitioners 2 to 11, it is unnecessary to
continue the proceedings against them and continuation of proceeding against
them amounts to abuse of process of law. So the petition is allowed in respect
of petitioners 2 to 11 and the petition of the first petitioner is dismissed.

5.6.2. M. Palani v. Meenakshi 25:-

Provisions involved

1. Protection of women against Domestic Violence Act, 2005 – Section

20, 26.

The present Revision is directed against the order of the II Additional

Family Court dated 6-11-2007 in I.A 2325 of 2007 in O.S. No 101 of 2007.
In the said proceedings, the respondent had taken out an application in I.A
No. 2325 of 2007 for maintenance of Rs. 10,000 per month for food, cloth,
25
. AIR 2008 Mad 162

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shelter and other basic necessities. The said application was filed under
Section 20 read with Section 26 of the Domestic Violence Act.

The learned judge directed the petitioner to pay a sum of Rs. 1000 per
month as maintenance to the respondent herein from the date of the petition
till the disposal of the suit. The said order is canvassed in this Revision. The
learned counsel for the petitioner contended that Firstly the respondent is not
entitled to maintenance as the petitioner and respondent never lived together
at any point of time. Secondly, Section 12 contemplates report from the
protection officers so as to enable the learned judge to pass an order for
maintenance. Thirdly, the respondent is not an aggrieved party and hence
cannot file an application for maintenance.

The learned counsel for the respondent contended that there is

relationship between the petitioner and the respondent. Secondly, the report
of the protection officer is needed if the application is filed before the
Magistrate and not before the family court.

The High Court held that looking to Section 2(a) (aggrieved person),
Section 2(f) (Domestic relationship), Section 2(q) (Respondent), it can be
said that there was a relationship and a shared household and as such the
petition is maintainable. Then the High Court referred to Section 26 which
speaks of relief in other suits and legal proceedings which clearly shows that
the civil court, Family Court or Criminal Court has got jurisdiction to grant
the relief. Even Proviso to Section 12 does not insist of protection officer’s
report and the expression used is, “any domestic incident report” which
shows report by the protection officer is not “sine qua non”. Considering the
above facts it is held that the learned II Additional Judge, Family Court has
rightly passed the order granting maintenance.

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5.6.3. Rajesh Kurre v. Safurabai 26 :-

It is held that the court is competent to award maintenance to aggrieved

person and child of aggrieved person in accordance with provisions of
Section 20 of the Act. Aggrieved person is not required to establish the case
in terms of Section 125 Cr. P.C.

5.6.4. Sonia Mann v. State27 :-

It is a case under Section 20 of the Protection of Women from

Domestic violence Act, 2005. By interim order for monetary relief
respondent was directed to pay Rs. 10,000 p.m. in favour of petitioner and
two minor sons. She was already drawing Rs. 4000 p.m. under Section 24 of
the Hindu Marriage Act, 1955 while passing the interim order the Magistrate
did not consider this aspect of alimony awarded under Section 24. Sessions
Judge modified the order directing that Rs. 10,000 awarded includes Rs.
4000.

Note.- Section 24 of the Hindu Marriage Act, 1955, Section 125 of the
Criminal Procedure Code, 1974, Section 18 of the Hindu Adoptions and
Maintenance Act, 1956 and Section 20 of the Protection to Women from
Domestic Violence Act, 2005, stand on different pedestals. But if an order is
passed in matter, it will be adjustable if there is already such order granted in
other matter. The person cannot enjoy the same order for maintenance
granted in two matters unless specifically stated so.

5.7. Case Laws on Section 23 :-

5.7.1. Sulochana V. Kuttapan28 :-

26
. (2009) 1 MPHT 37: AIR 2009 (NOC) 813 (Chh)
27
. 2010 (1) Crimes 38 (Del)

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Provisions involved

1. Protection of Women from Domestic Violence Act, 2005-Sections 23,

29

The High Court while discussing Section 23 has stated that there is
great responsibility on the Magistrate while considering grant of interim ex-
parte orders under Section 23 of the Act. The nature of the possible orders
under Section 18 to 22 and the interim orders that can be passed by
invocation such powers under Section 23 must instill in the mind of the
Magistrate the concomitant degree of care and caution which is necessary
before passing ex-parte interim orders under Section 23 read with Section 18
to 22. In cases where existence of matrimony is disputed etc. alert application
of mind will certainly be required before such ex-parte interim orders are
passed. The Magistrate must be conscious of the repercussions and
ramifications of such ex-parte interim orders which may be passed under
Section 23 of the Act.

5.7.2. Bagadaram v. State of Rajasthan29 :-

Provisions involved

1. Protection of Women against Domestic Violence Act, 2005- Sections

23, 29.

It is held that interim/ ex- parte order passed by the Magistrate under
Section 23 is appealable under Section 29. Revision petition against the said
order under Sections 397/401 of Criminal Procedure Code is not
maintainable.

5.8. Case Law on Section 24 :-

5.8.1. In K. E. Jose v. State of Kerala 30 :-

28
. 2007 Cr. LJ 2057 (Ker)
29
. (2008) Cr LJ(NOC) 1031 (Raj)

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It is said that Section 24 of the Act evidently intends to usher in a new

and different procedure and culture of furnishing copies of the orders passed
by the Court. In the light of Section 24 of the Act, the burden is certainly on
the Magistrate to ensure that the copy is furnished to the parties as well as
others specified in Section 24. The Magistrate must certainly ensure that the
copies are also prepared and are ready to be furnished to the persons
concerned including the adversary in the litigation before the order is
pronounced. That would be the only manner in which the mandate of Section
24 can be complied with in letter and spirit. Thus, there can be no doubt on
the obligation of the Magistrate to furnish copies to the parties concerned
when the orders are passed. The Magistrate must ensure that such copies are
furnished.

Note:- Refer Section 23(4) of the Hindu Marriage Act, 1955 which
says, “In every case where a marriage is dissolved by a decree of divorce, the
court passing the decree shall give a copy thereof free of cost to each of the
parties 31.

