Laws on protection of women from domestic violence 97881871417212

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COMMENTARY

1. Interpretation of preamble.—It is incorporated Phrases & Interpretation" contained in this book.

in

"Words,

2. Literal meaning of preamble.—The expression preamble is defined as—'a preliminary statement, especially the introduction to a formal document that serves to explain its purpose"—"a preliminary or interlocutory statement, etc., attached to a statute setting forth its purpose"—"make a preliminary introduction, usually to a formal document"—"furnish with a preface or introduction."

A Maxwell has stated—" The preamble of a statute has been said to be a good means of finding out its meaning, and, as it were a key to the understanding of it and as it usually states or professes to state, the general object and intention in passing the enactment, it may legitimately be consulted to solve any ambiguity, or to fix the meaning of the words which may have more than one, or to keep the effect of the Act within its real scope, whenever the enacting part is in any of these respects open to mind". But either the preamble nor the supposed object of the Act can control the expressed language of the statute.

In a 1980 UN Report, it was the world’s population, perform receive one-tenth of the world’s the world’s income and less property". Women comprise 66%

reported that "Women constitute half of nearly Two-Thirds of "it’s work hours, income and less than one hundredth of than once hundredth of the world's of the world’s illiterates and 70% of the

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THE PROTECTION OF WOMEN FROM DOMESTIC VIOLENCE ACT, 2005

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world’s poor. Violence against women clubbed with these inequalities (or)

deprivations is total denial of her human rights. Time and again the Supreme Court of India has been extending the ambit of Article "21" of the Constitution of India and holding that mere existence is not the Right to live. It is the right to live with dignity. Thus, wherever Crimes are committed against Women the same should be in the context of violation of her. Right under Article "21" of the Constitution and not merely as a Crimes are committed against Women the same should be in the context of violation of her Right under Article "21" of the Constitution and not merely as a Crime against the society. Domestic violence is undoubtedly a human rights issue and serious deterrent to development. The Vienna Accord of 1994 Declaration and the Platform for Action (1995) have acknowledged this. The united Nations Committee on convention on Elimination of All Forms of Discrimination Against Women (CEDAW) in it’s General Recommendation No. XII (1989) has 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 put has remained iargely invisible in the public domain. Presently. where a

woman

is subjected to cruelty by her husband or his relatives, it is an

offence under Section 498A of IPC. The address this phenomenon in its entirety.

Civil Law

does

not however

Under Articles 14, 15 and 21 of this Constitution to provide for a remedy under the Civil Law which is intended to protect the woman from being victims of domestic violence and to prevent the occurrence of domestic violence in the society. The protection of women from Domestic Violence Act is passed by the Parliament in response to a worldwide demand for such legislation and it will Act as a deterrent to the occurrences of domestic violence. The Preamble to this Act covers the entire subject-matter of the Act, which relates to Fundamental Rights to life guaranteed to every citizen under Article 21 of the Constitution. The Act is intended to effectively protect the rights of women to a decent and dignified life in the family. It is very important to note here,

that the Preamble of the Act emphasizes the need of the aggrieved women

to immediate reliefs as well as compensation and for rehabilitation when it speaks of matters connected there with and incidental there to. The preamble itself suggests that protection must be effective. 3. Statement of objects and reasons.—Domestic violence is undoubtedly a human right issue and serious deterrent to development.

The Vienna Accord of 1994 and the Beijing Declaration and the Platform for Action (1995) have acknowledged this. The United Nations Committee

Against on Convention on Elimination of All Forms of Discrimination has Women (CEDAW) in its General Recommendation No. XII (1989) against recommended that State parties should act to protect women violence of any kind especially that occurring within the family.

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150

(PART II

prevalent but 2. The phenomenon of domestic violence is widely ntly, where a has remained largely invisible in the public domain. Prese ves, it is an woman is subjected to cruelty by her husband or his relati law does not offence under Section 498 A of Indian Penal Code. The civil however address this phenomenon in its entirety. the rights 3. It is, therefor, proposed to enact a law keeping in view to provide guaranteed under Articles 14, 15 and 21 of the Constitution woman for a remedy under the civil law which is intended to protect the of from being victims of domestic violence and to prevent the occurrence domestic violence in the society. 4. The Bill, inter alia, seeks to provide for the following— () It covers those women who are or have been in a relationship with the abuser where both parties have lived and are related by together in a shared household consanguinity, marriage or through a relationship in the nature of marriage or adoption. In addition, relationships with family members living together as a joint family are also included. Even those women who are sisters, widows, mothers, single women, or living with the abuser are entitled to legal protection under the proposed legislation. However, whereas the Bill enables the wife or the female living in a relationship in the nature of marriage to file a complaint under the proposed enactment against any relative of the husband or the male partner, it does not enable any female relative of the husband or the male partner to file a complaint against the wife or the female partner.

(i) It defines the expression "domestic violence" to include actual abuse or threat or abuse that is physical, sexual, verbal, emotional or economic. Harassment by way of unlawful

dowry

demands

to the woman

or her

relatives

would also be covered under this definition.

(ii) It provides for the rights of women to secure housing. It also provides for the right of a woman to reside in her matrimonial home or shared household, whether or not she has any title or rights in such home or household. This right is secured by a residence order which is passed by the Magistrate.

(iv)

It empowers the Magistrate to pass protection orders in favour of the aggrieved person to prevent the respondent from aiding or committing an act of domestic violence or any other specified act, entering a workplace or any other place frequented by the aggrieved person, attempting to communicate with her, isolating any assets used by both the parties and causing violence to the aggrieved person, her relatives or others who provide her assistance from the domestic violence.

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(v)

151

It provides for appointment of Protection Officers and registration of non-governmental organisations as service providers for providing assistance to the aggrieved person

with respect to her medical aid, safe shelter, etc.

examination,

obtaining legal

5. The Bill seeks to achieve the above objects. The notes on clauses explain the various provisions contained in the Bill. 4. Scheme of the Act.—The act of 2005 has been enacted, as the united Nations Committee on Convention on Elimination of All Forms of Discrimination against Women in its general recommendations recommended that State parties should act to protect women against violence of any kind. especially that occurring within the family. The civil law dose not address the problem in its entirety. Even though where a women is subjected to cruelty by her husband or his relatives, it is an offence under Section 498A of the IPC. Therefore, in order to provide a

remedy in the civil law for the protection of women from being victim of domestic violence and to prevent the occurrence of domestic violence in the society for the protection of women from domestic violence, the Act of 2005 has been enacted by the Parliament. Considering the fact that domestic violence is undoubtedly a human right issue and serious deterrent to development, this law was enacted, keeping in view the rights guaranteed under Articles 14, 15 and 21 of the Constitution to provide for a remedy under the civil law which is intended to protect the woman from being victims of domestic violence and to prevent the occurrence of domestic violence in the society. Therefor, in order to grant minimum relief to the aggrieved person who is subjected to domestic violence, the said Act of 2005 was enacted.

The aggrieved person as defined under Section 2(a) of the Act in subject of domestic violence as defined in Section 3 of the said Act, she is entitled to move an application before the Magistrate under Section 12 of the Act for seeking relief for issuance of the order for payment of compensation or damages without prejudice to right of such person to institute a suit for compensation or damages for the injuries, caused for the acts of domestic violence committed by the respondent.

Sub-Section

(4) of Section

12 of the Act,

contemplates

that the

Magistrate shall fix the first date of hearing, which shall not ordinarily be 3 day from the date of receipt of the application by the Court. Sub-Section 5 further cast duty on the Magistrate to dispose of every application made under sub-section (1) within a period of 60 days from the date of its first hearing. relationship Section 17 envisage, that every woman in a domestic whether or not she shall have the right to reside in the shared household, It further envisages has any right, title or beneficial interest in the same. or excluded from the that the aggrieved person shall not be evicted the respondent. This is very shared household or any part of it by person. important right of the wife, the aggrieved

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Section 18 contemplates that after hearing aggrieved person and the respondent, on being satisfied that domestic violence has taken place or

is likely to take place, the Magistrate has to pass a protection order in favour of the aggrieved person and prohibit the respondent under situations enumerated in clauses (a) to (g).

Section 19 envisages that the Magistrate on being satisfied that domestic violence has taken place pass order in respect of residence of aggrieved person in the situations mentioned in clauses (a) to (f) of sub-section (1) of Section 19 and also past order as contemplated in sub-section (2) to (8) of Section

19. As per Section 20 the Magistrate can

grant monetary reliefs in respect of and in situations, enumerated in Section 20. Section 21 authorizes the Magistrate to pass orders in respect of the custody of the child or children to the aggrieved person. Section 22 authorizes the Magistrate to pass compensation orders on an application

being made by the aggrieved person directing the respondent to pay compensation or damages for the injuries including mental torture and emotional distress, caused by the acts of domestic violence committed by the respondent Section 26 was inserted with the object that in addition to the provision of Section 12, the aggrieved person is entitled to any relief available under Sections 18, 19, 20, 21 and 22 in any legal proceeding, before a Civil Court, Family Court or a Criminal Court, affecting the aggrieved person and the respondent whether such proceeding was initiated before or after the commencement of the Act. Sub-Section (2) of Section 26 further envisages that any relief referred to in sub-section (1) may be sought for in addition to and along with any other relief that the aggrieved person may seek in such suit or legal proceeding before a civil or criminal Court. Sub-section (3) cast duty on the aggrieved person that in case any relief has been obtained by the aggrieved person in any proceeding other than a proceeding under Section 12 of the Act, she shall be bound to inform the Magistrate of the grant of such relief. There-fore, as provided under Section 26, the aggrieved person is also entitled to seek relief as provided under Sections 18, 19, 20, 21 and 22 in any legal proceeding, before a civil Court, family Court or a criminal Court in which the aggrieved person and respondent are party and that relief is in addition to and along with any other relief that the aggrieved person may seek in such suit or legal proceeding. Therefore, and option has been given to the aggrieved person to avail reliefs available to her under Sections 18, 19, 20, 21 and 22 ina legal proceeding pending in a civil Court, criminal Court or family Court in addition to filing of the application under Section 12.

5. Salient features of Constitution of India.—(1) Longest written Constitution.—Indian Constitution can be called the largest written Constitution in the world because of its contents. In its original form, it

consisted of 395 Articles and 8 Schedules to which additions have been made through subsequent amendments. At present it contains 395

Articles and 12 Schedules, and more than 80 amendments. There are various factors responsible for the long size of the constitution. One

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major factors was that the framers of the Constituti on borrowed provisions form several sources and several other Constituti ons of the world. They have followed and reproduced the Government of India Act, 1935 in providing matters of administrative detail. Secondly, it was necessary to make provisions for peculiar problems of India like Scheduled Castes, Scheduled Tribes and backward regions. Thirdl y, provisions were made for elaborate centre-state relations in all aspec ts of their administrative and other activities. Further, the size of the constitution became bulky, as_ provisions regarding the state administration were also included. Further, a detail list of individual rights, directive principies of state policy and the details of administration procedure were laid down to make the Constitution clear and unambiguous for the ordinary citizen. Thus, the Constitution of India became an exhaustive and lengthy one.

(2) Partly rigid and Partly flexible—The Constitution of India is neither purely rigid nor purely flexible. There is a harmonious blend of rigidity and flexibility. Some parts of the Constitution can be amended by the ordinary law-making process by parliament. Certain provisions can be amended, only when a Bill for that purpose is passed in each house of Parliament by a majority of the total membership of that house and bya majority of not less than two-third of the members of that house present and voting. Then there are certain other provisions which can be amended by the second method described above and are ratified by the legislatures of not less than one-half of the states before being presented to the President for his assent. It must also be noted that the power to initiate bills for amendment lies in Parliament alone, and not in the state legislatures. Pundit Nehru expressed in the Constituent Assembly, "While we want the Constitution to be as solid and permanent as we can make it, there is no permanence in Constitution. There should be certain flexibility. If you make anything rigid and permanent, you stop the nation’s growth, the growth of a living, vital organic people." (3) A democratic republic.—India is a democratic republic. It means that sovereignty rest with the people of India. They govern themselves through their representatives elected on the basis of universal adult

franchise. The President of India, the highest official of the state is elected for a fixed term. Although, India is a sovereign republic, yet it continues to be a member of the Commonwealth of Nations with the British Monarch as its head. Her membership of the Commonwealth does not compromise her position as a sovereign republic. The commonwealth is an association of free and independent nations. The British Monarch is only a symbolic head of that association. (4) Parliamentary system of Government.—India has adopted the Parliamentary system as found in Britain. In this system, the executive is responsible to the legislature, and remains in power only as long and it

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[PART II

president of India, who enjoys the confidence of the legislature. The titular or constitutions remains in office for five years is the nominal, e Minister as its head head. The Union Council of Ministers with the Prim onsible to the House of is drawn from the legislature. It is collectively resp ce

it loses the confiden People (Lok Sabha), and has to resign as soon as e shall exercise his of that house. The President, the nominal executiv of Ministers, the real powers according to the advice of the Union Council ntary in nature. executive. In the states also, the government is Parliame "India, (5) A federation.—Article 1 of the Constitution of India says— ation’ ‘Feder that is Bharat shall be a Union of States." Though the word when (a) there is not used. the Government is federal. A state is federal

s between are two sets of Government and there is distribution of power me law of the two, (b) there is a written constitution, which is the supre the the land and (c) there is an independent judiciary to interpret . All constitution and settle disputes between the centre and the states these features are present in India. There are two sets of Government, s one at the centre, the other at state level and the distribution of power between them is quite detailed in our Constitution. The Constitution of India is written and the supreme law of the land. At the apex of single is Court which stands the Supreme integrated judicial system, independent from the control of the executive and the legislature.

But in spite of all these essential features of a federation, Indian unitary tendency. While other Constitution has an unmistakable federations like U.S.A. provide for dual citizenship, the india Constitution provides for single citizenship. There is also a single integrated judiciary for the whole country. The provision of All India Services, like the Indian Administrative Service, the India Police Service, and Indian Forest Service prove another unitary feature. Members of these services are recruited by the Union public Service Commission on an All-India basis. Because these services are controlled by Union Government, to some extent this constitutes a constraint on the autonomy of states.

A significant unitary feature is the Emergency provisions the During the time of emergency, constitution. Indian

in the Union

Government becomes most powerful and the Union Parliament acquires the power of making laws for the states. The Governor placed as the

constitutional head of the state, acts as the agent of the centre and is intended to safeguard the interests of the centre. These provisions reveal the centralising tendency of our federation. Prof: K.C. Where has rightly remarked that Indian Constitution provides, "a system of government which is quasi-federal, a unitary state with the subsidiary unitary features’. The framers of the constitution expressed clearly that there exists the harmony of federalism and the unitarism. Dr. Ambedkar said, "The political system adopted in the Constitution could be both unitary as well as federal according to the requirement of time and circumstances". We can say that India has a “Cooperative federalism" with central guidance and state compliance.

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(6) Fundamental rights—'A state is known by the rights it maintains’, remarked Prof. H.J. Laski. The constitution of India affirms the basic principle that every individual is entitled to enjoy certain basic rights and Part III of the Constitution deals with those rights which are known as fundamental rights. Originally there were seven categories of rights, but now they are six in number. They are (i) Right to equality, (ii) Right to freedom, (iii) Right against exploitation, (iv) Right to freedom of Religion, (v) Cultural and Educational rights and (vi) Right to constitutional remedies. Right to property (Article-31) originally a fundamental right has been omitted by the 44th Amendment Act. 1978. It is now a legal right.

These fundamental rights are justiciable and the individual can move the higher judiciary, that is the Supreme Court or the High Courts, if there is an encroachment on any of these rights. The right to move to the Supreme Court straight for the enforcement of fundamental rights has been guaranteed under Article 32 (Right to Constitutional Remedies). However, fundamental rights in India are not absolute. Reasonable restrictions can be imposed keeping in view the security-requirements of the state.

(7) Directive principles of state policy—A novel feature of the Constitution is that it contains a chapter in the Directive Principles of State Policy. These principles are in the nature of directives to the Government to implement them for establishing social and economic democracy in the country. It embodies important principles like adequate means to livelihood, equal pay for both men and women, distribution of wealth so as to subserve the common good, free and compulsory primary education, right to work, public assistance in case of old age, unemployment. sickness and disablement, the organisation of village Panchayats, special care to the economically back ward sections of the people etc. Most of these principles could help in making India welfare state. Though not justiciable. These principles have been stated a; "fundamental in the governance of the country”. (8)

Fundamental

duties—A

new

Part

IV(A)

after

the

Directive

principles of state policy was incorporated in the constitution by the 42nd Amendment, 1976 for fundaments duties. These duties are: (9 To abide by the Constitution and respect its ideals and institutions, the National Flag and the National Anthem; (i) To cherish and follow the noble ideals, which inspired our national struggle for freedom; (iii) To uphold and protect the sovereignty, unity and integrity of India; (iv) To defend the country and render national service when called upon to do so; erhood (v) To promote harmony and the spirit of common broth amongst all the people of India transcending religious,

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linguistic, regional or sectional diversities, to renounce practices derogatory to the dignity of woman; (v) To value and preserve the rich heritage of our composite culture; (vii) To protect and improve the natural environments including forests, lakes, rivers and wild life and to have compassion for living creatures; (vii) To develop scientific temper, humanism and the spirit of inquiry and reform; (i9 To safeguard public property and to abjure violence; (x) To strive towards excellence in all spheres of individual and collective activity so that the nation constantly rises to higher levels of Endeavour and achievement. The purpose of incorporating these duties in the Constitution is Just to remind the people that while enjoying their right as citizens, should also perform their duties for rights and duties are correlative.