5.9. Case Law on Section 25 :-

5.9.1. In Amit Sundra v. Sheetal Khanna 32:-

The appellants has filed the present position under Article 227 of the
Constitution of India challenging the impugned order. The learned Magistrate
directed the present petitioners to allow the respondent to enter into the
shared household at Delhi and stay over there and to pay her maintenance. It
was an interim order. The High Court held that there are remedial provisions
of Sections 25 and 29 of the Act. It is not proper to approach the High Court
in view of remedy of appeal as also remedy of seeking modification,
30
. 2007 Cr LJ (NOC) 476 (Ker)
31
. Surjit Kaur v. Tarsem Singh, AIR 1978 P&H209
32
. (2008) 1 DMC 58:2008 Cr LJ 66 (Del)

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alteration or revocation of order under Section 25 of the Act. Order of stay is

liable to be vacated.

5.10. Case Laws on Section 29 :-

5.10.1. In Sulochana v. Kuttappan33 :-

The issue was whether Section 23 of the Act comes within the sweep
of Section 29 of the Act. The High Court held that going by the plain
language of Section 29 the expression “the order” must take within its sweep
all orders passed under Sections 18 to 23 and there is no reason to exclude,
going by language and semantics, an order passed under Section 23.

5.10.2. Maya Devi v. State of NCT Delhi 34 :-

In this the High Court held that when specific remedy by way of appeal
or by way of alteration, modification or revocation of any order has been
provided under the Act, proceedings under Section 482 Cr P.C. is not
maintainable.

5.10.3. Abhijit Bhikaseth Auti v State of Maharashtra 35 :-

In this case reference is made to Sections 12(1), 18, 19, 20, 21, 22,
23(2) it is held that appeal against order passed under Section 12(1) is
appealable under Section 29 of the Act. It is said that purely procedural
orders not determining rights or liabilities of the parties are not appealable.

5.11. Bad Law and Good Judge Policy :-

33
. 2007 Cr LJ 2057 (Ker)
34
. 2008 Cr. LJ (NOC) 256 (Del)
35
. 2009 Cr LJ 889: AIR 2009 (NOC) 808 (Bom)

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Sometimes in the History of judiciary in India and elsewhere the judge

interpret the law on many ground viz., social customs, relationship of parties,
legislative intend etc. For such act of judiciary the law is corrected
beforehand of new amendment or new legislation. The good judge who
interpret a particular fact and issue with the sorrowing factors. Every
Legislative drafting is not correct in full extend. Some drafting leaved the
people to raise an eyebrow for comments. Specially the legislation on
matrimonial issues requires many aspects of judicial interpretations. The
sensitive judge do not forget the cause and effects of matrimonial issues and
its impact on contemporary society.

The Supreme Court in case of Dastane v. Dastane36, in relation to the

above issues, held that the foundation of a sound marriage is tolerance,
adjustment and respecting one another. Tolerance of each other’s fault to a
certain bearable extent has to be inherent in every marriage. Petty quibbles
triffling difference should not be exaggerated and magnified to destroy what
is said to have been made in heaven. A too technical and hyper-sensitive
approach would be counter- productive to the institution of marriage. For
coming to the conclusion of cruelty, the judge must consider the impact of the
personality and conduct of one’s spouse in view of the other. All quarrels
must be weighed from that point of view in determining what constitutes
cruelty in each particular case, always keeping in view the physical and
mental conditions of the parties, their character and social status. The Courts
do not have to deal with ideal husbands and ideal wives. It has to deal with
particular man and woman before it. The ideal people or a mere ideal one will
probably have no occasion to go to matrimonial court.

36
. AIR 1975 SC 1534 reported in Indu Bala Toppo v. Francis Xavier Toppo, AIR 2002 Del 54

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On these aspects perhaps Supreme court was sensitized on this

ground. In case of Vinita Saxena v. Pankaj Pandit,37 held that each case
depends on his own facts and must be judged on its facts. There may be cases
where the conduct complained of itself is bad enough and per se is unlawful
or illegal. Then the impact or the injurious effect on the other spouse need not
be enquired into or considered. In such cases, the cruelty will be established
if the conduct itself is proved or admitted. The question whether the act
complained of was a cruel act, is to be determined from the whole facts and
the matrimonial relations between the parties. The general rule is of a special
value when the cruelty consists not of violent act but of injurious reproaches,
complaints, accusations or taunts. It may be mental such as indifference and
frigidity towards the wife, denial of a company to her, hatred and abhorrence
for wife or physical acts of violence and abstinence from sexual intercourse
without reasonable cause. It must be proved that the partner in the marriage
however mindless of the consequences, has behaved in a way which the
other spouse could not in the circumstances be called upon the endure, and
that the misconduct has caused injury to health or a reasonable apprehension
of such injury. There are two sides to be consider in a case of cruelty. From
the appellant’s side, ought this appellant to be called on to endure the
conduct? From the respondent’s side, was this conduct excusable?

The court has then to decide whether the sum total of the reprehensible
conduct was cruel. That depends on whether the cumulative conduct was
sufficiently serious to say that from a reasonable person’s point of view after
the consideration of any excuse which the respondent might have in the
circumstances, the conduct is such that the petition ought not to be called
upon to endure.

37
. (2006) 3 SCC 778

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The court further held that the concept of cruelty has varied from time
to time, from places to places and from individual to individual. The cruelty
alleged may largely depend upon the type of life the parties are accustomed
or their economic and social conditions, their culture and human values to
which they attach importance judged by the standard of modern civilization
in the background of culture heritage and traditions of our society, a young
and well educated woman is not expected to endure the harassment in
domestic life whether mental, physical, intentional or emotional. Her
sentiments have to be respected her ambition and aspirations taken into
account in making adjustment and her ambition and aspirations taken into
account in making adjustment and her basic needs, provided though
grievances arising from temperamental disharmony are irrelevant.