(9) Secular State.—A secular state is neither religious for irreligious, or anti-religious. Rather it is quite neutral in matters of religion. India being a land of many religions, the founding fathers of the Constitution thought it proper to make it a secular state. India is a secular state, because it makes no discrimination between individuals on the basis of religion. Neither it encourages nor discourages any religion. On the contrary, right to freedom of religion is ensured in the Constitution and people belonging to any religious group have the right to profess, practice or propagate any religion they like. (10) An Independent Judiciary—The judiciary occupies an important place in our Constitution and it is also made independent of the legislature and the executive. The Supreme Court of India stands at the apex of single integrated judicial system. It acts as protector of

fundamental rights of Indian citizens and guardian of the Constitution. If any law passed by the legislature or action taken by the executive contravenes the provisions of the Constitution, they can be declared as null and void by the Supreme Court. Thus, it has the power of judicial review. But judicial review in India constitutes a middle path between the American judicial supremacy in one hand and British Parliamentary supremacy in the other.

(11) Single Citizenship.—The Constitution of India recognises only single citizenship. In the United States, there is provision of dual citizenship. In India, we are citizens of India only, not of the respective states to which we belong. This provision would help in promoting unity and integrity of the nation.

6. Women's human rights.—The idea of women’s human right is very simple, as it conveys—as human being women have human rights. In many ways the claim that women have human rights look very ordinary. Now we use the expression "Women’s Human Right" makes some sense and it recognizes dismissal failure of mankind worldwide to

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accord women the human dignity and respect that they deserve simply as human being. A women’s human rights framework equips women with a way to analyze, define and articulate their experience of violence, degradation and marginality. The concept of women’s human rights can be said to be revolutionary.

The Universal Declaration of Human

Rights adopted by the United

Nations General Assembly in 1948 outlines what was considered to be in that century to be the fundamental census on the human rights of all people in relation to various matters dealing with human aspects. It clearly stipulated that such human rights will apply to all equally “without distinction of any kind such as race, color, sex, language etc." Obviously the human rights delineated by the Universal Declaration are to be understood as applying to woman. The problem however arose that the traditional prejudice, social economic and political interests combined

to exclude women from the definitions of "general" human rights and that relegated the woman to secondary and for "special interests’ status within the human right. The marginalisation of women in human rights had the reflection of gender inequality. It contributed to perpetuation of subordinate status of woman. It become extremely difficult rather impossible for women to seek redress of human right violation. The definitions excluded many areas of abuse to women.

The Constitution of India was incidentally came into effect from 26th January 1950 when India become Republic. The Constituent Assembly of India first met on the 9th December 1946 and continued till the 24th January, 1950. The Constitution of India was finally adopted on 26th November, 1949 and signed by the members of the Assembly having accomplished the task of framing the Constitution assigned to it adjourned sine die and became functus officio. There were strenuous debates in the Constituent Assembly for almost two and half aspects an each Article of the Constitution. The Constitution of India was drafted by the Constituent Assembly. The Constituent Assembly held its first sitting on the 9th December, 1946. It reassembled on the 14th August, 1947, as the sovereign Constituent Assembly for the Dominion of India. Constitution of India is the supreme law of India. It lays down the framework defining fundamental political principles, establishing the structure, procedures, powers and duties, of the government and spells out the fundamental the rights, directive principles and duties of citizens. Passed by 26 on Constituent Assembly on 26 November 1949, it came into effect the January 1950. The date 26 January was chosen to commemorate declaration of independence of 1950. Written constitution

Unwritten conventions Detailed constitution It starts with Preamble It is drawn from various sources GO aw be

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[PART Il

Sovereign, socialist, secular, democratic Republic Fundamental Rights and Fundamental Duties Directive Principles of State Policy Parliamentary government

Rigid as well as flexible Constitution Federal in form unitary in spirit Universal Adult Franchise Secular State

Bi-cameral Legislature Power of Judicial Review Rule of Law Single citizenship . Joint Electoral system Method of Amendment Provision of Emergency Powers Provision of Administrative Tribunals Non-political Civil Servants 23. Provision of Some independent institution The Constitution of India was given the final shape in November 1949 after the Universal Declaration in 1948, so it can be presumed that the members of the Constituent Assembly took note of the human right factors Constitution of India provides the legal frame work for integration and implementation of measures promoting and protecting human right of women.

Fundamental rights— Article 14—equal rights and opportunities for men and women in the political, economic and social sphere Article 15—prohibition of discrimination on the grounds of sex, religion, caste etc. Article 15 (3)—empowers

the State. to take affirmative measures

of women

Article 16—provides for equality of opportunities in the matter of public appointments Directive principles Article 39—enjoins the states to provide an “ Adequate means of livelihood to men and women and * Equal pay for equal work Article 42—State to ensure the provision for just and humane condition of work and maternity relief. Fundamental

duties

Article 5lv (A)(e)—fundamental duty on every citizen to renounce the practices derogatory to the dignity of women.

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Financial accountability Article 151—reports relating to the accounts of the Union and States to be prepared and placed before the Parliament and State legislatures respectively. Power to make laws Article 245—Subject to the constitution parliament may make laws for the whole or any part of the territory of India, and the Legislature of a State may make laws for the whole or any part of the State. Legislation for giving effect to international agreements Article 253—Parliament is vested with the power of making laws for the whole or part of India for implementing any treaty, agreement

or convention

with

any

other

country

or any

decision made at any international conference, association or other body. There had been unknown pervasive division of life into “public” and "private" spheres of human rights concerning a woman. What the individuals do in "public" life sphere are subject to regulations while the activities taking place in "private” sphere are thought to be exempt from Government scrutiny and the domestic life came within “private” spheres. The abuses in "public" sphere had been the focus mind of international human rights advocacy. In the case of "public" sphere also for the citizens—primarily men—who dominate in public and governmental realms and who enjoy gender and economic privilege the issues of

primary concern were tended to be those issues to which they (men) are most vulnerable there too gender bias remained the issue to the concern of women. In "private" sphere there was total reluctance to get involved, thought the women were relegated to the "private sphere of the home and family and hence the dominant notion of human rights abuse have implicitly had a man as their archetype. The human rights violation of women in "public" sphere though visible are ignored and the violations in "private" sphere being invisible. During the United

Nations Decade

for Women

(1976-1985),

women

from many geographical and cultural background took up for organizing to improve the status of women. The United Nations sponsored women’s conferences, which took place in Mexico city in 1975, Copenhagen in 1980 and Nairobi in 1985, were convened to evaluate the status of women and to formulate strategies for advancement of women. The women

came

together,

debated

and

discussed

their

differences

and

discovered their commonalties and bridged differences to create a global movement. In the late eighties and early nineties women in different countries took initiatives to develop the analytic and political tools with the idea of women’s human rights. The idea that the human rights are universal also challenges the contention that the human right of women can be limited by culturally specific definitions of what count as human rights and of women’s role in the society. The idea of human rights as inalienable means that it is impossible for any one to abdicate her human

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rights, even if she wanted to, since every person is accorded those rights

by virtue of being women. No person can deprive another individual of her or his human rights. The idea of inalienable rights means that human rights cannot be sold, ransomed or forfeited for any reason. Both the Vienna Declaration and Program of Action from the world conference on Human Rights held in Vienna in 1993 and the United Nations Declaration Against Violence Against Women passed by the General Assembly, affirmed that in cases of conflict between women’s human rights and cultural or religious practices, the human rights of women must Prevail. The fact that human rights of are indivisible in important for women, since their civil and political rights historically have been compromised by their economic status by social and cultural limitations placed on their activities and by the threat of violence that often constitutes an insurmountable obstacle to women’s participation in public and political life. While women have raised questions for a long time why their rights are seen as ancillary to human rights. There has been concerted and coordinated effort to change this attitude. The United Nations World Conference on Human Rights held in Vienna in 1993 was the first such meeting since 1968, and it became a natural vehicle to highlight the new visions of human rights ‘thinking and practice being developed by women. The idea that "women’s rights are human rights "became one of the most discussed "new" human rights debates. The Vienna Declaration and Program of Action which was the product of the conference, meant to signal the agreement of the International Community on the status of human rights. Which stated unequivocally that "The human rights of women and of the girl child are an inalienable, integral and indivisible part of universal human rights.

The agreements that are produced by such conferences are not legally binding; however, they do have ethical and political weight and can be used to pursue regional, national, or local objectives. Conference documents can also be used to reinforce and interpret international treaties such as the Covenant on Civil and Political Rights, or the Covenant of Social, Economic and Cultural Rights. These covenants, when signed by a country, do have the status of international law and have been used in Courts by lawyers seeking redress for human rights violations. The most important international treaty specifically addressing women's human rights is the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) which was initiated during the UN Decade for Women and has been ratified by over 130 countries. Further, local women’s groups have integrated the women’s human rights framework into their legal literacy programs and legal strategies. The results of the International Conference on Population and Development (ICPD) held in Cairo reflect the success of efforts by activists worldwide to bring women's empowerment to the forefront of international debate on sustainable and social development and population policies. [See related story. Cairo Conference Invokes the Empowerment of Women, in this issue.]

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Activists at the ICPD built on the progress achieved at the 1993 World Conference on Human Rights in Vienna, which witnes sed the

Transforming the political mandat es of the Cairo and Vienna conferences into reality will requir e mechanisms to hold Governmen t and a range of international actors accoun table for the impact of their policies on women’s status and on women' s civil, political, economic, social, and cultural rights. It will require mul tilateral and bilateral donors and , in tum, national Government to allo cate resources to deliver on the commitments undertaken in Cai ro and the promise of the Wor ld Conference on Human Rights. Human rights can provide a framework for realizing women's empowerment within the processes of development and building civil society. While we need to acknowledge that seri ous dialogue is taking place on women’s human rights, this will only be meaningful and productive when we develop the arguments that equa lity of women is the interests of men as well and therefore of society as a whole. Women as full participants in repairin g the world. Yet, there are many women’s movements, the feminist movement. the women's health © movement, the movements: to protect the girl child, to fight for a better work place, to save women sold in the mark et place; to mention justa few of them. Women’s

groups exist to fight every injustice agai nst wome

n. Some of these groups have identified their issues as human rights issues, but many have not yet responded to the call from Vienna. Human rights are universal, interdependent and indivisible. The refusal by many groups to recognize their issues as human rights issues is for fear that it will weaken their arguments, confine them to the issues of violence, deem them confrontational, narrow their mandate, or box them into the legal Daradigm. But until all women’s groups, whet her they are fighting against hunger, poverty, violence or for education, clea n water or health sare, for example, must realize their connectednes s through human ights and become indivisible in their pursuit for social justice.

The question is why at all there was needed a debate and struggle n human rights of the women. Born as human they have the right. Men

leny them the right with indirect refusal to treat them as human and so he necessity for the women to take a lead in human rights revolution. -EDAW demand of all women's needs, but, as long as the issues of

ender are not fully integrated as a matter of fact in the totality of human

ights, then the "human rights of women" becomes what is known as ender issue. No doubt there are differences between men and women ut what is not expected is dominance of one, on the other. Development

LAWS ON PROTECTION OF WOMEN FROM DOMESTIC VIOLENCE

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(PART Il

n and must must be gender sensitive, law must fully include wome lives and their understand human rights as relevant to their daily family’s daily lives. a Human The Beijing Conference was a Women’s Conference and blueprint for Rights Conference. The resultant Platform for Action is a human rights human rights education as it points out all the concerns of out all the of women and of humanity as a whole. The Platform maps daily lives injustices, human rights violations that affect women in their rights violations which are and the strategies eradicate human specifically perpetrated against women because they are women. In Vienna, the obstacles to accept women’s human rights were as conceptually removed, when the world recognized women’s rights human rights.

The

Beijing

Declaration

of Platform

for Action,

Fourth

World

Conference on Women, on the 13th September, 1995, reaffirmed’ their commitment to and were convinced as follows! The equal rights and inherent human dignity of women and men and other purposes and principles enshrined in the Charter of the United Nations, to the Universal Declaration of Human Rights and other international human rights instruments, in particular the Convention on the Elimination of All Forms of Discrimination against Women and the Convention on the Rights of the Child, as well as the Declaration on the Elimination of Violence against Women and the Declaration on the Right to Development; Ensure the full implementation of the human rights of women and

of the girl child as an inalienable, integral and indivisible part of all human rights and fundamental freedoms; Build on consensus and progress made at previous United Nations conferences and summits-on women in Nairobi in 1985, on children in New York in 1990, on environment and development in Rio de Janeiro in rights in Vienna in 1993, on population and 1992, on human development in Cairo in 1994 and on social development in Copenhagen

in 1995 with the objectives of achieving equality, development and peace; of the Nairobi Achieve the full and effective implementation Forward-looking Strategies for the Advancement of Women; The empowerment and advancement of women, including the right to freedom of thought, conscience, religion and belief, thus contributing to the moral, ethical, spiritual and intellectual needs of women and men, individually or in community with others and thereby guaranteeing them the possibility of realizing their full potential in society and shaping their lives in accordance with their own aspirations. Are convinced

that:

Women's empowerment and their full participation on the basis of equality in all spheres of society, including participation in the decision-making process and access to power, are fundamental for the achievement of equality, development and peace;

3

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Women’s rights are human rights; Equal rights, opportunities and access to resources, equ al sharing of responsibilities for the family by men and women, and a harmonious partnership between them are critical to their well-being and that of their families as well as to the con solidation of democracy; Eradication of poverty based on sustained economic growth, social development, environmental protection and social justice requires the Opportunities and the full and €qual participation of women and men as agents and beneficiaries of people -centred sustainable development: The explicit recognition and rea ffirmation of the right of all wom en to control all aspects of their hea lth, in particular their own fert ility, is basic to their empowerment; Local. national, regional and global peace is attainable and is inextricably linked with the adv ancement of women, who are a fundamental force for leadership, conflict resolution and the promotion of lasting peace at all levels: It is essential to design, implem ent and monitor, with the full Participation of women, effective. efficient and mutually reinforcing gender-sensitive policies and programmes, including development policies and programmes, at all leve ls that will foster the empowerment and advancement of women: | The participation and contribution of all sectors of civil society, — part

icularly women’s groups and net works and other non-Government organizations and community-based organizations, with full respect for their autonomy, in cooperation with Government, are important to the effective implementation and follow-u p of the Platform for Action : The implementation of the Platform for Action requires commitment from Government and the international community. By making national and international commitments for acti on, including those made at the Conference, Government and the internat ional community recognize the need to take priority action for the emp owerment and advancement of women.

We are determined to:

Intensify efforts and actions to achieve the goals of the Nairobi Forward-looking Strategies for the Advancement of Women by the end of

this century;

Ensure the full enjoyment by women and the girl child of all human rights and fundamental freedom, and _ take effective action against violations of these rights and freedoms: Take all necessary measures

to eliminate all forms of discrimination

against women and the girl child and remove all obstacles to gender €quality and the advancement and empowerment of women; Encourage men to participate fully in all actions towards equality;

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ding employment, Promote women's economic independence, inclu of poverty on women and eradicate the persistent and increasing burden in:

through changes by addressing the structural causes of poverty women, including economic structures, ensuring equal access for all agents, to productive those in rural areas, as vital development

resources, opportunities and public services; including development, sustainable people-centred Promote basic education, sustained economic growth through the provision of health care for life-long education, literacy and training, and primary girls and women, ent of women Take positive steps to ensure peace for the advancem d in the peace and, recognizing the leading role that women have playe ete disarmament movement, work actively towards general and compl rt negotiations under strict and effective international control, and suppo multilaterally and on the conclusion, without delay, of a universal and treaty which nuclear-test-ban comprehensive effectively verifiable of the the prevention and to nuclear disarmament contributes proliferation of nuclear weapons in all its aspects; Prevent and eliminate all forms of violence against women and girls; Ensure equal access to and equal treatment of women and men in education and health care and enhance women’s sexual and reproductive health as well as education; Promote and protect all human rights of women and girls; Intensify efforts to ensure equal enjoyment of all human rights and fundamental freedoms for all women and girls who face multiple barriers to their empowerment and advancement because of such factors as their race, age, language, ethnicity, culture, religion, or disability, or because they are indigenous people; Ensure respect for international law, in order to protect women and girls in particular; Develop the fullest potential of girls and women of all ages, ensure their full and equal participation in building a better world for all and enhance their role in the development process. We are determined

to:

Ensure women’s equal access to economic resources including land, information, training, vocational and _ technology, science credit. communication and markets, as a means to further the advancement the and _ girls, including through of women and empowerment enhancement of their capacities to enjoy the benefits of equal access to these resources, inter alia, by means of international cooperation; Ensure the success of the Platform for Action which will require a international of Government, part on _ the commitment strong organizations and institutions at all levels. We are deeply convinced that economic development, social development and environmental protection are interdependent and mutually reinforcing components of sustainable

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development, which is the framework for our efforts to achieve a higher quality of life for all people. Equitable social deve lopment that recognizes empowering the poor, particularly women livin g in poverty, to utilize environmental resources sustainable is a nece ssary foundation for sustainable development. We also recognize that broad-based and sustained economic growth in the context of sust ainable development is necessary to sustain social development and socia l justice. The success of the Platform for Action will also require adeq uate 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, sub-regional, regional and internat ional 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; the establishment or strengthening of mechanisms at all level s for accountability to the world’s women: Ensure also the success of the Platform for Action in countries with economies in transition, which will require continued internationa l cooperation and assistance; We hereby adopt and commit ourselves as Governments to implement the following Platform for Action, ensuring that a gender perspective is reflected in all our policies and programmes. We urge the United Nations system, regional and international financial institutions, other relevant regional and international institutions and all women and men, as well as non- governmental organizations, with full respect for their autonomy, and all sectors of civil society, in cooperation with Governments, to fully commit themselves and contribute to the implementation of this Platform for Action. The following had been the Mission Statement:

PLATFORM FOR ACTION CHAPTER | MISSION STATEMENT 1. 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 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 and a condition for social justice and is also a necessary and and peace. A fundamental prerequisite for equality, development transformed partnership based on equality between women and men is a

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condition for people-centred sustainable development. A sustained and work long-term commitment is essential, so that women and men can the together for themselves, for their children and for society to meet challenges of the twenty-first century. 2. 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.