On the whole among the three organs of our socialistic county viz.
Legislature, Executive and Judiciary, the supreme authority is vested in the
Judiciary (i.e. brain of India) and Article 141 or our so called Constitution
which reads as the law declared by Supreme Court to be binding upon all
Courts, is the best instrument for the correction of law and proper use of it.
this Article also provides that the final authority vests in it.

Justice Binann of Supreme Court of America in case of Roth v. United

States,38 observed that the law is not an itself nor does it provide ends. It is
pre-eminently a means to serve what we think is right. The law is to serve?
To serve what? To serve in so far as law can properly do so, within the
realizations of man’s ends, ultimate and mediate.

In this context one may remember the wordings of Earl Warren, the
then Chief Justice of US Supreme Court Who once had said “our judge are
not monks or scientists, but participants in the living stream of our national

38
. 354 US 476

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life, steering the law between the dangers of rigidity on the one hand and of
formlessness on the other”.

Lord Denning once wrote39: “There is a clear and absolute line

between law and morals. Law is simply a series of commands issued by a
sovereign telling the people what to do or what not to do. Judges and
advocates are not concerned with the morality of the law, but only with the
interpretation of it and with its enforcement. This supposed division between
law on the one hand and morals on the other has been a great mistake”.

The equality, justice and conscience is the purposive approach in the

frame work of the constitutionalism. This is the source of great and good
judge, for dealing with cases in respect of rights.

In respect of judge and use of law aftermath of enactment, Lord

Denning once wrote40 and he reluctantly hold that we trust the judge and
corrective criticism made in good faith is the answer. He also pronounced: 41

“It is the right of every man, in parliament or out of it, in the press or
over the broadest, to make fair comment even outspoken comment, on matters
of public interest. Those who comment can deal faithfully with all that is done
in a court of justice. They can say that we are mistaken, and our decisions
erroneous, whether they are subject to appeal or not. All we should ask is
that those who criticize us will remember that, from the nature of office, we
cannot reply to their criticisms. We cannot enter into public controversy. Still
less into political controversy. We must rely on itself to be its own
vindication”.

39
. The Family Story : Law and Morals, p. 181
40
. What next in ‘the law : There remains, misuse of Power.
41
. Quentim Hogg. Case

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Therefore all the special legislations depend upon the judge concerned,
for its proper use and application. Sometimes the special legislations suffers
in the line of general legislations and it travels beyond its proper path. Hence
it is upto a judge to give importance to the legislative intent as well as the
justice to victim which can stand as deterrent effect to the preparing accused
and the society.



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CHAPTER-VI
Conclusion & Suggestions

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Chapter -VI

Conclusion & Suggestions

6.1. Can there be human rights without gender Justice1 :-

Women constitute half the world’s population and perform nearly 2/3rd
of its work. They receive 1/10th of the world’s income and less than 1/100th of
the world property. This is reflected in the 1980 UN report. Even in this
country, according to the 1991 census, women represent 48.1% of the
country’s population. In this situation, does justice for women not seem like a
mirage.

In his due process of Law – Lord Denning said in 1981:-

“A woman feels as keenly, thinks as clearly, as a man. She in her

sphere does work as useful as man does in his. She has as much right to
her freedom – to develop her personality to the full – as a man. When she
marries, she does not become the husband’s servant but his equal partner.
If his work is more important in life of the community, her’s is more
important in the life of the family. Neither can do without the other.
Neither is above the other or under the other. They are equals.” 2

However, the ground reality is that equality of opportunity or of status

for women is more in the books than in the mores of the community. She
continues to be an unequal partner – intolerably unequal and unfortunately
this fact holds good even in the year of grace 2002. A bare study or survey

1
. Presidential Address by Dr. Justice A.S. Anand, Former Chief Justice of India on Tuesday, the 10th
December, 2002 at India International Centre, New Delhi.
2
. Lord Denring, the Due Process of Law, pp 194-195. (Butterworths, London) 1981

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will bring out the hard reality that the status of women and their opportunity
for employment, their illiteracy and subjection are a negation of the
constitutional promise of equality – her basic human rights. The dignity of
woman leaves much to be desired. She is still bonded labourer, gang rape
victim, damsel for sale in weekly markets in the backward provinces or to
foreigners as bride for a price.

The Preamble to the Constitution of India promises to secure all its

citizens, Justice-Social, Economic and Political; Liberty of thought,
expression, belief, faith and worship; Equality of status and of opportunity;
and to promote among them all – Fraternity, assuring the dignity of the
individual and the unity of the Nation. The Constitution, guarantees equality
of opportunity and equal status to men and women. It directs that women
shall not only have equal rights and privileges with men but also that the state
shall make provisions – both general and special for the welfare of women.

Article 14 ensure “equality before law” and Article 15 “Prohibits any

discrimination”. There is also a specific provision in Article 15(3), which
empowers the state to make “any special provision for women and children”,
even in violation of the fundamental obligation of non-discrimination among
citizens, inter alia on ground of sex. The Constitution also imposes a
fundamental duty on every citizen through Article 51(A)(e) to renounce the
practices derogatory to the dignity of women. How many of us aware of this
Fundamental Duty? Not many, I suppose. We take pride in talking of our
Constitution making special provision in favour of women – yes, indeed such
provisions do exist – they were provided by the founding fathers, after great
deliberations. But the question is : Have the women been able to reap the
benefits provided for them under the Constitution of India? The answer
unfortunately is not encouraging. There is still a long way to go to achieve
the goals enshrined in the Constitution.

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Internationally also, the World Conference on Human Rights (1993) at

Vienna, which was one of the main turning points in women’s right declared
that human rights of women and of the girl child are inalienable, integral and
indivisible part of universal human rights. The Vienna Declaration
specifically condemned gender based violence and all forms of sexual
harassment and exploitation. The Conference concluded that :

“The human rights of women and of the girl-child are an

inalienable, integral and indivisible part of universal human rights. The
full and equal participation of women in political, civil, economic, social
and cultural life at the national, regional and international levels, and the
eradication of all forms of discrimination on ground of sex are priority
objectives of the international community… The world conference on
human rights urges governments, institutions, inter-governmental and
non-governmental organisations to intensify their efforts for the protection
and promotion of human rights of women and the girl-child.”

The process of gender justice, broadly speaking, covers rights of

women against exploitation and victimization. Today the fact is that women’s
exploitation is a reality and gender justice a fragile myth. Through law and
policy, women have indeed, over the years, secured for themselves many
entitlements, but so far they have not been able to defend themselves from
crimes committed against them or social prejudices. This negates the whole
premise of gender justice. Unless we recognise her right – her basic human
rights – gender justice would only be “lip-service” with no tangible results.
For a women having undergone a criminal assault, all material wealth and
status symbols are meaningless. In fact, the incidents of violence or crimes
against them are a total negation of their human rights in which gender justice
nosedives. Thus, wherever crimes are committed against women the same
should be viewed in the context of violation of her fundamental right under
Article 21 of the Constitution and not merely as a crime against the society.

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Fight for justice by females or cry for gender equality is not a fight
against men. It is a fight against traditions that have chained them – a fight
against attitude that are ingrained in the society – it is a fight against
proverbial Lakshman Rekha which is different for men and different for
women. Men must rise to the occasion. They must recognise and accept the
fact that women are equal partners in life. They are individuals who have
their own identity. Today, in the 21st century, we are still unable to boast of a
society where there is total gender equality or gender equity. All too often,
universal human rights are wrongly perceived as confined to civil and
political rights and not extending to economic and social rights, which may
be of more importance to women. Civil and political rights and economic and
social rights are integral and complementary parts of one coherent system of
global human rights. Women’s equality cannot be achieved through equal
opportunities due to unequal status of women in society, which exist. Human
rights are not protected unless there is gender justice. Talk of gender justice
remains like pious platitudes that like blunt axes are passed around by all and
sharpened by none.

Here it is apt to quote Krishna Iyer, J. :-

“The fight is not for woman’s status but for human worth. The
claim is not to end inequality of women but to restore universal justice.
The bid is not for loaves and fishes for the forsaken gender but for cosmic
harmony which never comes till woman comes.” 3

The message of international instruments such as the Convention on

the Elimination of All Forms of Discrimination Against Women, 1979
(CEDAW) and the Beijing Declaration which directs all State parties to take
appropriate measures to prevent discrimination of all forms against women
besides taking steps to protect the honour and dignity of women is loud and
3
. Iyer, V.R.K. Law and Life, Vikas Publishing House, New Delhi, 1979, p. 31

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clear. The international covenant on economic, social and cultural rights

contains several provisions that are particularly important for women.
Unfortunately, however, there has been no improvement during the last 2
decades. Though we have entered the new millennium, the status of the
women have not improved. The discrimination stems not so much from
legislative insufficiency as from the attitudinal bias of the society.
Contemporaneous legislation, laws, treaties and conventions have
unequivocally established equal rights for men and women as a global norm.
in spite of all this, discrimination continues. It can be attributed to the deep-
rooted social values in an essentially male dominated society.

Awakening of the collective consciousness is the need of the day.

Change of heart and attitude is what is needed. If man were to regain his
harmony with others and replace hatred, greed, selfishness and anger by
mutual love, trust and understanding and if women were to receive education
and become economically independent, the possibility of this pernicious
social evil dying a natural death may not remain a dream only. The
legislature, realizing the gravity of the situation has amended the laws and
provided for stringent punishments in such cases and even permitted the
raising of presumptions against an accused in cases of unnatural deaths of the
brides within the first seven years of their marriage. The Dowry Prohibition
Act was enacted in 1961 and has been amended from time to time, but piece
of social legislation, keeping in view the growing menace of the social evil,
also does not appear to have served much purpose as dowry seekers are
hardly brought to book and convictions recorded are rather few. Laws are not
enough to combat the evil. A wider social movement of educating women of
their rights, to conquer the menace, is what is needed more particularly in
rural areas where women are still largely uneducated and less aware of their
rights and fall an easy prey to their exploitation. The role of courts, under the

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circumstances assumes greater importance and it is expected that the courts

would deal with such cases in a more realistic manner. A socially sensitised
judge, in my opinion, is a better statutory armour in cases of crime against
women than long clauses of penal provisions, containing complex exceptions
and provisos.

Is it not ironical that when Indian mythology place women on a very

high pedestal and they are worshipped and honoured – Goddess of Learning
is Saraswati; of wealth Laxmi; of power Parvati – we adopt double standards
insofar as her guaranteed rights are concerned. There has been over the
decades an alarming decline in moral values all around and that today is a
great challenge which we face particularly in our country. In the name of
progress and advancement, we are losing out on our moral values. It is rather
sad that while we keep celebrating women’s rights in all spheres, we show no
concern for her honour and her dignity. It is a sorry reflection on the attitude
of indifference of the society.

It is an irony that while we are celebrating women’s rights in all

spheres, we show little or no concern for her honour. It is a sad reflection on
the attitude of indifference of the society towards the violation of human
dignity of the victims of sex crimes. We must remember that a rapist not only
violates the victim’s privacy and personal integrity, but inevitably causes
serious psychological as well as physical harm in the process. Rape is not
merely a physical assault – it is often destructive of the whole personality of
the victim. A murderer destroys the physical body of his victim, a rapist
degrades the very soul of the helpless female.

Domestic violence in all its forms has increasingly over the last tow
decades been recognized nationally and internationally as a serious problem –

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traditionally it has been ignored or condoned, because it occurs between close

relations in the privacy of their homes.

‘Domestic violence’ is a serious matter but is not given any

importance. Domestic violence does not only mean harassment or cruelty at
the hands of the husband or the in-law – it includes offence life incest;
mutilation of private organs; rape, abortion of female foetus : molestation,
unnatural sex, assault or battery and the like. The Penal Code does not deal
with such acts. A clear legislation is the need of the hour.

Whenever crime is committed against women and that too a violent

crime, it sends shock waves to the society but those shock waves burst like
bubbles in a very short time. The society must change its attitude.