3. 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 equality around the world. It respects and values the full diversity hoof women’s face situations and conditions and recognizes that some women particular barriers to their empowerment. 4. The Platform for Action requires immediate and concerted action by all to create a peaceful, just, humane and equitable world based on human rights and fundamental freedoms, including the principle of equality for all people of all ages and from all walks of life. 5. 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 principle of equality for all people of 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.

6. 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, sub-regional, regional and international institutions; a commitment to equal right, 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. The critical areas of concern were identified as follows:

¢ The persistent and increasing burden of poverty on women

¢ Inequalities and inadequacies in and unequal access to education and training

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THE PROTECTION OF WOMEN FROM DOMESTIC VIOLENCE ACT, 2005

* Inequalities and inadequacies care and related services e Violence against women ¢ The

effects

of

armed

or

in and unequal

other

kinds

e

access

of conflict

including those living under foreign occupation ¢ Inequality in economic structures and policies,

167

on

to health

women.

in all forms

of

productive activities and in access to resources Inequality between men and women in the sharing of power and

decision-making at all levels ¢ Insufficient mechanisms at all levels to promote the advancement of women

e Lack of respect of or and inadequate promotion and protection of the human rights of women ¢ Stereotyping of women and inequality in women’s access to and participation in all communication systems. especially in the media

e Gender inequalities in the management of natural resources and in the safeguarding of the environment * Persistent discrimination against and violation of the rights of the girl child The action program was divided in the following categories. (a) Women and poverty; (b) Education and Training of women; (c) Women and health; (d) Violence against women; (e) Women and armed conflicts: () Women and economy; (g) Women in power and decision making; (h) Human Rights of women; () Women and media; (j) Women and environment. Violence against women and girls is increasingly recognized as one of the most serious and urgent challenges of our times. In all parts of the world, Its very real and harmful effects on women and girls have been seen to impede the pursuit of development, peace and gender equality. The international community and civil society together have concluded that there are no circumstances that can excuse violence women and girls—it is always a violation of their human always a crime, and it is always unacceptable.

that targets rights, it is

All too often, repetrators of violence against women and girls go unpunished. Such impunity—viewed by many as equally widespread, and equally unacceptable, as the violence—is a_ key element in perpetuating that violence and discriminations. As long as impurity for

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[PART II

violence against women and girls is accepted and tolerated by society, so too will society continue to accept and tolerate acts of violence. But despite growing awareness of the magnitude of the problem, its dimension, forms, consequences and costs—to both the individual and society at large—the political will to end the culture of impunity, and to effectively prevent and address violence against women yet materialized.

and girls, has not

The specific recognition that women and girls have a right to a life free from violence is fairly recent. Historically, women’s struggles against violence, including the impunity that so often protects its perpetrators, have been closely intertwined with their fight to overcome discrimination. As standards and norms to prevent, punish and eradicate violence against women have been elaborate, many advances in global standards were made within the United Nations system itself. It was women’s efforts that led to the 1979 adoption of the United Nations Convention on the Elimination of all Forms of Discrimination against Women, the principal international human rights instrument for women and girls. In its opening paragraph, the Convention reminds us that the United Nations Charter"...reaffirms faith in fundamental human rights, in the dignity and worth of the human person and in the equal rights of men and women...". It then goes on to define discrimination against women

as any "distinction,

exclusion or restriction made

on the

basis of sex which has the effect... of impairing or nullifying the recognition, enjoyment or exercise by women...on a basis of equality of men and women of human rights and fundamental freedoms..." The Convention, as well as many other legal instruments and negotiated outcomes of international conferences, upholds the rights of women and girls to a life free from violence. Based on many international agreements, States have a recognized duty to respect, protect, promote and fulfil human rights extended the State’s responsibility to protecting women and girls from violence that targets them, which is an act of discrimination and violates their human rights. Thus, women and girls have a right to a life free of violence.

Violence against women and girls is rooted in inequality and discrimination against them, in both the private and public spheres. At major conferences in 1975, 1980, 1985 and 1995. the United Nations brought together the nations of the world to discuss strategies and policies to achieve equality for women and girls, and to end violence against them. The 1993 United Nations Declaration on the Elimination of violence against Women called violence against women and Ginis' ta manifestation of the historically unequal power relations between men and women, which have led to domination over and discrimination against women by men...". The same year, the Vienna Declaration and Programme of Action affirmed the universality of women’s rights as human rights and called for the elimination of gender-based violence. These processes led to the adoption of the Beijing Platform for

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Action—a global blue print to achieve gender equality. The Beijing Platform reiterates that violence against wom en and girls violates their human rights, and prevents them from fully enjoying their "fundamental freedoms". A central Strategy in the Platform is to mobilize national and local governments and civil society to end impu nity. Violence against women and girls continues to receive attention by governments at the United Nations, Security Council resolution 1325 on women, peace and security adopted in 2000. brought the issue of sexual and gender based violence in armed conflict and post-conflict situations, and the importance of protecting women and girls in_ those circumstances, into the heart of the global disc ourse on peace and security.

World leaders gathered together at the 2005 World Summit reaffirmed their conviction that progress for women is progress for all, and recognized the importance of eliminating all forms of discrimination and violence against women and girls, including by endin g impunity. These international legal and policy framework, as well as related regional and national frameworks, reaffirm that violence again st women and girls is a violation of their human rights, rooted in discr imination. They provide a strong foundation, with tools for States to protect the rights of women and girls and eradicate to only ‘the violence but also the discrimination upon which it is based. They also reaffirm that States have a duty to prevent violence against women and girls, to inves tigate acts when they do occur, to prosecute and punish the perpetrato rs, and to provide redress and relief to victims. Violence against women, both violence and impairs the enjoyment by women of human rights and fundamental freedoms. These rights and freedoms include: the right to life; the right to equality; the right to liberty and security of person; the right to equal protection under the law; the right to be free from all forms of discrimination: the right to the highest standard attainable of physical and mental health: the right to just and favourable conditions of work; the right not to be subjected to torture, other cruel, inhuman or degrading treatment or punishment. Yet, domestic violence is still not regarded seriously as a crime, with very little actual protection afforded, women are still being blamed for “inciting” rape, victims of sexual harassment still do not have formal legal

recourse, and foreign domestic workers are still not viewed as workers with rights of an employee. In year 2000, there were 3468 reported cases of domestic violence, 136 reported cases of incest, and 1217 reported cases of rape, out of which approximately 69.4% of the rapes occurred in

"safe" places (houses, schools etc.). The fear of violence can be crippling. Women who are in abusive relationships often feel so trapped by their fear that they are unable to even imagine escape. Sexual harassment in the workplace can create such a hostile environment for the victim that it may affect her performance, making her feel powerless, especially if the harasser is

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someone who is in a higher position. Gender based violence is discrimination within the meaning of Article 1 of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), which Malaysia has ratified to in 1995. This discrimination seriously inhibits women’s full participation in society in the achievement of equality, development and peace. Essentially, the protection of women’s right to freedom from violence is imperative.

The 1990s, in particular, witnessed concentrated efforts on the part of the world community to legitimize and mainstream the issue. The World Conference on Human Rights in Vienna (1993) accepted that the rights of women and girls are "an inalienable, integral and indivisible part of universal human rights."The United Nations General Assembly, in December 1993, adopted the Declaration on the Elimination of Violence against Women. It is the first international human rights instrument to deal exclusively with violence against women, a ground breaking document the became the basis for many other parallel processes. In 1994, the Commission on Human Rights appointed the first UN Special Rapporteur on Violence against Women, entrusting her with the task of analyzing and documenting the phenomenon, and _ holding Governments accountable for violations against women. The Fourth World Conference on Women in Beijing (1995) included elimination of all forms of violence against women as one of its twelve strategic objectives, and listed concrete actions to be taken by Governments, the United Nations, international and non- governmental organizations. While gender-based violence is not specifically mentioned in the 1979 Convention on the Elimination of all Forms of Discrimination against Women (CEDAW), in 1992 the Committee overseeing CEDAW implementation adopted General Recommendation 19, which states that it is a form of discrimination that inhibits a woman's ability to enjoy rights and freedoms on a basis of equality with men. It asks that Governments take this into consideration when reviewing their laws and policies.

Under the new Optional Protocol to CEDAW, adopted by the UN General Assembly in October 1999, ratifying States recognize the authority of the Committee to receive and consider complaints from individuals or groups within that State’s jurisdiction. On the basis of such complaints, the Committee can then conduct confidential investigations and issue urgent requests for a Government to take action to protect victims from harm, bringing the Convention into line with other human rights instruments such as the Convention against Torture. This growing momentum has compelled a better understanding of the causes and consequences of violence against women, and positive steps have been taken in some countries, including reforming and changing laws that deal with this issue. Some regions have developed their own conventions on violence against women, examples of which are the Inter-American Convention on the Prevention, Punishment and

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171

Eradication of Violence against Women. and the African Convention on Human and People’s Rights, including its Additional Protocol on Women’s Rights. 7. Special legislations and policies affecting women.—(A)

Labour

*

The Factories Act, 1948—Section 34 provides that the State Government can lay down rules prescribing weights that may be carried by men and women. The Contract Labour (Abolition and Regulation) Act and Rules— Separate provision of utilities for women and fixed working hours. (These these laws have proper implementation mechanisms, there is no provision for monitoring the effect of these laws on women. Allowance for special provisions for women have often proven to be detrimental to their employment opportunities.) Maternity Benefit Act, 1961—Provides measures and

benefits to women

in service during pregnancy.

Equal Remuneration Act, 1976—Mandates equal hours of work for men and women.

equal pay for

(B) Traffickling *

«

(C)

Immoral Traffic Prevention Act, 1956. Currently undergoing review for Amendments.

Domestic

Violence

¢

Criminal law—Section

¢

Protection Rules « *

*

*

(D) e

498A

of Women

from

Domestic

Violence

Act,

2005

&

Civil law on domestic violence Recognition of the right to residence Provision for the appointment of Protection officers and the recognition of Service Providers

Training for Protection Officers and Judges

*

Awareness creation

*

Budgetary allocation

Sex Determination

Pre-conception Selection) Act

and

and Abortions Pre-natal

Diagnostic

(Prohibition

of

Sex

¢ It requires the following bodies to undertake publicity efforts and allows for the filing of compliance reports on a regular basis: *

Policy Making Bodies at the Centre and State

*

Implementing levels

Authorities

at State,

District and

sub-district

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172

* Advisory Bodies at State, District and sub-district levels.

Medical Termination of Pregnancies Act 1971 * Prescribes guide lines and procedures fraternity with regard to abortion. (E)

to

the

medical

Sexual Harassment

Section 354 Indian Penal Code—Outraging the modesty of a woman Criminalises all non-penetrative sexual of fences against women and is often used in cases of sexual harassment. Supreme Court Guidelines on the prevention of sexual harassment at Workplace (Visakha v. State of Rajasthan) Prescribes preventive steps and provides for a complaints mechanism through setting up of complaint committees and disciplinary action.

Proposed Bill on Sexual Harassment at Workplace This bill providing for prevention and redressal mechanisms in cases of sexual harassment at work places is yet to be passed by the Parliament. Personal Laws

Affect marriage, property rights, guardianship, custody rights and maintenance.

Personal laws are based on religious practices. While some of the laws are codified some are uncodified and understood to form customary practices of communities. Note: India’s declaration to Art. 5(a) CEDAW state it’s policy of non-interference in the personal affairs of any community without its initiative and consent. Political Participation

73rd and 74th Amendments to the Constitution on reservations for women in Panchayats and municipal bodies (local Governments). Panchayati Raj Acts have been passed by several state Governments giving effect to Constitutional provisions. Gender Budgeting

In 2004, detailed guidelines on Gender Budgeting and Gender Mainstreaming have been circulated to all Departments and Ministries in the Government of India and to the State Governments for gender specific expenditure. Other legislations and policies * Supreme Marriages ¢

Court

Commission

Guidelines

on

of Sati Prevention Act,

Compulsory 1987

* Child Marriage Restraint (Amendment) Act, 1979

Registration

of

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¢

THE PROTECTION OF WOMEN FROM DOMESTIC VIOLENCE ACT, 2005

Indecent Representation of Women

173

(Prohibition) Act, 1986

Commissions set up under statutory provisions to provide better protection for rights of women National Commission for Commission for Women Act, 1990

Women

under

the

National

* Powers to review constitutional and legal safeguards for women. e Recommend remedial legislative measures. ¢ Take suo motu notice of matters relating to deprivation of rights, non-implementation of laws enacted, non-compliance of policy decisions, guidelines or instructions aimed at ensuring welfare of women and take up such cases with appropriate authorities. ¢ Advise the Government on all policy matters affecting women. National Human Rights Commission under Protection of Human Rights Act, 1993 * inquire suo motu, or on petition by victim, or on behalf of a victim regarding violation of human rights by public servants. e intervene rights.

in

any

proceedings

* make recommendations treaties and instruments. Individual challenges movement have succeeded providing relief to women.

for

all alleging

violation

implementation

of

of human

international

to discriminatory provisions by women’s in positive interpretation of the legislations

Despite legislations on sex selective practices, use of technology in conducting pre-natal sex selection continue to support female foeticide. Lack of enforcement of the legislations coupled with inadequate recognition

of equal rights of women

serve in continuance

of such

sex

discriminatory practices.

Despite all such legislation adorning the statute books, there had been no adequate relief reaching the women, basically for the following reaches. (a) Lack of awareness among women about the laws and their own right even under the constitution of India. There is lack of adequate agency to educate them and in same cases it is found either they want to know it or the society does not want them to know. Even the Government agencies and the NGO art not able to do much in this regard. (b) High Court of litigation;

_ (¢) The Legal Aid and Legal Services are worth name sake. The

(d)

legislations have no doubt mandated such provisions but very often they are unable to avail them. Also no doubt about it, that such services lack quality; | Lack of political well;

(e)

Not

sufficient

number

of women

in Judiciary,

Politics,

law

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LAWS ON PROTECTION OF WOMEN FROM DOMESTIC VIOLENCE

[PART Il

making police department and the like. They are still more or less dominated by men; (f) Protection officers under the 2005 Act need to be "full time" appointment.

(g) Only woman can take a lead to become the educator to educate the women about their human rights. Only they themselves can empower each other, leading the human rights revolution.

(h) Women being central to all developments are included in all the decision making processes.

not

fully

8. Meaning of Statute—Objects and Reasons.—It is not the law that the Court, irrespective of the nature, purport and object of the Statute, shall assign a meaning which was not intended to be given by the legislature as stated in the case of Raymond Ltd. v. State of Chhattisgarh, AIR 2007 SC 2854. Where the meaning of the statute is clear, it is not necessary to advert to object and reasons of the statute. Reference be also made to decisions in Aswini Kumar Ghose v. Arabinda Bose, AIR 1952 SC 369 and State of West Bengal v. Union of India, AIR 1963 SC 1241. The statement of object in Domestic Violence Act, 2005, makes it clear that the complainant shall be necessarily a woman and the respondent shall necessarily be a male except in a case where the complainant is a wife, the respondent may be a female relative of the husband or male partner.

9. Mimansa Rules of Interpretation.—The Apex Court for the case of Sujit Singh v. Mahanagar Telephone Nigam Ltd, AIR 2008 SC 2226, made the observation that it is deeply regrettable that in our Courts of law, lawyers quote Maxwell and Craies but no body refers to the Mimansa Principles of Interpretation. Our people are largely unawares about the great intellectual achievements of our ancestors and the intellectual achievements of our ancestors and the intellectual treasury they have bequeathed us. The Mimansa Principles of Interpretation is part of that intellectual treasury, but it is distressing, the Apex Court said, that apart from a reference to these principles in the judgment of Sir John Edge, the then Chief Justice of Allahabad High Court in Beni Prasad v. Hardai Devi, (1892) ILR 14 All 67 (FB), there had been almost no utilizat ion of these principles even in our own country (except by M.Katju J.). Such rules were our traditional principles of interpretation used for over two and a half thousand years, laid down by Jaimini whose Sutras were explained by Shabar, Kumarila Bhatta, Prabhakar etc. These principl es

were regularly used by the jurists of such times, whenever they found and controversy or conflict between the various smritis or any ambiguity

or incongruity therein. The Apex Court said that it is no where mention ed in our Constitution or any other law that only Maxwell's Principles of interpretation can be used by the Courts. We can use any system of interpretation which helps us solve a difficulty. In certain situations Maxwell's principles would be more appropriate, while in other situations the Mimansa principles may be more suitable. The book on Mimansa are

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almost all in Sanskrit, but there is one good book called the Mimansa Rules of Interpretation by Prof K.L. Sarkar published in the Tagore law lecture series. These

rules

were

originally

created

for

resolving

the

practical

difficulties in performing the Vedic Yagyas. There had been many ambiguities, conflicts, in congruities, ellipses etc in the Brahmana texts, and hence principles of interpretation had to be created for this purpose. The Mimansa principles were in fact created of or religious purposes, but they were so rational and logical that subsequently they began to be used in law, grammar, logic, philosophy etc., that is they became of universal application.