Flight for justice by females or cry for gender equality is not a fight
against men. It is a fight against traditions that have chained them – a fight
against attitude that are ingrained in the society – it is a fight against
proverbial Lakshman Rekha which is different for men and different for
women. Men must rise to the occasion. They must recognise and accept the
fact that women are equal partners in life. They are individuals who have
their own identity.

Primarily, it is for the men folk to bring about a change. Every effort
must be made to ensure that a girl child is treated as an equal important
member of the family. We must instill confidence in women to change their
image themselves. Since, it is folk men who have glamourised the role of
women, change must emanate from them. Both men and women will have to
contribute to achieve these objectives.

The fight for justice by females or cry for gender equality should not
be treated as if it is a fight against men. It is a fight against traditions that

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have chained them a fight against attitude that are ingrained in the society it is
a fight against proverbial Lakshman Rekha which is different for men and
different for women. Therefore, men must rise to the occasion. They must
recognise and accept the fact that women are equal partners in life. They are
individuals who have their own identity. Over the centuries of human
civilization, clear-cut gender roles have emerged, based on the stereotype
conceptions of feminine and masculine characteristics. Society needs to
change its attitude. It is high time that Human Rights of Women are given
proper priority. 4

Primarily, it is for the men folk to bring about a change and I hope it
would happen sooner than later. I wish to recall a short piece which I read
years ago : it is

I am the women who holds up the sky.

The rainbow runes through my eyes.

The sun makes a path to may womb.

My thoughts are in the shape of clouds.

But my words are yet to come.

Let her speak.

Let us wake up and hear words.5

6.2. Consequences of Domestic Violence :-

Domestic violence can happen to anyone regardless of race, age,

sexual orientation, religion, or gender. Domestic violence affects people all
socio-economic backgrounds and education levels. Domestic violence occurs
in both heterosexual and same sex relationships and can happen to intimate

4
. Dr. Justice A.S. Anand at Bodhraj attorney memorial occasion at New Delhi on 2nd December, 2000.
5

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partners who are married, living together, or dating. Domestic violence not
only affects those who are abused, but also has a substantial effect on family
members, friends, co-workers, other witnesses, and the community at large.
Children, who grow up witnessing domestic violence, are among those
seriously affected by this crime. Frequent exposure to violence in the home
not only predisposes children to numerous social and physical problems, but
also teaches them that violence is a normal way of life; therefore, increasing
their risk of becoming society’s next generation of victims and abusers.
Witnessing domestic violence is abusive to children. children in homes where
domestic violence occurs are physically abused or seriously neglected at a
rate 1500 times greater than the national average in the general population.
Children don’t have to be physically or verbally abused to be hurt by
domestic violence. Hearing or seeing the abuse of one parent by the other
takes a huge toll on kids and they may :

(1) Develop physical and/or mental problems that can last a life time;

(2) Grow up believing violence is a normal part of family life;

(3) Be more likely to be abusive as adults, if they are males; and more
passive and withdrawn, if they are females;

(4) Live in daily fear of what to expect at home. Their lives may be filled
with confusion, chaos, anger and tension that can lead to lifelong fear
and inability to trust others; and

(5) Be isolated by an abusive parent who shuts off the family from outside
help or support.

Various researchers have proved that witnessing domestic violence can

cause long term effects on children. Nair (1997) and Sunny (2003) reported
that children who witness domestic violence have more physical and mental

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problems and become more likely to be abusive as adults. Findings of Jaya

and Narasimhan’s study (2003) showed that from children exposed to
violence, 7 per cent wanted to get rid of their parents and 4 per cent wanted to
run away from the family because they were frightened to the inconsisted
characteristics of the parents, felt low and rejected due to their parents
violence. Consequences of domestic violence vary with the sex of the child.

Domestic violence against women has been linked to many serious

health problems both immediate and long-term. These include injuries,
sometimes leading to death or disability, a variety of chronic physical
conditions, reproductive health problems, mental health disorders including
suicide and unhealthy behaviour such as drug abuse. The consequences of
violence on the health of women can be broadly categorized in to followings :

6.2.1. Physical Consequences :-

(1) It ranges from minor cuts to bruises and welts to disability and
sometimes deaths;

(2) Apart from injury, it leads to irritable bowel syndrome, gastrointestinal

disorders and chronic pain; and

(3) These health consequences become complex when women fail to

access timely health care, due to various reasons.

6.2.2. Psychological and Emotional Consequences :-

(1) Under this the consequences are far higher than physical, as it erodes
the self-esteem leading to mental problems;

(2) Physical abuse also leads to emotional disorders, further leading to

suicide and self harm behaviour;

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(3) Depression and anxiety is the most common mental health problem
experienced by women, who are facing violence; and

(4) Violence also leads to alcohol, drug abuse and smoking.

6.2.3. Sexual and Reproductive Consequences :-

(1) The most common consequences of this type of violence on women

health is an unwanted pregnancy and pregnancy related complications
leading to maternal mortality and morbidity;

(2) Physical injury on abdomen leads to rupture leading to infertility and

infections;

(3) Gynaecological problems in the form of irregular vaginal bleeding

chronic pelvic pain, painful menstruation etc.; and

(4) Women who experience sexual abuse are more likely to suffer from
Sexually Transmitted Infections including HIV/AIDS.

6.3. Intervention Strategies and Recommendations :-

(1) Economic independence of women is of paramount importance for

their emancipation. Along with economic independence, equal
emphasis should be laid on the total development of women in order to
stop violence against them.

(2) Measures like secondary schooling, autonomy, in terms of access and

control of resources, and delayed marriages can play an important role
in decreasing women’s sense of powerlessness, and in protecting them
from marital violence.

(3) Education, since it is a very strong agency of planned social change,

can accelerate the process of change in attitudes and thereby in

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behaviours of males towards females. Formal and informal education

along with the frequent appeals on non objectification and non
commercialization of women in mass media can play a very important
role in decreasing the violence against women in society. Here one
thing has to be keep in mind that our traditions are very deep-rooted, a
miraculous overnight change cannot be expected, considering
especially the huge population size and its higher proportion residing
in the rural interiors. Therefore, it will take a very long time before the
total transformation of attitudes take place in the society, but still we
can proceed towards it by using all means of educating people both
intensively and extensively.

(4) The perceptions of youth regarding marriages, women’s status and

roles in the family need to be revised and changed. Young boys and
girls need to develop skills to strengthen marriage and family life.
Young should learn to assert themselves in their families of origin and
matrimony. They should be empowered to take firm decision in
relation to the selection of marriage partners, type of wedding, refusal
to give dowry, number of children, type of contraceptives and other
familial and non-familial matters. Men too need to realize the dignity
of women and to appreciate their contribution in various fields. Each
and every adolescent girl student should be made aware of the essential
ethics of conjugal life and cohabitation. Family life education must be
taught in schools to both boys and girls.

(5) In order to bridge the gap between legislations and their

implementations, a multi-sectoral approach is needed that tackles
various levels concurrently. Improving the legal and institutional
framework for the protection of women and girls is crucial to
preventing and combating gender-based violence effectively.

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(6) NGOs play an important role in counselling and assisting victims of

violence and also raising awareness regarding domestic violence. The
vigorous lobbying of NGOs is needed for the policy advocacy.

(7) Besides reducing gender-based violence, sustainable poverty reduction

is only possible if systematic improvements are made granting women
access to education and health care and control over economic
resources. This is also prerequisite for equal say in social and
economic decision making process.

(8) Domestic violence needs a coordinated and systematic response from

the justice system. While Section 498A has been one of the most
significant criminal law reforms protecting women’s rights, this reform
is not enough. Therefore, stepping of measures for better policing is
imperative to have a civil law which addresses domestic violence. We
need to look towards a coordinated legal approach to protect women
facing domestic violence.

(9) Fundamental social change that eliminates women’s subordinate status

may bring an end to domestic violence. The changes needed include
eliminating laws that discriminate against women and children,
promoting women in leadership and decision making processes,
improving access and sense of entitlement to education, an increasing
women’s access to economic resources, health information and other
rights of women.

(10) There is need to upgrade skills of people working in different

organizations. Strengthening capacity of personnel of government and
non-government organizations addressing the issue of domestic
violence against women is the need of hour. Training and professional

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development is essential for professionals who come into contract with

women subjected to violence.

(11) Building a constituent base is an important step in generating public

support for addressing gender-based violence. This responsibility lies
with civil societies on one hand, the state agencies on the other.
However, women’s organizations should be the facilitators in this
process. Community watch groups should be created and mobilization
of local government officials, legal advisors and community volunteers
should be ensured for reducing domestic violence against women.

(12) Family reconciliation is clearly a commonly desired end sought by

most community intervention strategies and this is a telling and
significant feature of the social response to violence against women in
India. Proactive or holistic efforts to address domestic violence through
community development schemes, women self help collective, efforts
to raise public consciousness and to empower women economically
and politically are important.

(13) Public awareness programmes that are carefully designed and

coherently oriented around economic and political initiatives should
include gender sensitization components. In order to accomplish this,
networks between organizations, between activists, and between state
officers need to be strengthened.

(14) Creation of crisis referral services is also needed. The local help line or
crisis referral services can take calls from women or family members
or concerned neighbors regarding a given case or incident, or an
enquiry about legal medical or psychological services.

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(15) Prevention domestic violence ultimately depends upon changing the

norms of society regarding violence as a means of conflict resolution
and regarding traditional attitudes about gender. To achieve this, the
concept of gender and human rights must be introduced in the colleges
and schools, universities, professional colleges and the training
Settings.

(16) Special courts must be setup for cases of violence against women and
children with up to date technological support like video graphing of
statement of rape and child abuse victims mobile courts should also be
introduced as an effective strategy for reaching out to more and more
victims in the remote area.

(17) A massive awareness campaign involving the community, religious

leaders, women’s organizations, civil societies, NGOs and other
opinion makers is necessary to counter the present trend of domestic
violence against women.

(18) The central and State Governments should conduct regular

programmes of law enforcement officers, judges and other court
personnel and prosecutors to identify and respond more effectively to
the cases of domestic violence against women.

(19) The government should encourage developing and supporting projects

to implement community driven initiatives to address the needs of the
victims of domestic violence the role of NGOs and civil societies may
be strengthened for initiating community based approaches to address
the issue of domestic violence against women.

(20) Changes in patriarchal value system of our society through education

awareness and empowerment in all spheres need to be emphasized.

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This can be possible if traditional attitudes believes and values are

replaced by progressive, objective scientific orientation and human
values.

(21) Women must be made aware about legislations, legal provisions rights
and entitlements while equal social rights of women in a family and
community level is suggested. State must actively intervene to project
women’s social, political, economic and cultural rights and withdraw
restrictive legal and administrative provisions, which tend to weaken
their rights in practice.

(22) The consumption pattern and consumption habit also have a significant
impact on the domestic violence which also interwoven with the other
threads like types of houses, house condition, ethnic composition,
propensity to consume etc.

(23) There has been a significant impact of Domestic violence on the

Income generation from the forest products. As a result their livelihood
has suffers a lot due to high intensity of domestic violence and
strengthened the vicious circle of poverty in the study area. It is also
recommended that the long-term upward occupational-shifts are
required in the study area through Government Intervention and
enhancing income generating activities or sustainable livelihood and
forest conservation activities.

(24) The short-term measures related to resolving domestic violence should

be given priority at the family level. Some of the social forces like
elders of the family may work as counsellor for coping up the low,
medium and high intensity of domestic violence.

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(25) The non-conducive environment as created by domestic violence at

family level compels to run in the clutches of distortion which lead to
negative growth rate by swallowing the fruits of sustainable
development of livelihood.

(26) To over come from the domestic violence the cost of violence is very
high which includes not only tangibles but intangibles cost too and lead
the economic unsustainability of the households and family. Thus the
domestic violence must be cured at the initial stage before it converts
in volcanoes.