Jamini in sutra 6: 3: 9 states that, "When there is a conflict between the purpose and the material, the purpose is to prevail, because in the absence of the prescribed material a substitute can be used for the material is subordinate to the purpose. In the Mimansa system the literal rule of interpretation is called the Shruti (or Abhida) principle, and ordinarily it is this principle which is to be applied when interpreting the text. However, there are exceptional situations when we have to depart from the literal rule and then certain other principles had to be resorted

to eg.;

(1) The "Linga” (also called the Lakshana) principle or the suggestive power of words or expressions ; (2) The Vakya principle or syntactical arrangement ; (3) The Prakarna principal, which permits construction by referring to other tests in order to make the meaning clear; (4) The Sthana (position) principles which means the relative position of one text with reference to another: (5) The Samakhya (name) principle which means the connection between different passages by the indication > accorded by the derivative word, of a compound name. The Linga principle which means interpretation by understanding the context, and it is a departure from the literal use of interpretation, was illustrated by the Apex Court in U.P. Bhoodan Yagna Samiti v. Brij Kishore, AIR 1988 SC 2239, where the Court departed from the literal rule of interpretation. In this principle no violence is done to the wordings of the text, but the words or expressions are construed differently from the literal sense, and hence Linga is really construction by context. In Vakya however same violence is done to the text e.g. by connecting two separate sentences or by adding words or expressions, or by transferring words or expressions up or down a sentence. This violence sometimes become necessary to save the text from becoming meaningless or absurd, just as the surgeon may have to do violence to the body (by operation) to save the patients life. Maxwell also permits doing violence to the statute in exceptional situations. 10. Fundamental Rights in the Constitution are not Gift to Citizen but Basic Human Rights.—It is a fallacy to regard fundamental

[PART Il

LAWS ON PROTECTION OF WOMEN FROM DOMESTIC VIOLENCE

176

rights as a gift from the state to its citizens. Individuals possess basic human rights independently of any constitution by reason of basic fact that they are members of human race, as observed by the Apex Court in v. Union of India, AIR 2007 SC 71. These the case of M. Nagaraj fundaments rights are important as they possess intrinsic value. A right becomes a fundamental right because it has fundamental value. Every such right has a content. Rather we can say that fundamental right is a limitation on the power of the State. The Courts must interpret the Constitution in a manner which would enable the citizens to enjoy the rights guaranteed by it in the fullest manner. The Apex Court made expansive interpretation of fundamental rights in cases like A.K. Gopalan, AIR 1950 SC 27 and Maneka Gandhi v. Union of India, AIR 1978 SC 597. The Apex Court has in numerous cases deduced fundamental features which are not specifically mentioned in Part III on the principle that certain unparticulated rights are implicit in the enumerated guarantees. For example, freedom of information has been held to be implicit in the guarantee of freedom of speech and expression, though there was no legislation securing freedom of information till then. The Apex Court by liberal interpretation deduced the right to know and right to access information on the reasoning that the concept of open Government is the direct result from right to now as implicit in freedom of speech. 11. Constitutional validity of the Act.—The Constitutional validity of the enactment came before different High Court, for giving preferential treatment to wife over husband in as much as under the Act husband cannot file a complaint and thus stated to be violative of Article 14 or Article 16. In fact the Constitution itself under Article 15 (3) provides for making special provisions favoring women and children. This Act is in tune with the spirit of Article 15 (3)and hence not unconstitutional, with reasonable classification. 12. Steady change in status of women.—The steady change in their position can be highlighted by looking at what has been achieved by women in the country: 1848 : Jyotirao Phule, along with his wife Savitribai Phule, opened a school for girls in Pune, India. Savitribai Phule became the first women teacher teacher in India.

1879 : John Elliot Drinkwater Bethune established the Bethune School in 1849, which developed into the Bethune College in 1879, thus becoming the first women’s college in India. 1883 : Chandramukhi Basu and Kadambini Ganguly first female graduates of India and the British Empire.

became

the

1886 : Kadambini Ganguly and Anandi Gopal Joshi became the first women

from India to be trained

1905

: Suzanne

in Western

RD Tata becomes

medicine.

the first Indian woman

to drive a

Car.

1916 : The first women’s university, SNDT Women’s

University, was

PART Il]

founded

THE PROTECTION OF WOMEN FROM DOMESTIC VIOLENCE ACT, 2005

on 2 June

1916 by the social reformer Dhondo

with just five students.

1917 : Annie Besant became

National congress.

177

Keshav Karve

the first female President of the Indian

1919: For her distinguished social service, Pandita Ramab ai became the first Indian woman to be awarded the Kaisar-i-Hind Medal by the British Raj. 1925 : Sarojini Naidu became the first Indian born female President of the Indian National Congress 1927 : The All India Women’s

Conference was founded.

1944 : Asima Chatterjee became the first Indian woman to be conferred the Doctorate of Science by an Indian university. 1947 : On 15 August 1947, following independence, Sarojini Naidu became the Governor of the United Provinces, and in the process became India’s first woman governor. | , 1951 : Prem Mathur of the Deccan Airways becomes the first Indian

women commercial pilot.

1953 : Vijaya Lakshmi Pandit became the first woman (and first

Indian) President of the United Nations General Assembly. 1959 : Anna Chandy becomes the first Indian woman judge of a High Court (Kerala High Court). | 1963 : Sucheta Kriplani became the Chief Minister of Uttar Pradesh, the first woman to hold that position in any Indian state. 1966 : Captain Durga Banerjee becomes the first Indian woman | pilot of the state airline, Indian Airlines. 1966 : Kamaladevi Chattopadhyay wins Ramon Magsaysay award for community leadership. 1966

: Indira Gandhi

becomes

the first woman

Prime Minister of

India.

1970 : Kamaljit Sandhu gold in the Asian Games.

becomes

the first Indian woman

to win a

1972 : Kiran Bedi becomes the first female recruit to join the Indian Police Service.

1979 : Mother Teresa wins the Nobel Peace Prize, becoming the first Indian female citizen to do so. 1984 : On 23 May, Bachendri

Pal became

the first Indian woman

to

climb Mount Everest.

1989 : Justice M. Fathima Beevi becomes the first woman Judge of the Supreme Court of India.

1992 : Priya Jhingan becomes the first lady cadet to join the Indian army (later commissioned on 6 March 1993). 1994 : Harita Kaur Deol becomes the first Indian woman Indian Air Force (OAF), on a solo flight.

pilot in the

[PART II

LAWS ON PROTECTION OF WOMEN FROM DOMESTIC VIOLENCE

178

1997

: Kalpana Chawla becomes

the first India-born

woman

to go

into space. 2000

: Karnam

Malleswari

became

the

first

Olympic medal (bronze medal in the 2000 Summer

woman

to

win

an

Olympics at Sydney)

2002 : Lakshmi Sahgal became the first Indian woman to run for the post of President of India. 2004 : Punita Arora became the first woman in the Indian Army to don the highest rank of Lieutenant General. 2007 : Pratibha Patil becomes the first woman President of India. 2009 : Meira Kumar became the first woman Speaker of Lok Sabha, the lower house in Indian Parliament.

Women-First First Woman

President of India

First Woman

Prime Minister of India

In India-In Different Fields Pratibha Patil Indira Gandhi

First Woman Speaker of Parliament

Meira Kumar

First Woman Secretary General of Rajya Sabha

V.S. Rama Devi

First Woman Speaker in Indian State

Shano Devi

First Woman Vice-Chairman of Rajya Sabha

Violet Alva (1962)

First Woman Monarch of Delhi

Razia Sultana (1205-1240)

First Woman Cabinet Minister

Raj Kumari Amrit Kaur

First Woman Governor

Sarojini Naidu UP (1947-49)

First Woman

Vijayalakshmi Pandit (1937)

Minister of India

(pre-independent)

First Woman Chief Minister

Sucheta Kriplani (UP)

First Woman Home Minister

Subitha Indira Reddy

First Woman Foreign Minister

Lakshmi N. Menon

First Woman IPS Officer

Kiran Bedi

First Woman Mayor (Delhi)

Aruna Asaf Ali (1958)

First Woman Chief Secretary

Sailijia Chaudra

First Woman Magistrate appointed in U.K.

Kantha Talwar

First Indian Woman Mayor in U.K.

Lata Patel

First Woman Ambassador

Vijayalakshmi Pandit

First Woman Bharat Ratna

Indira Gandhi (1971)

First Woman Graduates

Kadambini Ganguly and Chandramukhi Basu (1883)

First Woman MBBS

Kadambini Ganguly Bose

First Woman Honour Graduate

Kamini Roy (1886)

First Woman Surgeon

Dr. Prema Mukherjee

First Woman Woman Doctorate in Science

Asima Chatterjee (1944)

First Woman Graduate in Western Medicine

Anandibai Joshi

PART Il}

THE PROTECTION OF WOMEN FROM DOME STIC VIOLENCE ACT, 2005

First Woman Physician

First Woman doctor

First Woman Aviation Medical Specialist First Woman doctor to produce test tube

baby First Woman Judicial Officer (Travancore State )

First Woman Judge of High Court First Woman President of UN General Asse mbly First Woman Lawyer

First Woman Barrister

First Woman Advocate First Woman Supreme Court Judge First Woman Lawyer at Bombay High Court quali fied as Barrister at law from Lincoln’s Inn First Woman Chief Justice of High Court (HP) First Woman Nobel Prize from India

First Woman Lt. General of Indian Army First Woman Officer in Indian Air Force First Woman Air Marshall First Woman Commercial Pilot (Deccan Airways) First Woman Commercial Pilot

First Woman Airline Pilot

Kadambini Ganguli (1886)

Muthulakshmi Padma Bandopadhyay Dr. Indira Hinduja Anna Chandy (1937) Anna Chandy (1959)

Vijayalakshmi Pandit (1953-54 Cornotia Sorabji (1892)

Cornotia Sorabji

Regina Guha M. Fatima Beevi Mithan J. laam

Leila Seth (1991) Mother Teresa

Lt. Gen. Punita Arora Padma Bandhopadhya

Padma Bandhopadhya Prem Mathur (1951) Durba Banerjee (1966) Durba Banerjee

First Woman Air bus Pilot

Durba Banerjee

First Indian Woman in Space

Kalpana Chawla

First Woman National Congress President First Woman to head Wakf Board

Annie Besant

First Woman Grandma Modonna from India First Woman Engine Driver

Asha Bhousle

First Woman Railway Driver

First Woman Engine Driver of Trains in Australia First Woman to Swim across English Channel First Woman film Star to Rajya Sabha

Youngest Indian to Swim English Channel First Woman to scale Mount Everest

179

Bader Sayeed

Dipti Modekar

Surekha Shankar Yadav Manndhir Rajput of Ludhiana (2005) Anita Sood

Nargis Dutta and next is Shabana Azmi Arati Pradhan Bachendri Pal (1984)

First Woman scaled Mount Everest Twice Miss World

Reita Faria in 1966

Miss Universe

Susmita Sen in 1994

Super Model of the World

Bipasa Basu in 1996

Santosh Yadav

180

NCE LAWS ON PROTECTION OF WOMEN FROM DOMESTIC VIOLE

[PART II

Miss India to participate in Miss Universe

Indrani Rahman in 1952

First Miss Universe of new Millennium

Lara Dutta

First Talkies Actress

Zubeida

First Actress in Indian Cinema

Devika Rani

First Woman Producer & Director

Fatima Begum (1926)

directed Bulbul-e-Parashtan

First Woman Chess Grand Master

Koneru Humpy (2002)

International Grand Master Award

Bhagyasri Thipse

First Woman to win a match in Grand Slam

Nirupama Vaidyanathan

Woman to reach 4th round of Grand Slam

Sania Mirza

Woman to win grand Slam Mixed Double First Woman Shuttler to win two Grand Prix

Sania Mirza

Grand Slam Junior Title (doubles)

Sania Mirza

First Indian Woman to reach final in Olympics

P.T. Usha

First Indian Woman to win medal in Olympics

Karnam Malleshwari

First Indian Woman to score century

Shanta Rangaswamy

First Indian Woman Cricketer to score double century

Anjum Chopra

First Indian Woman boxer to win International event

M.C. Merykam

First Test Tube Baby

Harsha, Durga Agarwal, Kruti Parekh

First Indian Woman to ski to South Pole

Reena Kaushal

Saina Nehwal

First Woman co-pilot to fly one of the mightiest and heaviest aircraft of [AF

Veena Saharou of Jaipur

First Indian Woman world’s first woman to fly Russian MIG-35

Suman Shurn of Bangalore

First Woman Pilot in IAF

Haritakaur Deol

First Woman navigator in IAF

Kavita Barala Jan. 19th 2009

First Indian Woman to perform Solo Flight

Haritakaur Deol 1994

First Woman wins Ramon Magsaysay award for Community Leadership

Kamala Devi Chattopadhyay

India’s first Woman

Sunita Sharma

First Woman

Cricket Coach

Kamaljit Sandhy (1970)

Golfer

First Lady Cadet to join Indian Army

Priya Jhingan (1992) (clatter commissioned in 1993)

First Indian Poet who write in English

Toru Dutt (1856-77)

First Indian Woman

Sonal Mansingh

Dancer to receive Padmabhusan

First Indian Woman Sufi Singer

Zila Khan

First Woman singer to perform at Royal Albert Hall, London

Lata Mangeshkar

First Woman in Mainstream Magic

Maneka

PART |i]

THE PROTECTION OF WOMEN FROM DOME STIC VIOLENCE ACT, 2005

First Indian Woman

to receive Lenin Peace Award

First Woman to get Magsaysay Award First Woman

President of Students’ Union

First Woman to receive Norman Boriang Awar d First Woman to get Intl. Grandmaster Award in Chess First Woman Chairman of UPSC First Woman Chairperson of Indian Air Lines First Woman to receive Gyanpeeth Award First Woman to receive Ashok Chakra First Woman Doordarshan Newsreader First Woman Finger Print Expert

First Woman Chairperson of National Woman Commission First Woman Cricketer to get Arjun Award

Aruna Asaf Ali Kiran Bedi

Anju Sachdeva (Delhi University) Dr. Amrita Patel

S. Vijayalakshmi of Indian Airlines Rose Million Mathew

~ Sushma Chawla Asha Purna Devi

Niraja Bhanot (Mishra) Pratima Puri

Sita Vathambal & Bhrangathambal (both sisters) Jayanti Patnayak

D. Edulji (1983)

First Woman to get Arjun Award

N. Lumsden (1961)

First Woman President of Indian Science Congress

Dr. Ashima Chatterjee

First Dy. Governor of RBI

K.J. Udesi

First Woman Sahitya Award Winner

Amrita Pritam

First Woman Chief Engineer

P.K. Tresia Nanguli

First Indian Paratrooper of IAF

Nita Ghose

First Woman Cricketer to get 100 wickets First Indian Actress to be on the Jury of Cannes Internationa l

181

Diana Eduljee Aishwarya Roy

First Indian Woman Vice President of Third World

Organization of Women Scientist

Dr. Kaiser Jamil

Youngest Indian Woman to win Booker Prize

Kiran Desai (age 35) (2006)

First Indian Woman to win Booker prize

Arundhati Roy (1997)

First Indian Woman Saint

Sister Alphonsa (2008)

First Indian Woman Saint Poet

Mira Bai

Highest Paid Executive in India

Naina Lal Kidwai

First Indian Woman Business School

Naina Lal Kidwai (1982)

to Graduate from Harvard

Recipient of The Right Livelihood Award

Ela Bhatt

Most Powerful business woman

Kiran Mazumdar Shaw

First Indian Woman Press Photographer

Homai. Vijarawalla

First Indian Woman to win Gold in Asian Games

Kamaljeet (1970)

First Indian Business Woman to reach 1 billion Net worth

Kiran Mazumdar Shaw (2006)

(PART I

NCE LAWS ON PROTECTION OF WOMEN FROM DOMESTIC VIOLE

182

First Indian Woman to Unfuried the First National Flag

Madam Bhikaji Cama (1907)

in Stuttgart (Germany)

Sophie Chaudhary

First Indian Female Artist to get Youtube Channel Indian Woman winning Oscar for Best Costume Design First Woman

Bhanu Athaiya (1982)

Sauda Bano (started in 1945 with Doordarshan)

Radio Newsreader

First Captain of Indian Women’s Cricket Team

Diana Eduljee (1956)

First TV Newsreader turned Film Actress First Woman Musician to get Bharat Ratna

Smita Patel

First Indian Woman Cause of Animal

M.S. Subbulakshmi

Environmentalist who worked for

Maneka Gandhi

First Indian Novelist bringing Sexual Revolution with her Sensuous Novels

Shobha De

Mother of Herbal Cosmetics

Shahnaz Hussain

Gave Birth to Kitchen Machine Sumeet Mixer

Madhuri Mathur

God Woman

Mata Amritanandamayi Devi

Film Star turned CM

Jayalalitha

First Woman Athletic

Anju Bobby George

First Woman Dacoit

Putli Bai (1950)

India’s Beautiful Bandit

Phulan Devi

India’s First Woman Tabla Maestro

Dr. Aban Mistry

First Indian Woman to Exhibit Paintings at London

Revati Sharma Singh

Four Indian Women in Forbes list of 100 Most Powerful Women in the World:

(1)

Indira Nooyi- currently the Chairperson and Chief Executive Officer (CEO) of Pepsi Co. (No. 3 in World).

(2)

Congress President Sonia Gandhi (No. 21 in World).

(3)

BSP Chief and C.M. of U.P. Mayawati (No. 59 in World).

(4)

Biocon MD Kiran Mazumdar Shaw (No.99 in World).

Four famous Female figures of Vedic India:

Ghosha, Lopamudra, Maitreyi and Gargi

Women Mathematician:

Bhama Srinivasan (1935)

First India Woman

Activist to subscribe to the fund started

Rani Rajwade

to help Indian Passive Resisters in South Africa

NB: This list is not exhaustive though illustrative.

13. India.

Domestic

Violence

NGOs

and

Women

Organizations

in

Sakshi, Delhi. A violence intervention for women and childrenworks on sexual harassment, sexual assault, child sexual abuse and

domestic

violence.

Focuses

on

equality

education

for

judges,

PART II]

THE PROTECTION OF WOMEN FROM DOMESTIC VIOLE NCE ACT, 2005

implementation

of

the

1997

Supreme

Court

Sexual

183

Harassment

Guidelines, outreach and education. B-67 South Extension Part-1, First Floor, New Delhi- 110065. Tel:4643946/4623295.

Women's Rights Initiative runs a pro bono legal aid cell for domestic violence cases and are also associated with law reforms in the area of domestic violence. 63/2, First floor. Masjid Road, Jungpura, New Delhi. Ph:4316925/4313904/432101. Majlis, Bombay. (Flavia, Veena or Saumya)-6180394 Swaadhar, Bombay. (Jyoi Kelkar)-8720638 Vimochana, 2124 16th B MainlI-ACross, HAL IInd Stage, Bangalore-560038. Phone: (city code =80) 5269307. Deals with many women's issues from domestic violence to labour issues. Activities range from counselling, service provision, education and outreach, mobilizing and organizing, activism.

Anweshi Women’s Counselling Centre, near YWCA, Cannanore Road. Kozhikode 673001. Run a counselling, mediation and resource center for women facing any kind of abusive situation. If writing to them, please e1close a self-addressed envelope with sufficient postage. Sachetna,

31, Mahairban

Socio-Legal Aid Terrace, Calcutta.

Road, Calcutta.

Research

Pragatisheel Mahila Manch, Behala, Kolkata 700 061. Swayam, 2803688.

and

Training

11 N. Ho Chi Minh

New Delhi 110014.

Tel: 461-9821 Fax: 462-3681. India National Council of Women

In India

Poona Medical Foundation, Ruby Hall Clinic, PO Box No. 70, Pune-411001

India

Centre for Women’s Development Studies The Library

25 Bhai Vir Singh Marg Gole Market

P-112

Road.

Lake

Sarania.

11 Balu Hakkak Lane, Kolkata 700017. Phone: 2803429:

Joint Women’s Programme- NGOs Delhi CSIRS, 14 Jungpura B, Muthura Road,

40 Sassoon,

Center,

LAWS ON PROTECTION OF WOMEN FROM DOMESTIC VIOLENCE

184

[PART II

New Delhi-110 001

India Tel: +91 11 2334 5530 or +91 11 2336 5541 Fax: +91 11 2334 6044 | E-mail: [email protected] or [email protected] CWDS is a research centre comprised of a group of professionals working for the realization of women’s equality and development in all spheres of life. The centre maintains a specialized library with a collection on women and development in India, open to students, research scholars, gender consultants, policy makers, journalists etc. National Commission of Women

4, Deen Dayal Upadhayaya Marg. New Delhi-110 002

India

All India Coordinating Forum of the Adivasi/Indigenous Peoples (AICAIP) K-14 (First Floor), Green Park Extension New Delhi-110 016 India

Tel: +91

11 26163830 or +91

Fax: +91

11 2619 6640

11 26198042

E-mail: [email protected]

AICAIP was established as a forum for Adivasi/indigenous people's movements all over India. Its objective is to strengthen the process of building solidarity and alliances amongst struggle oriented indigenous people's organizations. AICAIP aims to identify shared issues and problems, to generate debate on these issues and to provide support to help deal with them. One of the five working groups AICAIP has established is focused on Adivasi women

issues. Neither AICAIP nor any

of the organizations it represents concentrates specifically on the dissemination of information. There is also no other Indian indigenous people's organization with this focus.However, exchanging and providing information is part of AICAIP’s work. | Diverse Women

for Diversity

A-60 Hauz Khas

New Delhi-110 016 India

Tel: 0091 Fax: 0091

112656

1868

112656 2093

PARTI]

THE PROTECTION OF WOMEN FROM DOMESTIC VIOLENCE ACT, 2005

Kali For Women B 1/8 Hauz Khas,

lst Floor

New Delhi-110 016, India Telephone: +91-11-26852530 Fax:+91-11-26864497

URL: http://www.peg.apc.org. / ~spinifex/kali.html Women’s

Foundation

L 1-4 Hauz Khas Enclave New Delhi-110 016, India

Centre for Social Research E. 82, Saket New Delhi-110 017 India

Centre for Women’s Development Studies B-43, Panscheel Enclave New Delhi-110 017

India Tel: 11-2643-8428 Saheli: A Women's Organisation 105-108 Shopping Complex, Defence Colony Flyover, New Delhi-110 024. India

Tel: 2461-3681.

Sakhi: Lesbian Organisation

PO Box 3526, Lajpat Nagar, New Delhi-110 024. India Kali for Women (Feminist Publisher) A-36, Gulmohar Park

New Delhi-100 049 India

185

LAWS ON PROTECTION OF WOMEN FROM DOMESTIC VIOLENCE

186

Committee on the Portrayal of Women 4, Bhagwandas Road

(PART I

in the Media

New Delhi-110 001 India Institute of Social Studies Trust M-1, Kanchenjunga 18, Barakhamba

Road

New Delhi-110 001

India

The YWCA of India -NGOs Delhi 10, Sansad Marg, New Delhi-110 001. India

An umbrella organisation affiliate to the World YWCA with 65 local associations in India. The organisation works for women’s empowerment through a variety of programmes, the most important of which are leadership training for women, advocacy work on all women's issues, and community development work. The YWCA also runs 40 women's residences across the country providing housing for working women as well as emergency shelter for women. The YWCA of India is also a part of a network of 7 women's organistions based in Delhi and works together with them

on common

issues.

Center for Women's Studies and Development

Panjab University

Chandigarh-160 014 India Centre for Women's Studies and Development Faculty of Social Sciences Banaras Hindu University Varanasi-221 005 India Social Work and Research Centre:

Network for Self-reliance of the rural poor Tilonia 305 816, Ajmer, Rajasthan, India. Tel:+91 1463 8804 Fax:+91

1463 8806

Email: [email protected]

PART Il]

THE PROTECTION OF WOMEN FROM DOMESTIC VIOLENCE ACT, 2005

187

SEWA (Women and Work) Reception Centre Opp. Victoria Garden Ellisbridge Ahmedabad-380 001 India

Center for Health Education, Training and Nutrition Awareness (CHETNA) Lilavatiben Lalbhai’s Bungalow Civil Camp Road, Shahibaug 380 004 Ahmedabad, Gujarat, India Tel: +91 79 286 8856 or +91 79 286 6695 or +91 79 786 5636 Fax: +91 79 286 6513 E-mail: [email protected] or Indu. [email protected] CHETNA’S mission is to contribute towards the empowerment of disadvantaged women and children to enable them to gain control over their own, their families’ and their communities’ health. Its trainings

target

supervisors,

trainers,

program

Managers

and

practitioners

of

NGOs and GOs. In order to provide a good flow of information, a documentation and information centre has been created . Today CHETNA’s main efforts are aimed at documenting the lives of women and children in India and health issues. The collection contains a special section of training manuals, information kits and modules. Languages: English, Hindi, Gujarati.

Centre for Social Justice: Feminist Support Group 5, Neelkamal Building, Ashram Road, Ahmedabad-380 009 India Tel: +44 6560649/403027 Single Women’s Organisation: Networking organisation Indira, F/7 Sagar Apartments, Behind Doordarhsan, Opp. Sarthi Hotel, Bodak-Dev Road, Ahmedabad-380 054 India Women's

Studies Research Centre

Faculty of Home Science M.S. University of Baroda Baroda-390 002

India

LAWS ON PROTECTION OF WOMEN FROM DOMESTIC VIOLENCE

188

Women

(PART II

and Media Group

Cre B.U.J.

Prospect Chambers, Second Floor D.N. Road

Mumbai-400 001 Maharashtra _ India The Women's Centre of India Nehru Road, Vokola Santa Cruz, Mumbai-400

005

India Women’s

Studies Unit

Tata Institute of Social Sciences

P.O. Box 8313, Sion trombay Road Deonar, Mumbai-400

008

India

The Women's Studies Unit attempts to sensitize students and policy makers about women and development issues by teaching social work students and government employees, by producing teaching materials, consulting various groups about women and development, and by conducting research. Maitreyi

7, Manjiki, Makarand Society Veer Savarkar Marg, Mahim Mumbai-400 016 India

Tel: 45 12 11/45 41 48 The major objective of Maitreyi is to develop a feminist perspective in understanding women’s issues and the women’s movement, and to sensitize

every

one

about

women’s

issues.

Maitreyi

indirectly supports the following activities: Women’s

sponsors

and

studies workshops,

research, documentation, support centers for women in distress, mobilization of women in villages to join Ladies Club, and publication of

books and annual reports. Shreemati Nathibai Damodar Thackersey (SNDT)

Women's

University Library

1 Nathibai Thackersey Road

PART Il]

THE PROTECTION OF WOMEN FROM DOMESTIC VIOLENCE ACT, 2005

189

New Marine Lines Mumbai-400 020 India

Tel: +91 022 207 2792 Fax: +91 022 201 8226 E-mail:sndtulib@bom3, vsnl.net.in SNDT Women’s University was established in 1916 as the first women's university in India. The university library was established in 1955. It houses an information service on women;s studies. The women’s information section of the library caters to researcher s and professors as well as NGOs and activists. The library maintain s an indigenous databases-SUCHAK-containing references to more than 100, 000 title. About 35, 000 of these pertain specifically to women. In recen t years the library has acquired several instructional. bibliographical, and full text databases. Languages: Indian, English. Akshara-

A Women’s Resource Centre Neelambari 501, Road no 86

Off Gokhale Road Dadar West

Mumbai-400 028 India

Tel: +91 22 430 96 or +91 22 431 6082 Fax: +91 22 431 9143 E-mail: [email protected]

Akshara began informally in 1987 as result of the women’s movement and its campaigns in Bombay. It started by producing low cost publications for women’s organizations and activists. In 1995 Akshara received funds to establish a library and reference centre for women.It now has library facilities, offers gender training and workshops, and publishes educational and movement oriented. materials. Languages: English, Marathi. Forum against Oppression of Women 29, Bhatia Bhavan,

|st floor

Babrekar Marg, Dadar, Mumbai-400

028.

Tel. 91-22-422-2436

Email: [email protected] FAOW was formed in 1979 as a platform to an extremely unjust udgment on a rape case. Soon from a Forum against Rape as it Sg sarlier called, it changed its name to the present one to encompass var : d orms of women’s oppression. FAOW is part of what in India is recognised

LAWS ON PROTECTION OF WOMEN FROM DOMESTIC VIOLENCE

190

[PART Il

a crucial role in and the Autonomous Women’s groups which has played onwards}. Today it is this third phase of the women’s movement [late 70's

a campaign mainly background- students,

of members consisting group housewives, professional women,

from_ varied lectureres etc.

puts their The members meet regularly once in a week and every one paid staff. volantary time in the work that needs to be done. There are no Research Center for Women’s Studies S.N.D.T. Women’s University Juhu Road, Santa Cruz

Mumbai-400 049 India

Women’s Studies Unit Tata Institute of Social Sciences Post Box 8318, Sion-Trombay Road, Deonar

Mumbai-400 088 India

Majilis, A-2/4, Golden Valley, Kalina,

Mumbai (Bombay)-400 098 India

Tel:

6180394, 6160252

Majlis is a legal and cultural resource centre working in the area of women and minority rights. The legal centre of Majlis is a group of lawyers providing legalassistance to women. Majlis is also involved in reasearch and documentation on issues concerning women. India Women

Scientist’s Association (IWSA)

IWSA Plot No. 20, Sector

10-A Vashi

Navi Mumbai-400703

India

Tel: 91 22 766 18 06 Fax: 91 22 6204038/4138521. Promote women’s science graduates.

participation in Science.

Centre for Documentation "Kedar"

Meinbership

and Research on Women

open to all

(Aalochana)

PART Ii]

THE PROTECTION OF WOMEN FROM DOME STIC VIOLENCE ACT, 2005

86/11-B Kanchangalli Erandavana Poona-411

004

Maharashtra India

Tel: 212-343563 Anveshi Research Center for Women' s studies Osmania University Campus Hyderabad-500 007 India

Streelekha

67.2f], Blumon, Mahatma Gandhi Rd Bangalore-560 001 India URL:http:// www.peg.apc.org.

/~spinifex/streelekha.html

Bangalore Joint Women’s Programme 73 Miller’sRoad, Benson Town, PO Box 4600, Bangalore-560 046. India

Tel: 080 333335. Center for Informal Education and Development Studies No. 7, Balaji Layout Wheeler Road Extension

Bangalore-560 084 India

St. Ignatius Social Centre Probhat Nagar, Honavar

P.O. UK (Dt) Karnataka, India-581 334

Working Women’s Forum 55 Bhimsena Garden Road Madras-600 004 Tamil Nadu

191

NCE LAWS ON PROTECTION OF WOMEN FROM DOMESTIC VIOLE

192

India

Tel: 44-744553 or (9144) 4993937 or 4992853 Fax: 44-944444 or (9144) 4992853 Association of unorgnised or Informal women workers. Madras Women’s Indian Association

Indian Council for World Affairs, 43 Greenways Madras-600 028 India

Mother Teresa Women’s University 13 Race Course Road Guindy Madras-600 032

India

Sisters, For polycultural lesbians. PO Box 26, Tambaram, Madras-600 059 India Martec Center for the Advancement 25 Cathedral Road Madras Tamil Nadu-600086 India

Centre for Development Studies Ulloor Trivandrum

Kerala State-695 011 India

Women's Research Centre P-595, Puma

Das Road

Kolkata-700 019

India

Joint Women’s Programme

16 Elgin Road, Kolkata-700 020. India Tel: 033-749945

of Women

[PART I

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193

Streelakha (Feminist Publisher) 16 Southem Avenue Kolkata-700 026

Sanhita Gender Resource Cen tre 89B Raja Basanta Roy Road Kolkata-700 029 India

Tel: +9133466 2150 or +91 33 463 1430 Fax: +91 33 473 0687 or +91 33 473 5619 Sanhita, an initiative of women acti vists in West Bengal, was born out of a need for information activism and networking among grassroots organizations working towards the empowerment of women. Sanhita aims to increase women’s access to info rmation. Sanhita conducts gender trainings, publishes, provides a referral service, and produces advocacy material. Sanhita also collects processe s, and disseminates information through action research programs and by means of a library and documentation centre.

Joint Women’s Programme JWP No. 15 Ramalinga Nagar, Old Mahaba lipuram Road, Kottivakkam, Thiruvanmiyur, Madras-80 0 041. India Unsorted/Incomplete Asmita ("identity") Resource Center for Wom en Consciousness-raising for women in rural area s. Road 2, West Maredpalli Sikandrabad, Andhra Pradesh, India. Tel: +40780 3745 Fax: +40841 697. Jagori:

A Women’s Organisation

C-54 South Extension, India

Part Two, New Delhi.

Tel: 26427015

National Commission 17, Mahadev

Road,

New Delhi, India

Tel: 91-11-332-6103 Fax: 91-11-332-5747

for Women

VIOLENCE LAWS ON PROTECTION OF WOMEN FROM DOMESTIC

194

[PART Il

National Federation of Indian Women 210 Jorbagh New Delhi

India

Research Institute for Women, Casal Gracias-86

Goa

Altinho-Panji India

Tel:+91 230 538

E-mail:[email protected] Sanlaap Women’s Resource Center c/o Sengupta

89b Raja Basanta Roy Road Kolkata-700 029 India Tibetan Women’s Association

Mcleodganj Dharamsala, HP India

Tel:91-1892-2527 Fax:91-1892-4213

14. Victim of violence in family.—The largest proportion of global Violence is domestic. It is an admitted fact that in order to eradicate spousal abuse, long term changes are needed in the fabric of society because violence begets violence. No one knows for sure why young women are abused but one possibility among boys in the image of masculinity to show that he is a man. At the same time, a young woman who is getting into her first serious relationship may carry her own set of vulnerabilities. It is not enough to know what is spousal abuse, we need to understand the characteristics of abusers and how it starts.

During the past few decades, there had been increase in violence against women in different countries. The domestic violence has reached the top by leaving all other forms of violence for behind. Such violence has become such an issue which needs definite solution. when trying to find the solution to this problem, better opportunities for bringing this problem to the attention of the society can be treated by creating a public opinion on this matter with the participation of both men and women and increasing the awareness of this problem in the society. It is not merely a problem relating to women, but the society as a whole which

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THE PROTECTION OF WOMEN FROM DOME STIC VIOLENCE ACT, 2005

involves a women at large. It is an imp ortant human, problem.

195

social and political

Domestic violence has forced the wom en to manta in submissive social status. Men use domestic violence to suppress the independence of women and maintain their pride and ego. It is also unfortunate that society lacks the requisite concern over much issues and no steps taken to prevent violence which has become a common feature in both rich and poor.