(27) In order to eradicate physical and sexual violence, a long-term

commitment and strategies involving all sections of society is required.
Safe motherhood programmes may be organized which are sensitive
and responsive to the conditions and needs of battered women during
pregnancy and during post-partum period. There should be provisions
for medical and psychological services including provisions of
counselling for severely injured women.

(28) Existing preventive and supporting services and programme

interventions also need to be expanded for the victims of domestic
violence while attempts should be made to strengthen women’s
economic capacities by improving women’s access and control over
income and assets.

(29) For creating awareness level it is recommended that training, and

extension programmes need be designed in tune with the region wise
priority. The syllabus must be designed for the school, college and at
the university level to curb and minimize the effects of domestic
violence.

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(30) The law implementing agencies and authorities should be sensitized

how to deal with the problems of violence against women and the
courts established under the Act should be strengthened with adequate
manpower, judicial magistrates and machinery.

(31) Focus must be placed on the appointment of Protection Officers. All

Protection Officers should be appropriately qualified, trained on the
law and appointments must be made on a full time basis. The role of
the Protection Officer must be understood as being akin to ‘Outreach
officers’ of the court. Their duty is to facilitate access to courts. They
also are part of the infrastructure of the court in as much as they assist
courts in fact-findings and in the implementation of court orders.

(32) The registration of service providers must be commenced in

earnestness as not only with women be able to access them better, but
because the Protection Officer will be able to rely on them for
guidance. In all States there are women’s rights. Such organizations
shall play a valuable role in supporting and guiding Protestation
Officers in the discharge of their Duties. It is however, clarified that
only those private service providers who Volunteer should be
registered.

(33) There is the need to identify qualified counsellors, particularly keeping

in mind the high rates of referrals to counseling ordered by the
Magistrates. Counsellors may be identified from service providers
providing such services.

(34) There is need to build a multi-agency response between the Protection

Officers, Police, legal Services Authorities, service providers,
counselors etc. to aid women facing domestic violence. This response

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requires coordination amongst the different departments of the

government as well as partnerships with civil society organization.

(35) With regards to the fact that the child is disadvantaged in matters of
access to court and it was never the intention 12 matters in exclude
children from the ambi of the law it is recommended that the definition
of ‘aggrieved person’ be amended include children with its ambit.

(36) Finally, none of the provisions of the law should be interpreted to deny
women access to court directed rule’s Hence, an amendment should be
affected to the provision Section 12(1) clarify that neither a DIR nor a
home study report is mandatory before passing any order under the
Act. Whether or not they are required is a matter of judicial discretion
and may be called for by the judge.

(37) Supreme Court of India and the High Courts may issue guidelines as
protocols for dealing with all procedural and substantive issue
including the manner and method of conducting hearings on
application filed under Section 12 and trials under Section 31.

6.4. Required remedial actions :-

1. There should be a change in the socialization process. Family is the

cradle of violence. It is the ‘gender lable’ which is attached to a child at
birth which brings a whole range of social apparatus with it viz. names,
clothes, toys, belief, behaviour and values. The male and female should
be brought up in a similar manner only then the attitude of men will
change towards women in further.

2. Women is respond for her own victimization. ‘Learned helplessness’ is

found among women. She should change her thinking that ‘women
need guardians’ or the concept of “pativratadharam” because such

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thinking becomes a safety measure for the men. Illiterate and educated
women are more or less the same as illiteracy prevails in the rural areas
and orthodoxy in the urban. Even if she is beaten on Sunday, she keeps
fast on Monday for the longevity of her husband.

3. The status of economically independent women has not changed

drastically. They face the crisis of ‘role conflict’. There are only a few
exceptions where the couple has worked it out between themselves to
how they will share the chores at home. In most of the cases the
woman still manages the household single handedly and the man
relaxes once he returns home. Household work is accorded very little
prestige. A house wife should never perceive herself as a subordinate a
person as she performs the important role of bringing up the children
and the home.

4. Men are not the only one who are violent against women. Women are
also violent against women. It is the women (mother-in-law) who
started violence against daughter-in-law. There are different ways of
seeing a daughter and daughter-in-law.

The parents of the girl should also be blamed for taking heavy debts or
for selling their property to meet and demands of the bridegrooms parents.
There should be awareness among the girls and they should also realize that
divorce is better than marriage which is based on money because often it is
seen that the girls suffer in silence for dowry violence against her.

5. Media which has reinforced the negative image of the women can play
a crucial role to bring about social change. The government media T.V.
and radio should take up this issue serious and educate women
regarding their legal rights as well as the alternatives that are open to
them programmes on the changing status of women will make a

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positive contribution in changing general social level attitude towards

women. They can also be powerful organs to disseminate information
regarding women’s rights, developmental programmes and shelter for
women in distress.

The media propagates a discriminate and oppressible attitude

towards women which should be discouraged. The display of women
as ‘sexual objects’ in the advertisement should be banned. All the mass
media conveys that women’s position is only in the home and for the
home, while men are portrayed as successful professionals. All this
legitimize masculine dominance, meanwhile pornography presents a
package deal on women as sex objects and the natural possessions of
men which further promotes violence against women.

The media which is controlled by and large by men has been

responsible for a widespread misrepresentation of feminists as ‘men-
hating and ‘family destroying women. This false propaganda is
reinforced by other forces and groups that see the emancipation and
liberation of women as a threat. The women organizations have come
up but those who try to do something in the field are labelled as
‘homeless’ in the urban areas and they are looked with ‘suspicion’ in
rural areas. Therefore, the whole problem of status of woman and
violence against her has to be viewed and considered both by the
woman and man together. More and more ‘Men Organization’ should
come up for the cause of women. Women should forget their
helplessness and men should shed their inhibitions. This is the need of
the day.

With a view to convert the equality of women from de jure to de facto,

educating the female would play an important role. So long as there is

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disparity between the male and female in education levels, the difference
between the position of men and women would continue to exist. It is sad but
unfortunately true that a woman has, even in her own home, been given a
rather subordinate role to play. Her major concern is expected to be catering
to the comforts of the family as a dutiful daughter, loving mother, obedient
daughter-in-law and faithful submissive wife. She is perhaps everything
except a human being on par with her counterpart- the man. She has same
feelings, aspirations, emotions, sense or satisfaction and frustration as her
counterpart, but the society ahs made her dependant either on father, mother,
husband or son. To usher in gender equity it must change. The attitude of the
society must change. A wider social movement of educating women of their
rights, to conquer the menace, is what is needed, more particularly in rural
areas where women are still largely uneducated and less aware of their rights
and fall an easy prey to their exploitation. The role of courts under the
circumstances assumes greater importance and it is expected that the courts
would deal with such cases in a more realistic manner.

For the emancipation for women in every filed, economic

independence is of paramount importance. Along with economic
independence, equal emphasis must also be laid on the total development of
women-creating awareness among them about their rights and responsibilities
the recognition of their vital role and the work they do at home. If necessary,
a new social system must evolve. The society must respond and change its
attitude. Major surgery is required and not merely cosmetic changes. Once
there is emphasis on total development of women in all respects,
empowerment would follow. Awakening of the collective consciousness is
the need of the day. Change of heart and attitude is what is needed.

In Kundula Bala Subrabmanyam v. State of Andhra Pradesh, 1993 (2)

SCC 684, a case of bride burning, I said –

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Of late there has been an alarming increase in cases, relating to

harassment, torture, abetted suicides and dowry deaths of young innocent
brides. This growing cult of violence and exploitation of the young brides,
though keeps on sending shock waves to the civilised society whenever it
happens, continues unabated. There is a constant erosion of the basic human
values of tolerance and the spirit of “live and let live”. Lack of education and
economic dependence of women have encouraged the greedy perpetrators of
the crime. It is more disturbing and sad that in most of such reported cases it
is the women who plays a pivotal role in this crime against the younger
woman, as in this case, with the husband either acting as a mute spectator or
even an active participant in the crime, in utter disregard of his matrimonial
obligations. In many cases, it has been noticed that the husband, even after
marriage, continues to be “Mamma’s baby’ and the umbilical cord appears
not to have been cut even at that stage.

It is assumed in the light of modern legal notions that base socio-

cultural and religious patterns that have been the major inspiration for the
high degree of domestic violence in our society, would become a thing of
past in the new millennium because –

“The stark reality is that the future of development and society lies in the future of
women equally with men. Never has it been more apparent that women’s issue can not be
compartmentalized and isolated as secondary issues in development.”
– Executive Secretary,
ESCAP, 1984



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BIBLIOGRAPHY

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BIBLIOGRAPHY

1. Primary Sources

(A) Documents /Acts/Codes :-

1. Charter Of United Nations, 1945

2. Constitution of India.

3. Convention against torture and other cruel inhuman or degrading

treatment or punishment, 1984.

4. Convention on the elimination of all forms of discrimination against

women, 1979.

5. Dissolution of Muslim Marriage Act (1939).

6. Dowry Prohibition Act, 1961.

7. Indian Divorce Act.

8. Indian Evidence Act, 1872.

9. Indian Penal Code, 1860.

10. International Covenant of Economic, Social and Cultural rights, 1966.

11. International Covenant On Civil And Political Rights, 1966

12. Parsi Marriage and Divorce Act.

13. Special Marriage Act.

14. Special Rapporteur On Violence Against Women Warns Of Threats To

Gains on Women’s Human Rights, 2004

15. The Commission of Sati Prevention Act, 1987.

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16. The Hindu Marriage Act, 1955.

17. The Pre-Conception and Pre-natal Diagnostic Techniques (Prohibition

of Sex Selection) Act, 1994.

18. The Protection of women from Domestic Violence Act, 2005.

19. United Nations World Conference On Human Rights, 1993

20. Universal Declaration of Human Rights, 1948

(B) Books

1. Chief Justice Anand A.S Justice for women Universal Law Publishing
co.

2. Das, P.K., Protection of Women from Domestic Violence, 2009.

3. Dr. Bharti Dalbir, women and Law A.PH publishing corporation.

4. Dutt, M.N., The Markandaya Puran 1896.

5. Gour, Singh Hari, Penal Law of India Law publishers (India).

6. Jain M.P., India Constitution Law wadhwa and company Nagpur

Administrative office.

7. Jaising, Indira (ed.) Law of Domestic Violence, 2009.

8. Kane, P.V., History of Dharamshastras.

9. Misra, Preeti, Domestic Violence Against Women, 2007.

10. Mukherjee Roma, forward by Prof. Qureshi, M.A, women and Law
free legal in India Deep & Deep Publication.

11. Saxena Shobha crimes against women and protective law, Deep &
Deep publication.

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12. Shrivastawa Sushma, women and crime commonwealth publishes.

13. Singh, A.K. Domestic Violence against women in India.

14. Sood, Sushma, Violence Against Women, 1990.

(C) Journals/Periodicals

1. All India Cases

2. All India Reporter

3. Allahabad Law Journal

4. Indian Bar Review

5. Indian Law Journal

6. Law Review

7. Supreme Court Cases

2. Secondary Sources

(A) Dictionaries

1. Chambers Hindi English Dictionary.

2. Oxford Dictionary of Law.

3. Oxford English Dictionary.

4. Paradise oxford Law Dictionary.

5. Sachdeva’s Legal Glossary.

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(B) Libraries

1. Gautam Buddha Library, BBAU, Lucknow.

2. Library of Dr. R M L University, Lucknow.

(C) Magazines

1. Femina

2. Front line

3. India today

4. Out look

5. Yojna

6. Pratiyogita Darpan

7. Chronicle

(D) News Papers

1. The Times of India, (English Daily).

2. Hindustan time, (English Daily).

3. The Hindu (English Daily).

4. Hindustan, (Hindi Daily).

(E) Internet Website used

1. www.ncrb.nic.in

2. www.nhrc.ac.in

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