The police give less recognition to comp laints made by women subjected to domestic violence rather ridicule such reports by Saying that it is a "private" matter in which they are not supposed to interfere. Even with the enactment of legislation. In United Nation's World Conference on Wome n, held in Beijing, Chine in 1995, 189 Governments including Sri Lanka gave a sobern premise to take action to prevent all sorts of viole nce committed against women, now 18 years have elapsed since the said Conference, but still it is a matter of concern that domestic status of a woma n has under gone no improvement at all. In the countries like Jord an, Pakistan, Peru, Russia, South Africa and U.S.A, which are geograph ically, economically and culturally different from each other, the violence against women has gradually increased. In India the situation Is much more alarming beyond the statistical records, since only few cases of domestic violence are reported to the police. Most women today live in patriarchal societies. Quite simply this means mst women today live in societies where men have both higher Status and power over them. If women are aware of this, the question is why do we allow it to continue? To answer that question it is necessary to realize that societies do not become patriarchal over night . By looking at socio-cultural explanations we can see how our culture, influences and reinforces male dominance in societies. Three major Socio-cultural explanations are historic creation of male dominance, the teaching of male dominance and female submission by our culture, and gender roles and stereotypes that reinforce male dominance. Patriarchy is a historic creation that too years to develop. Male

dominance is a historic phenomenon in that it arose out of a biologically determined

situation

and

became

a culturally

created,

and

enforced

structure over time. Socio-cultural explanations emphasize how rendered power relations are embedded in culture and passed on socially. Every culture has different expectations for male and female behaviour. In many cultures spousal abuse is not merely accepted but embedded in their culture. Culture teaches male domination and female submission. In ultimate analysis the "spousal abuse " is crime of secrecy and there are always good explanations to be offered. In fact spousal abuse is all about power and control. Men independent, aggressive, dominant,

unemotional,

rude,

progressive

are perceived to be autocratic, active, adventurous, courageous, and wise. In contrast, the women are

LAWS ON PROTECTION OF WOMEN FROM DOMESTIC VIOLENCE

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[PART Il

fearful, weak, emotional, submissive, perceived to be dependent, sensitive, affectionate, dreamy and superstitious. se No research on violence against women can be complete becau datas there is a feeling that it puts the women at risk. Most of the em available are just unreliable. Debates regarding magnitude of the probl of is under-recorded and under- reported. On the other hand-shame fear or reprisal, lack of information about legal rights, lack of confidence in to fear of legal system and legal costs involved make women reluctant report incidents of violence. Within domestic the domain of violence, which takes place in the context of a close relationship, there are three main types. First, there is physical violence such as battering, hitting, burning, slapping, murder, honour killing and crimes of passion. The second type is sexual abuse, such as female genital mutilation, incest, enforced prostitution and forced sex. The third type is psychological abuse, such as criticism, humiliation, threats and verbal abuse, the destruction of personal belongings and accusations of mental illness. Sexual harassment in the workplace is also a violation of the right of a woman to work in a safe and healthy environment. Equality in in employment can be seriously impaired when women are subjected to gender-specific violence, such as sexual harassment at the workplace. Sexual harassment is also a tool to discourage women who may be seen to be competing for power at work.

Domestic violence is usually regarded as a private family affair. Sexual harassment is sometimes justified as being a form of flirting that women like. There are three kinds of obstacles that make addressing domestic and sexual violence difficult:lack of reliable statistics and data; lack of effective legislation; and lack of sufficient good quality services for victims and survivors of violence. Statistics on gender-based violence—Compiling reliable statistics on gender-based violence is often difficult. It is frequently regarded as a "private"affair. Data and information, however, should be complete, accurate and current on the prevalence and incidence of violence and its various manifestations. Without data effective and comprehensive strategy to combat violence against women can be developed or implemented. Domestic violence is a complex problem that will work in all situations. The violence different social contexts and the degree to community will naturally influence the kind

and there is no one strategy may take place within a very which it is sanctioned by a of strategy needed.

Spousal abuse can occur in many different way. You do not have to be beaten up to the abused. Forms of abuse are normally grouped into four categories: (a)

Physical abuse;

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(b) (c)

197

psychological or emotional abuse; sexual abuse:

(dq) financial abuse. 15. Basic issues concerning women.— The following are the basic issues concerning women: (a) Poverty and deprivation: (b) Participation in decision making process; (c) Access to justice; (d) Discriminatory personal laws: (e) Violence of both state and non-state actors:

(f) Declining sex ratio; (g) Lack of social security. Psychological or Emotional Abuse : Psychologi cal abuse can include threats, constant criticism and put downs, control of activities, humiliation, name calling, screaming at a person, ignoring a person, control of money (also considered financial abuse), stalking, damaging property, threatening to have someone deported, and reading another person's mail. Some aspects of psychological abuse are also crimes. Sexual Abuse also referred to as Marital Rape : Wife rape is the term used to describe sexual acts committed without a perso n’s consent and/or against a person’s will, when the perpetrator is the spouse or former spouse. The sexual acts may be accomplished agains t a person's will by physical force or by threats of force to themselves or a third person. Implied harm based on prior assaults which cause s the victim to fear that physical force will be used if they resist is also considered sexual abuse. David Finkelhor, National Family Research Laboratory, New Hampshire states, "When you're raped by a stranger, you have to live with a frightening nightmare. When you're raped by your husband, you have to live with your rapist" Despite the prevalence of marital rape, as a society we did not acknowledge that rape in marriage could even occur until the 1970's. According to research, "It appears that marital rape is most likely to occur in relationships characterized by other forms of violence. This has

led some researchers to argue that marital rape is just one extension of domestic violence". : Researchers generally categorize marital rape in to three types: *

Force-only rape: The husband necessary to coerce their wives.

uses

only

the

amount

of force

* Battering rape: Husbands rape and batter their wives. The battering may happen concurrently or before or after the sexual assault. ¢ Sadistic/obsessive rape: Husbands use torture or perverse sexual acts. Pornography is often involved.

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[PART Il

Women are at high risk for being raped by their partners under the following circumstances (Russell, 1990): * Women married to domineering men who view them as “property”. ¢ Women who are in physically violent relationships. Domestic violence : Violence against women in the family occurs in developed and developing countries alike. It has long been considered a private matter by bystanders--including neighbors, the community and Government. But such private matters have a tendency to become public tragedies, Traditional practices : In many countries, women fall victim to traditional practices that violate their human rights. The persistence of the problem has much to do with the fact that most of these physically and psychologically harmful customs are deeply rooted in the tradition and culture of society.

Female genital mutilation : According to the World Health Organization, 85 million to 115 million girls and women in the population have undergone some form of female genital mutilation and suffer from its adverse health effects. Son preference : Son preference affects women in many countries, particularly in Asia. Its consequences can be anything from foetal or female infanticide to neglect of the girl child over her brother in terms of such essential needs as nutrition, basic health care and education. In India, some women choose to terminate their pregnancies when expecting daughters but carry their pregnancies to term when expecting sons. Accorcing to reports from India, genetic testing for sex selection has become a booming business, especially in the country’s northern regions. Indian gender-detection clinics drew protests from women's groups after the appearance of advertisements suggesting that it was better to spend S 38 now to terminate a female foetus than $ 3,800 later on her dowry. A study of amniocentesis procedures conducted in a large Bombay hospital found that 95.5 per cent of foetuses identified as female were aborted compared with a far smaller percentage of male foetuses. Dowry-related violence and early marriage : Dowry is the greatest crime against women. ‘Are our daughters and sisters for sale? Women are virtually sold into the marriage market. Huge dowries are still

demanded even when the girl can supplement the man’s income. In such a milieu, a woman enjoys no rights because she is a woman. In some countries, weddings are preceded by the payment of dowry by the bride's family. Failure to pay the dowry can In India, an average of five women a day is burned disputes and many more cases are never reported. especially without the consent of the girl, is another rights violence. Early marriage followed by multiple effect the health of women for life.

an agreed-upon lead to violence. in dowry-related Early marriage, form of human pregnancies can

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199

Violence in the community Rape : Rape is a weapon to subjugate women. The woman is safe nowhere. Justice prides herself on being blind to everything but the truth-yet as far as rape is concerned; the facts paint a different picture. Rape can occur any where, even in the family, where it can take the form of marital rape or incest. It occurs in the community, where a woman can fall prey to any abuser. It also occurs in situations of armed conflict and in refugee camps.

Sexual assault within marriage : In many countries sexual assault by a husband on his wife is not considered to be a crime : a wife is expected to submit. It is thus very difficult in practice for a woman to prove that sexual assault has occurred unless she can demonstrate serious injury.

Sexual harassment : Sexual harassment in the workplace is a growing concern for women. Employers abuse their authority to seek sexual favours from their female co-workers or subordinates, sometimes promising promotions or other forms of career advancement or simply creating an untenable and hostile work environment. Women who refuse to give in to such unwanted sexual advances often run the risk of anything from demotion to dismissal. But in recent years more women have been coming forward to report such practices. Some taking their cases to Court. In a significant judgment of Vishakha v. State of Rajasthan, the Supreme Court laid down exhaustive guidelines for preventing sexual Harassment of working women in their place of work until legislation is enacted for this purpose. Prostitution and trafficking : Many women are forced into prostitution either by their parents, husbands or boyfriends or as a result of the difficult economic and social conditions in which they find themselves. They are also lured into prostitution, sometimes by'mail-order bride" agencies that promise to find them a husband or a job in a foreign country. As a result, they very often find themselves illegally confined in brothels in slavery-like conditions where they are physically abused and their passports withheld. Most women initially victimized by sexual traffickers have little inkling of what awaits them. They generally get a very small percentage of what the custumer pays to the pimp or the brothel owner. Once they are caught up in the system there is practically no way out, and they find themselves in a very vulnerable situation. Since prostitution is illegal in many countries, it is difficult for prostitutes to come forward and ask for protection if they become victims of rape or want to escape from brothels. Customers, on the other hand, are rarely the object of penal laws.

Pornography : Another concern highlighted is pornography, which represents a form of violence against women that “glamorizes the degradation and maltreatment of women and asserts their subordinate function as mere receptacles for male lust’. Custodial violence against women : Violence against women by

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LAWS ON PROTECTION OF WOMEN FROM DOMESTIC VIOLENCE

[PART Il

the very people who are supposed to protect them—members of the law enforcement and criminal justice systems is widespread. Women are physically or verbally abused ; they also suffer sexual and physical torture. According to Amnesty International, thousands of women held in custody are routinely raped in police detention centre worldwide. 16. What is violence against women.—Violence against women is a manifestation of historically unequal power relations between men and women, which have led to domination and discrimination against women by men and to the prevention of the full advancement of women. It is a global epidemic that wills tortures and maims physically, psychologically, sexually and economically. One of the most pervasive of human right violations, denying women and girls equality, security, dignity, self worth and their right to enjoy fundamental rights and fundamental freedoms. It dominates every country, cutting across boundaries of culture, class, education, income, ethnicity, religion, economic condition, status and age. It is often result of mis-interpretation of religious tenets and cultural practices.

The violation takes place within the home, as is very often the cases, the abuse is condoned by the victim herself by her silence. No society can claim to be free from such violence, the only variation is in the patterns, trends, frequency and enormity, since it is must prevalent but hidden and ignored. The expression "domestic"refers to the types of relationships involved rather than the place where the violent act occurs. The magnitude of domestic violence underscored though its universality and its impact on the women and girls are not unknown. Domestic violence is not just screams in the night. It is not just something that happens in bad neighbourhoods. The domestic violence in the form of spousal abuse is abort power and control. It is a deliberate attempt by a partner in an intimate relationship to control or intimidate the other partner. Across all studies, there is nothing about a woman's personality, about the way she was brought up or about her living conditions that makes one woman more likely than another or stay in an abusive relationship. The only consistent risk factor for being abused is gender. That is, being a woman. Reality is that even if you are not one of the woman or men has been a victim of spousal abuse you may feel the sting of it any way. Domestic violence is not just hitting or fighting, or an argument, it is abuse of power. The abuser tortures and controls the victim by calculated threats, intimidation and physical violence.

17. How to eradicate this overwhelming problem.—Experts and victims alike agree that nothing short of a societal overhaul is going to eradicate this overwhelming problem. One thing is clear, if we want to stop spousal abuse we have to cut it off at the roots. That means starting education on what constitutes abuse early. We can’t wait until people are already in abusive relationships, we have to teach them how to avoid abusive relationships. Clearly the first step that has to be taken if spousal abuse is going to be eliminated is to educate women in every culture.

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It is essential that everyone be educated on Spousal abuse. Treating women politely will be possible, If the change of the behaviour as well as recognition of women as equal human will be undertaken. So to escape

change the Society, you need to cha nge the approach and behaviour of the people to be able to pursue them for accepting the Change. Watch a gradual seen is experienced every year and the situation is improving. As many countries have drafted laws regarding the Violence against Women. But still lot to do in this regards. In this connection the NGO can play a vital role because they are working with Community and they can pursue the Community to resist and raise violence against injustice if it prev ails in any apart of the World. How to Resist Violence against Women: Recommendations: After discussion on the Following Recomm endations are made to resist Violence against Women : 1. Firstly we have to create awarenes s among the masses regarding the Human Rights and specially Women Rights so that they consider the women as equal to male and the rights of the women can be saved. 2. Secondly, the UNO must make it obligatory upon the countries that they should draft such laws which may to help eliminate Violence against Women. 3. Thirdly the Community plays a majo r part to bring revolutionary changes in the society and make it on the right Track. They can mobilize the People and share their knowledge with the and even pursue them to reali ze the Rights and Status of Women. This will create an Environment which will be very suitable for the Women to work Independently like other people and will not have any sort of fear or feeling of insecurity. 4. Fourthly, all above recommendation will prove useful if the Education is providing to the Masses. The more educated the masses

be, the More Understanding will develop.

Conclusion : In nutshell, The Violence against Women is Global ssue which can eradicate with Joint effort with the Community

[PART II

LAWS ON PROTECTION OF WOMEN FROM DOMESTIC VIOLENCE

202

Participation. As it is related with change the behaviour of the people.

Human

Behaviour

so we

need

to

a matter of 19. Why to accept violence against women as and girls either course.—The acceptance of violence against women s that violence. explicitly or tacitly—creates of impurity, which perpetuate individuals The family is often equated with sanctuary—a place where that it is seek love, safety, security and shelter. But the evidence shows ic forms also a place that imperils lives and breeds same of the most drast tic of violence perpetrate against women and girls. Violence in the domes in sphere is usually perpetrated by males who are, or who have been, rs, position of trust and intimacy and power—husband, boy friends, fathe ves. fathers-in-law, step fathers, brothers, uncles, sons or other relati Such violence is perpetrated by men against women. Though, it is correct that a woman can also be violent, but their actions account for a small percentage of domestic violence. Violence against women is cycle of abuse that manifests itself in many terms and stages of life, like—pre-birth (sex selective abortion; effects of battering during pregnancy on birth out comes); in fancy (female infanticide; physical, sexual and psychological abuse); girlhood (child marriage; female genital mutilation; physical, and prostitution child incest, abuse, and _ psychological sexual pornography); adolescence and adulthood (dating and Courtship violence, economically coerced sex, sex with "sugar daddies, incest, sexual abuse in the school, college, workshop, rape, sexual harassment, forced prostitution and pornography, trafficking in women, partner violence, marital rape, dowry abuse, psychological abuse, forced pregnancy, abuse of women with disabilities! Elderly (forced suicide or homicide of widows for economic reasons, sexual, physical and psychological abuse). Even at the very beginning of the life, a girl may be the target of sex selective abortion or female in fanticide in cultures where non-preference is prevalent. During childhood, violence against girls may include enforced malnutrition, lack of access to medical care and education, incest, female genital mutilation, early marriage and forced prostitution or bonded labour. Some go on to suffer throughout their adult life—battered, raped and even murdered at the hands of intimate partners. Other crimes of violence against women include forced pregnancy,

such

abortion

as dowry

or sterilization

related violence,

and

harmful

traditional

sati (the burning

funeral pyre of her husband), killings in the name

of a widow

practices

on the

of honour. And in late

life, widows do suffer immensely, and often forced to prostitution. Such widows in same communities are also forced to accept prostitution or

subjected to violation forcing them to follow certain religious (so called) sanctions.

20. Loop holes in the holes in the 2005 legislation:

(a)

enactment.—The

following

are

the loop

Its implementation in strict consonance with the objects and legislative intendment, is a still a question mark;

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203

(b) The marital rape and sexual torture with in the marriage is not fully protected: (c) In the garb of providing protection, this legis lation in fact. strikes at the very foundation of marriage by promoting intolerance and encouraging unnecessary litigation even for petty domestic disputes. The law is based on a total ly wrong notion and assumes men as the sole perpetra tors of domestic violence. This is altogether a wrong impr ession and only confirms the gender bias in favor of wome n created by this law. "Giving of such Sweeping legal powe rs to women while with holding protection to male victi ms is tantamount to systematic legal victimization of men". The law is wholly gender specific and rules out any possibilit y of domestic violence against a man. The law confers rights in a woman without imposing any liability, while a man is overburdened with discriminative liabilities with total denial of rights. The slack drafting of this law will allow women to teach a lesson to any of her male relative at her sole behest. Moreover any such frivolous claims will be treated as words of god or gospel of truth by virtue of this law. This has virtually empowered all women to punish men at their will. This law not only recognizes but also gives legal sanctions to apprehensions no matter how insignificant and fuzzy, they are. The mere belief of a person, even a stranger, will be sufficient for reporting the matter to the protection officers. The arbitrary decision of the police to favour the daughter-in-law is a new found ethic, to protect the rights and liberalization of women, even though it violates the principles of natural justice. A bizarre aspect of this Act is that it does not distinguish between actual abuse and threat of abuse and gives equal weightage to even a likelihood of abuse. Also in regards to the notion of "emotional abuse, insults and verbal abuse’ enshrined in the Act, the terms in itself are extremely relative and subjective, often depending on one’s mindset and shockingly, the husband does not have any recourse in

case of any abuse by the wife. Unlike other women protection laws, the Act almost gives a legal sanction under the guise of economic abuse. Refusal to pay any sum of money for what so ever reason will attract the provisions of this law. Non-payment of rental related to the shared household will also constitute economic abuse even if the husband himself is devoid of sufficient resources or even if he is in jail. Another pertinent laxity that can be pointed out as also recently reiterated by the

Supreme

Court

is

that

the

definition

of'shared

household"as mentioned in the Act is vague and laid that the parents independent property in which the husband

204

LAWS ON PROTECTION OF WOMEN FROM DOMESTIC VIOLENCE

[PART II

does not have any share will not amount to “shared household". Another substantiation of the Act being unreasonable and excessive is that in relation to the right residence wherein

by including

the divorced

wives,

former

girlfriends

and

former live- in Partners in the list of women facing domestic violence, this Act gives enough leeway to women to harass to women to harass innocent men and turn the heat on their former partners. The Act almost gives a legal sanction to any relationship, which is not at all socially acceptable like the live-in

relationship. In addition to this the respondent is totally

deprived of his legitimate cannot alienate or dispose Act. On the contrary there to arrange for an alternate for the same.

(e) Another

certain

home

that as consanguinity

rights over his property as he if an order is passed under the is an added liability on his part accommodation or pay the rent

breaking implication is a necessary

of this Act is

aspect of marriage,

and as matter of fact a ground for separation under the marriage laws, one of the provisions of this Act bars the husbands from even asking, leave apart pressurizing, their wives for sex. Another perturbing feature is that as a protective measure or more so a biased feature conferred by this Act in the form of prohibition of any sort of communication to be made by the husband if there is a prima facie case. An unusual oddity in this enactment is that the Magistrate has been entrusted with unaccountable power as he is invested with the responsibility to take cognizance of the case and also for executing his own orders in favour of the aggrieved women even without being approached for their execution. An additional ‘disturbing aspect is that the Magistrate trying the case is required to evaluate not the individual incidence of violence, but the overall circumstances as well. (g) The major inappropriate implication would be that it would play down the chances of reconciliation in future. On one hand the Act punishes a man for forcing her wife to leave job while on other it provides maintenance to the very same wife. But the law does not provide for any such remedy to male in any similar circumstance. (h) All the provisions of this Act, however, do not serve the purpose of effective implementation sometimes due to a lack of resources or due to extraneous factors. Section12 (4), for example, is a laudable provision, which makes it mandatory for the Magistrate to hear a case within threé days of the complaint being filed. The idea of prompt relief

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is carried on in Section 12(5), which dire cts the Magistrate to finish hearing the case within six mon ths of it reaching Court. However, the overcrowding of Cour ts makes it difficult to see if they can be practically real ized. () A further criticism of the Act is with resp ect to Section 14, which may prescribe counseling for eithe r of the parties, and delay proceedings up to two months. Addressal of domestic violence has always tended to focus on conciliation between the perpetrator and the victim, even within the criminal justice system. This is due to the judicial perceptions regarding the importance of preserving the family unit, even to the jeopardy of a victim of domestic violence. In recognition of this fact. a provision such as S. 14 can be counterproductive in two ways. Firstly, it might jeopardize speedy disposal of the case, and secondly , it may also convince the aggrieved to continue in that situ ation without taking any further action. (k) The Act has been criticized as not being gender neutr al and "abused men" not covered. Moreover it is likely to be abuse d by women and their family members during family disputes. An equal gender law is always ideal. It was said that "this Act will not hit good hobbies" but then who will define "good hobbies". The broad definition of "verbal abuse" is also much criticized. Another disquieting trend had been that women themselves at times, played an unsavory catalytic role in perpetrating violence whether against the daughter-in-law, the mother-in-law or female domestic helps. Instances are also there that protective legal provisions for the benefit of the women have been subjected to distortion and misuse to wreak petty vengeance to settle scores. Ending violence against women and girls is not merely the responsibility of the State but extends to everyone. It needs action at all levels, collectively and individually, to secure gender equality for women and girls and to end the complacency which so often accompanies violence against them in the private sphere, allowing it to be seen as culturally acceptable or as inevitable. It is necessary to support and sustain a political and social environment in which violence against women and girls is not tolerated —an environment in which friends. family members and neighbours, men and women together, will interfere to ensure that no perpetrators go unpunished, when by no mearis the perpetrations can be put to senses. Public discussions of violence, particularly with men and boys, can help to foster the recognition that violence is a violation of the rights of women and girls. Such a recognition can lead to a broader commitment to ensure that accountability for violence against women receives priority attention,

and

impurity

is ended.

and political will to effect change.

Unless

there are sufficient

resources

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result in Witnessing and experiencing violence as a child can also who witness internalizing violence as a form of conflict resolution girls nce as the their mother being abused may be more likely to accept viole t homes. Not norm in the marriage than those who came from non-violen such all children who grow up violent but majority of the children from home. homes engage in violent behaviour both inside and outside the or lives in a (a) In cases where the woman is married, relationship that is in the nature of marriage, she can also file a complaint against the male or female relatives of the husband/male partner who have reportedly perpetrated the violence. It is possible to have orders passed against the relief of However, female relatives of the husband. dispossession against a female relative cannot be granted according to the Section 19(1) which states that no order under Section 19(1)(b) directing the respondent to remove himself from the shared household can be passed against any

person

who

is a woman.

The

aggrieved

woman

may

obtain a protection order against the female relatives of the husband or the male partners. (b) A mother-in-law cannot file an application against her daughter-in-law (Section 2(q)). However in cases where a mother-in-law is facing violence at the hands of her daughter-in-law she can not ask for removal of the daughter-in-law from the shared household. This act is essentially anti-male in nature and can be applied against males only. It cannot be applied against any female. Even Supreme Court has mentioned that the definition of ‘shared household’ in Section 2(s) of the Act is not very happily worded, and appears to be the result of clumsy drafting. (c) This act provides a windfall of relief like protection order, residential order, monetary relief etc. to the female petitioner against a male petitioner. The proof will be tested on the balance of probabilities and proof beyond reasonable doubt is not required. Only the statement of the woman and circumstantial evidence is considered to arrive at a conclusion on the facts of he case. Even a man can evicted

out of his own residence without having adequate right to defend himself. Insults, ridicule, humiliation, name calling by a male against a female have been termed as verbal and emotional abuse. Even though females are well capable of doing the same against male, such actions against a male would not be termed as verbal and emotional abuse and there is no provision for relief for the males facing such abuse under this law.

(e)

If a male deprives a female from household necessities or payment of rental related to the shared household then it would amount to economic abuse. It does not consider that

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the man may be having a severe financial crisi s. However, it does not consider it to be an economic abus e if a female takes away the money from a male without his permission. It is absolutely one- sided. Even disposal of household effects in which the aggrieved person has an interest or is entitled to use by virtu e of the domestic relationship has been considered as an economic abuse. However, if the wife sells any household item even if it was not purchased by her, then the same would not be considered as any kind of abuse. (g) Under this act a wife can restrain a husband, who creates nuisance, from entering their home, irrespective of who owns the house. This act places a woman's personal rights Over proprietary interest. However if the wife creat es nuisance or sleeps with another man then her husband would not be able to restrain her from entering their home. The rights of the wife are only upheld under this act disregarding then interests or well being of the husband. (h) A bare perusal of Section 3 of the Act clearly reveals that the law recognizes the right of women to the finances of the husband, as well as, economic right of having the Stridhan and the right to be maintained by the husband. However. no such right of husband to the finances of the wife has been recognized by this act. The residential orders that can be passed under this act can restrain the male from renting out or selling his own property. It can also evict the male from his own house. How can a man be derived of his legitimate rights over his own property? How fair is it to evict a man from his own home? If this kind of situation continues then men with property would not marry and go for one- night stands. ()) Also there is ample scope to misuse the provision for residential order under this act. Any women can start live-in- relationship with a man. Then she can file for a residential order under Domestic Violence Act and evict the man from his own house and secure her right to reside in the

property

owned

by

the

man.

Any

man

sharing

a

household with women is at a risk of being dispossessed of his property under this act. (k) The monetary relief under this act is meant to be consistent with the standards of living of the female. But if a wife is not living with her husband and not. performing any household duties for her husband then why should she be entitled to monetary relief to maintain same standard of living at the cost of hard earned money of her husband? of any _ kind with She privileges is only getting responsibilities. Providing custody orders in favour of wife through this act

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without proper trial would devastate the husband emotionally. The child would also loose access to his father. This is the beginning of the breaking up of traditional Indian families.

(m) The Act does not make any exception in favour of those who are physically challenged. The Act recognizes the right of a women to be maintained even from a physically challenged husband. Moreover, right of a woman.

poverty is not a defence

against

the

Under Section 32 of this act for an alleged violation of Protection Order the offence is cognizable and non-bailable. Under the sole testimony of a female the Court may conclude that the offence has taken place and can sentence the man for imprisonment or fine or both. No other proof is required. If the female says that a violation of Protection Order has taken place, then the Court would consider that a violation of Protection Order has taken place. This means the man might not get a chance to defend himself in the Court of Law. This is absolutely a draconian provision under this act. What would happen if the female lies in front of the Court? There is no provision to cross examine her statement. There must be adequate checks and balances within every act. (0) By contrast, the Indian Domestic Violence Act specifically and clearly exclupates women from being prosecuted as the principal accused of Domestic Violence, excepting mothers, sisters, etc. of the accused man being prosecuted as abettors etc., and also specifically provides that the prescribed reliefs, such as maintenance, restraining orders, can be obtained ONLY by a woman and NEVER against a (n)

woman! The provisions set out in the Indian Domestic Violence are

totally biased,

and work,

not to protect the institution of

marriage and families, but to break marriages and families,

(p)

giving ample opportunities for misuse, measures provided for. Under these legislations, the indirect

with

no

remedial

sufferers will be women in majority of the cases, as daughters-in-law file case against husbands, mothers-in-law and sisters-in-law. (q) According to these legislation, the following is a list of women’s rights: 1. The right to control and subjugate the male partner 2. The right to publicly humiliate and physically abuse the male partner and his entire family 3. The right to divest the male partner of all his mone y and property

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The right to jail on 5. The right family 6. The right her will 7.

209

to send the male partner and his entire family her whims and fancies to force the male partner to be a slave to her

to kick out the male partner from HIS house at

The right to commit adultery (and send the male partner

to jail if he dares object) 8. The right to kill an unborn child regardless of the male’s

partner's wishes 9. The right to have all "rights" and no responsibilities. Some of the reasons why some women may file Police Complaints under these legislations:

Possessive and suspicious; self-centered and feels the need to dominate the relationship and every aspect of decision-making; used to living beyond her means;from a middle class family and married a man who was wealthier than herself; some political connections; a control freak; father is hen-pecked and her mother dominates her family; listens to and acts in accordance with her parents’ wishes at all times; lacks discretion in dealing with her married life; wants to alienate her husband's affection from his parents and siblings; wishes her husband to abandon his aged parents; hypersensitive; opposes every word of her husband, his parents, siblings, etc.; wishes to blackmail and intimidate her husband, his parents and siblings to fulfill her unreasonable demands; does not wish to adjust to or with the husband's family or take on any domestic responsibilities; suffering from pre-existing mental problems. 21. Way the women is abused.—Not all men are abusive. Those that are have had the problem for a very long while. They are chameleons

and when you meet them you would never guess that they have an abusive nature until you fall in love and start seeing more of them and then the signs gradually creep up in a sneaky way. Even chameleons have to change their colors every so often and can’t constantly fake it. Women are considered the weaker sex, but really aren't. Yes, men are stronger, but women can stand up to most men if she is independent in herself and not afraid to walk out that door or refuse to take any sort of abuse. T does not make the abused women in our society weak or frail. Women are romantics while some men can take full advantage of this and use the woman, or abusive men can catch these types of women in their web of insecurities and violence. None of us know when we first meet someone and if they are abusive until we are totally involved. Many women will leave their abusive mate, but some stay out of fear, sometimes because of the brain-washing the abuser has accomplished with her, or the fear of losing any children she may have with her abuser (they will often use the children against the women to gain more control.) The bottom

line is, men

and women

have total control of their own

and we can all form the words "no" and move on.

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[PART II

An abuser in the beginning appears nice, fun and like he really "gets

you". You feel good around him. He makes you feel "chosen" and "special". Little does the victim know is that the abuser has w work pretty hard at this stage to hide his true colors. If he was too show the

women his true colors this early on, most women would dump him as there is little emotional connection. He feels you are hooked in enough to begin his destruction. It will start off small. Such as comments meant to confuse, destabilize or insult. He may do this in a way that keeps her guessing such as "did he really mean what he said to be rude"? As time goes on, you will notice one day he gets very mad and/or very withdrawn. When you ask him about it, you are blamed. He may take some blame but he may also slip into the conversation that you are also at fault. He may become jealous and paranoid you are going to leave. He may follow you without you knowing it. He may argue with you on the phone and begin the silent treatment. He may start to make you feel like you are nothing. Insulting your friends, clothes, beliefs, employment, recreational activities. He then will go from lashing out to being very nice. He is afraid you may finally say to hell with this and leave. Therefore he gotta provide that hook. He turns nice again. Often like the man you first met. You get hope back. You think maybe he realises what he has and will change. He doesn't. Before long he returns to his former behaviour. He cannot change as his thought processes are still the same matter what she does she cannot change him. Often this is a light bulb moment. The same is the pre-marriage and post-marriage attitude. Researchers have found that men who abuse family members often: ¢ Use violence and emotional abuse to control their families. ¢ Believe that they have the right to behave in whatever way they choose while in their own home.

¢ Think that a ‘real’ man should be tough, powerful and the head of the household. They may believe that they should make most of the decisions, including about how money is spent. * Believe that men are entitled to sex from their partners. ¢ Don’t take responsibility for their behaviour and prefer to think that loved ones or circumstances provoked their behaviour.

¢ Make excuses for their violence: alcohol or stress. *

for example,

they will blame

Report ‘losing control’ when angry around their families, but can control their anger around other people. They don’s tend to use violence in other situation: for example, around friends, bosses, work colleagues or the police.

¢ Try to minimise, blame other for, justify or deny their use of violence, or the impact of their violence towards women and children. * Some men who use violence have grown up in an abusive household themselves, but the majority have not. Some come

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from lower socioeconomic groups and some have problems with alcohol. However, this is not the case for all men who use domestic violence. It is commonly assumed that domestic viol ence is caused by alcohol abuse. This isn’t true. Not all alcoholics or binge drinkers resort to violence when angered or frustrated. It is how the perpetrator sees himself and his right s that lead to the violence. e Women are physically abuse/rape is that men It has the same nature know that our opponent or abuse.

weaker than men. The basic reason for are aware of women’s physical weakness. of a game/sport/an argument. When we is weak, it is easy and confident to attack

* Women get scared even when they get a wrong look from men. The more women show a timid face, the more the chanc es of getting attacked. * Most of the husbands take their wives granted because they are aware of wife’s financial dependency towards them. Also, if something go wrong in the marriage, then the society will only blame the wife. Even her parents may not support her even if she wants to come back to her house. We live in society which thinks that it is a shame for the family if a married daughter comes back home failing to adjust with the "abuse" ¢

Some

men

are out of their own control.

¢ Deep inside every women’s mind, there is a fear of being ignored by the husband. Women fear that if she protests or don't cooperate, husband may seek another woman . Men take advantage of this bare truth. * Some men are really weak .... weaker than women and they feel it necessary to hide their weaknesses. It is then their false ego and false "manhood" that makes him abuser. 22. What is domestic violence.—Domestic violence can be defined as a pattern of behaviour in any relationship that is used to gain or

maintain power and control over an intimate partner.

Abuse is physical, sexual, emotional, economic or psychological actions or threats of actions that influence another person. This includes any behaviours that frighten, intimidate, terrorize, manipulate, hurt, humiliate, blame, injure of wound someone. Domestic violence can happen to anyone of any race, age, sexual orientation, religion or gender it can happen to couples who are married, living together or who are dating Domestic violence affects people of all socio-economic backgrounds and education levels. You may be in an emotionally abusive relationship if your partner:

* Calls you names,

insults you or continually criticizes you.

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Does not trust you and acts jealous or possessive.

Tries to isolate you from family or friends. spend time Monitors where you go, who you call and who yuu with. Does not want you to work. Controls finances or refuses to share money. Punishes you by withholding affection.

Expects you to ask permission. Threatens to hurt you, the children, your family or your pets. Humiliates you in any way. You may be in physically abusive relationship if your partner has ever:

Damaged property when angry (thrown objects, punched walls, kicked doors, etc.) Pushed, slapped, bitten, kicked or choked you. Abandoned you in a dangerous or unfamiliar place. Scared you by driving recklessly. Used a weapon to threaten or hurt you. Forced you to leave your home. Trapped you in your home or kept you from leaving. Prevented you from calling police or seeking medical attention.

Hurt your children.

Used physical force in sexual situations. You may be in a sexually abusive relationship if your partner: Views women as objects and believes in rigid gender roles. Accuses you of cheating or is often jealous of your outside relationships. Wants you to dress in a sexual way. Insults you in sexual ways or calls you sexual names. Has ever forced or manipulated you into to having sex or performing sexual acts. Held you down during sex.

Demanded

sex when you where sick, tired or after beating you.

Hurt you with weapons or objects during sex. Involved other people in sexual activities with you. Ignored your feelings regarding sex.

23. Psychological effect of spousal abuse.—Spousal abuse, often results in several detrimental psychological effect for the victim. From 8 to 22 percent of women will likely be the victims of domestic physical violence, according tol1996 study published by Susan Wilt and Sarah

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Olson in the “Journal of American Medical Women’s Association." Psychological abuse almost always accompanies the physical violence. Domestic violence occurs when one member in a marriage attempts to dominate or control the other person. It can be physical or emotional. Emotional abuse can be verbal, including name-calling and criticizing. It can also be controlling, isolated or intimidating. Along with the infliction of physical pain, abusers use fear, guilt and intimidation as weapons. Intimate partner violence occurs regardless of age, ethnicity and socioeconomic status. Women are more commonly victimized, but men are abused as well. The most common mental health conditions resulting from domestic physical or sexual violence are depression and post-traumatic stress disorder, Episode of depression can be triggered by violence, or existing depression can be exacerbated by violence. Post- traumatic stress disorder is much more common in battered women than in other women. Abused women, especially the victims of physical abuse, are also more likely to experience anxiety, insomnia, and social dysfunction. Alcohol and drug abuse is also commonly seen in victims of intimate partner violence. Victims tic violence may turn to alcohol and drugs to treat symptoms of poor mental health. Use of drugs and alcohol may also increase the risk of male-to-female physical abuse. Such women also develop suicidal tendencies. Depression and post-traumatic stress disorder, often found in victims of domestic violence, can be predictive of suicide. Some battered women come to believe that the violence is their fault and have an inability to place responsibility for the violence elsewhere. They also fear for their or their children’s lives and believe that their abuser is omnipresent and omniscient. This theory has been used as a defense for reactions to abuse in Courts of law, but it has not been accepted by the psychological community as a definitive mental illness. 24. Verbal abuse.—Verbal Abuse is very subtle. What you need to look for are the following: you need to look for yelling in a relationship, for blaming, constantly blaming the other person, shaming the other person, the dismissing of your feelings and the use of threats to intimidate. Typically the partner doesn’t have the capacity to handle his or her emotions and takes out his or her anger on the other. It is also the quality and kinds of words and the temperament in which such words are used. It is commonly said that the partner is using

the words like:, "you're an idiot, "" you're stupid, " "you're fat, " "you're

ugly.”, "you are senseless", and the like. The partner is not assuming any

responsibility for his or her actions. Sometimes they put the responsibility on the other, "If only you would lose weight, " "If only you would go back to school, "If only you would work harder..." " if you were educated", "if you were good looking", "if you were smart like your friends", "if you were as smart as your sister”.

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[PART Il

need It's this constant chipping away at the self-esteem. So again we e to look at the purpose of the words, what the words are doing. They’r and using to blame, they're using to shame, they're using to control Nor manipulate. The feelings of the other are not given the due respect. l the self-esteem of the other is honored. There is an attempt to contro your feelings and emotions. If there is inability to control as such, the next resort is to using threats, direct threats, to intimidation which can be very subtle or be more expressed the more subtle ones are in terms of your relationships. And can be threatening or manipulative or even abusive. A spouse may have a feeling that something is wrong. They may feel stressed out; a sense of depression;anxiety but they can’t quite identify what is causing those feelings. Emotional abuse is used to control, degrade, humiliate and punish a spouse. While emotional abuse differs from physical abuse, the end result is the same... a spouse becomes fearful of their partner and begins to change their behaviours to keep their partner happy. The happier their partner, the less domestic violence the spouse has to suffer. By the time a spouse identifies the true problem they have begun to feel as if they are crazy. They will doubt themselves and their own sense of reality because emotional abuse is meant to cause the victim to question their every thought and behaviour. Below are some tactics an emotional abuser will use:

¢ Isolating from friends and family. ¢

Discourage any independent activities.

e Accuse their spouse of being unfaithful if she talks to a member of the opposite sex. e

Expect

her/him

uncomfortable

to partake

in sexual

activities

that

with to prove their love. Or withhold

he/she

is

sex as a

punishment, instead of communicating openly their displeasure. * Constantly criticize the spouses weight, their looks, they way they dress.

* If the spouse does to give into the control, they are threatened, harassed, punished and intimidated by the abuser. * Uses the children to gain control by undermining the other parents authority or threatening to leave and take the children.

* Control all the financial decisions, refuse to listen to their partner's opinion, withhold important financial information and make their spouse live on limited resources.

* Make all major decisions such as where to live, how to furnish the home and what type of automobile to drive.

People, who use emotional abuse to control others, use tactics similar to what prison guards use on prisoners of war. They know that physical control is not easily accomplished. They want the prisoners to

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cooperate and what better way to get someone to cooperate than to manipulate them emotionally? 25. Cyber crime in India—Cyber stalking—Online harassment.—Cyber stalking is when a person is followed and pursued online. Their privacy is invaded, their every move watched. It is a form of harassment, and can disrupt the life of the victim and leave them feeling very afraid and threatened.

Stalking or being ‘followed’ are problems that many people, especially women, are familiar with. Sometimes these problems (harassment &stalking) can occur over the Internet. This is known as cyber stalking. The internet mirrors the real world. That means it also reflects real life & real people with real problems. Although it is rare, Cyber stalking does occur. Cyber Stalking usually occurs with women, who are stalked by men, or children who are stalked by adult predators or paedophiles. A cyber stalker does not have to leave his home to find, or harass his targets, and has no fear of physical violence since he believes he cannot be physically touched in cyberspace. He maybe may be on the other side of the earth or a neighbour or even a relative! And a stalker could be of either sex. Typically, the cyber stalker’s victim is new on the web, and inexperienced with the rules of netiquette & internet safety. Their main targets are the mostly females, children, emotionally weak or unstable, etc. It is believed that Over 75% of the victims are female, but sometimes men are also stalked. The figures are more on assumed basis and the actual figures can really never be known since most crimes of such natures go unreported. - Shocking as it is, such threats are reportedly the most typical incitement to violence against women online. And they are increasing. This is corroborated by a study done by Internet Democracy Project (IDP), "An exploratory study of women and verbal online abuse in India". Its final report is awaited, but the initial draft says that "to be a woman online AC" just like to be a woman walking the streets of an Indian city, town or village-is to transgress an unwritten law of patriarchy; to cross over into a space that isn’t meant to be yours."

Anja Kovacs, Director of IDP in India, says, "Threats are being used to silence women. Online abuse of women is women is increasing in India because more people coming online." According to the Internet and Mobile Association of India’s 2013 report, 52 % of working women and 55% of non-working women are using social media in India. The IDP study of such women found that some of the hateful trolling that they faced included being called everything from "whore" to "bitch" to "terrorist", getting their defaced pictures posted online, receiving threats. The trigger could be anything a blog on Modi or a peace process, a tweet on rape or on even innocuous issues and photos. One Facebook user was messaged: "Oh, but you're a woman, you don’t understand this" and "Go back to playing with your dolls". Men too

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[PART Il

abuse face online abuse, but the quality and content are different. "The The directed at women is about their body, sexualisation, swear words. lives. sexual abuse that men receive is also directed at the women in their Women get abused more than men. This is because they can be an easily targeted for their gender. By extension, their right to have opinion in a male-dominated space is also attacked. However, understanding the scale of the problem and combating it is difficult as not many Indian women report it. Many prefer to remove these abusive posts or remain silent. They feel it will be harassment once the police start interrogating them and their names would be published in the media. Many do not complain as it may end in blame game. In activity passed relating

recent times the cyber space has become a fertile field for illegal and often lead to violent crimes. To combat the same, India has an Information Technology Act, 2000, which contain provision to cyber stalking to certain extent.

Continued use of women by our media for advertisement purpose has set in motion a national debate on the subject. How do we define to indecent amounts What is obscenity? What Pornography? representation of women? Who should set-up public standards in this behalf whether such standards should be codified at times and all places? What should be the guidelines to interpret such standards? If in decent remains only in a women's body? If not, why there is not indecent Representation of Men (Prohibition) Act in our country? These and several connected questions arise for consideration at the present. An attempt has been made in the following discussion to find answers to some of these questions. 26. Pornography—Subordination of women as sex object.—Expression of male Culture through which women are commodified and exploited. The exhibition of pornography degrades a women, where women are depicted as “sex objects".It subordinates women in this so-called ‘patriarchal’ nature of the society. Moreover, activities like pornography are not only contrary to public morality, but also stand as a degrading factor for women. Women are depicted as “sex objects" ready for being sexually exploited by the men. They are shown participating in various sexual activities and enjoying them too, which arouses sexual desire among those who watch it and urges them to participate in similar practices. This often leads to various sexual crimes like rape, prostitution, etc. Therefore, it is very important to suppress the display and commercialisation of pornography. Further, those who try to uphold the use and propagation of pornography should be suppressed since they are the ones who ignore to foresee the harmful consequences of pornography on society as a whole and women specifically. These people use the weapon of right to free speech and expression to support their unfavourable arguments in favour of pormography. Though this right is important for an individual as any other Fundamental Right but there are restrictions also imposed on its exercise which needs to be

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observed, in the interest of general public, One such restriction is in the interest of public decency and morality. Pornography is definitely against the moral values of the society. Therefor e, its prohibition is justified under Constitution. Also, women's libe ralisation is though favoured in the present society, this should not mak e women participate in such activities which degrades their womanh ood. This may also lead to women's subordination by male gender who will view women as “objects” of exploitation. Cyber pornography’ has become the most cont roversial topic arising from the use of Internet in recent years. Its availability on the Internet has caused fear and a panic among the Government, and law enforcement bodies. There is no settled defin ition of pornography in a multi-national environment such as the Inter net. Cultural, moral and legal variations all around the world make it difficult to define ‘pornographic content’ in a global society. The adva ncement in Internet technology has made access to pornography virtu ally unlimited, Indeed, each day additional sites dedicated to pornogra phy are create. The Internet was originally designed by the United Stat ed Department of Defence as a means of providing decentralized comp uter controls. The theory was that if part of the country were destroye d by a nuclear attack, the computer systems containing war planning would still be functional. In very short period, the usefulness of the Internet beca me clear to the private sector. Universities and businesses created conn ections to the information superhighway and eventually led to what is toda y known as the Worldwide Web. Technology serves to facilitate comm ercial activity and pornographers have never lagged behind from it. Huge amount of pornographic material can be reproduced more quickly and cheaply on hard drives, and CD ROM'S. Many web sites provide free trial offers without considering the age limit of the viewer. It is important to note that, Indian law nowhere defines the term ‘Pornography’. Even the term is not Statutorily defined in the United States of America. It is also felt that as there is no uniform standa rd of moral culture and ethics there cannot be any fixed/uniform defini tion of this term Pornography is often described as hard to define but easy to recognize. At this juncture it is important that the term pornography and

obscenity maybe understood in their broadest possible meaning. The literal meaning of the term ‘pornography’ is describing or showing sexual acts in order to cause sexual excitement through books films etc. Nations

to

regulate

such

unwanted

Internet

contents.

Internet

provides a platform through which one Can express his ideas, thoughts and expressions. This\information will flow from one comer of the globe to another comer just at the click of mouse. It is here where we can see the clash between the spiritualist and the materialistic west. Today live sex and child pornography are rampant on the _ internet, Cyber Pornography has becomes difficult to regulate because there is a difference of opinion as to acceptable standards and limits of morality in of cyber pornography of the features Some different countries.

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218

hacking, implementing viruses. are-different from other cyber crimes lie affect the creditability of the Unlike cyber crimes like hacking which the use of the Internet. Should Internet, Cyber pornography promotes ricted? How much of cyber cyber pornography be prohibited or rest are debatable issues. As cyber pornography should be permissible? These due to different laws and porn is easily and conveniently available, and regulate. standards of morality it has became difficult to the quality of being The word. as the dictionaries tell us, denotes ncy; lewd, filthy and obscene which means offensive to modesty or dece

rtant interest of society to repulsive. It cannot be denied that it is an impo difference between suppress obscenity. There is, of course, some tes writings, pictures obscenity and pornography in that the latter deno former may include etc. intended to arouse sexual desire while the ency. Both, writings etc. not intended to do so but which have that tend pornography is of course, offend against public decency and morals but obscenity in a more aggravated form. ty and In pornography, the service provider, misrepresents his identi s for dispatches a mail to a child user of computer for sending photograph

and a carrier of fashion or modelling, with an offer of incentive or money nal sometimes they assure their victims that such pictures are for perso or confidential use. When they receive such pictures they interpolate the ic same through graphic program and convert them to pornograph pictures such as putting the face of the victim on the nude body of the person or convert them into intimate postures and release through Modem for hacking by users, with out the knowledge of the person concerned.

27. Legislation and Judicial system must ensure punishment to perpetrators of acts of violence.—Laws are crucial to ensure that perpetrators of acts of gender violence are punished. Women should be able to access the justice system. Law has the potential to play a leading role in combating violence against women. It can set standards of right and wrong, as well as wielding the deterrent of incarceration or other remedies. Resources should be allocated to make the legal system a crucial site for initiatives to improve a country's response to violence against women. ¢

Besides being able to contribute to specific deterrence measures, legal practices should contribute to public awareness of and public responsibility for violence against women. The legal system should empower individual women who are victims of violence. Domestic violence, rape and sexual assault, sexual harassment and other forms of violence often deprive women of their sense of control, autonomy, self-respect and personal privacy. The legal system should restore and reinforce those qualities, while avoiding measures that "re-victimise” the victim. The legal response to violence against women should strengthen women’s place in society by enhancing women's overall equality. Many

sexually

harassed

individuals

put up

with

the

damaging

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physical and psychological effects of the harassment because taking action can be daunting, especially in envi ronments that do not provide moral and practical support. Most ofte n victims are ashamed and embarrassed and worry that they will be labelled as "loose women" and thus prefer to keep quiet. Specific laws that deal with both domestic violence and sexual harassment at the work place are necessary so that women do not continue to suffer in silence. Governments must seriously address and brea k the cycle of violence against women. They should take effective meas ures to prevent violence in the home and in the workplace, and also in the public places such as Streets and on public transportation. They have also to redress family laws that are gender discriminatory. Governments should take effective steps to bring laws, practices, policies and procedures into full conformity with international human rights instruments. They should ensure that laws against abuse, including beating, rape, sexual assault, and other gender based violence, provide adequate protection to all women and respe ct their integrity and dignity. The police should be trained to prevent and investigat e domestic violence including honour crimes. The responsiveness of the judiciary to the problem of honour killing should be increased.

Both Governments and NGOs should collect and analyze regularly data on gender-based violence. They should also provide good quality services for victims of violence such as help-lines, shelters, housing, medical treatment and jobs. Violence against women cuts across all Government sectors, with implications of all programming. It demands new levels of coordi nation and integration between a variety of Government sectors includ ing the criminal justice system, health, education and employment.

It is the responsibility of the Government who has ratifie d international conventions and human rights instruments to harmo nize their national laws in tune with these instruments. One steps towards upholding the right of woman to equal protection under the law is to enact domestic violence legislation that specifically prohibits violence against women, which the Government has done in 2005 though belatedly. Such laws should deal with safety and security for women, her

dependents

and

property and

further disruption.

assistance

in continuing

her life without

In conformity with its obligation under the Convention on the Rights of the Child the Government is also expected to denounce and reform all laws, practices and policies that allow harmful cultural practices such as female genital mutilation, crime committed in the name of the honour and discrimination based on non preference. Our Government has not done much in this regard, though the Act of 2005 has been enacted.

But

legislation

of a law is not enough,

its implementation

and

220

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[PART Il

nt requires the cooperation and enforcement become a priority. Enforceme em. sensitization of the police and the judicial syst ed to provide assistance to The police are particularly well position udices, lack of training and victim, but very often their own prej dealing with democratic reluctance to intervene, hinder them from ce at all levels must be violence. Training and sensitilization of poli d to monitor police response. instituted and guidelines must be develope own behaviour towards the They must be held accountable for their r victim in order hands.

to prevent

secondary

victimization

of women

at thei

that violence in a The judiciary can strongly reinforce the message be held accountable. serious criminal matter for which the abuser will s the most critical The Judge sets the tone in the Court room and make and children and decisions affecting the lives of the victim, perpetrator tilization of the must therefore sensitive to the domestic violence. Sensi schools should judiciary to gender issues is, therefore critical and law try at least include relevant courses in their programmes. In our coun the problems judiciary to a great extent, at higher level, is sensitive to too by the relating to women. There had been same landmarks decisions adequately Apex Court. The police system in our country is yet to be icular trained and made sensitive to the issues relating to women in part to the domestic violence. The cases of domestic violence are not reported police out of fear of another victimization. The police needs policing. There is chronic lack of statistics on domestic violence that acts as a barrier to policy change on this measure. The lack of adequate data and documentation about violence against women and domestic violence in particular, reinforces Governments silence. In the absence of complete data, the Government and the authorities concerned very conveniently deny the fact of, and their responsibility to address such violence. They feel that they have done their part of the duty by making certain laws. There is need of qualitative research on the incidents of domestic Violence, its characteristics, what makes a male violent, what makes him to torture his wife, history of such violence in a family, attitude of other family members causes of such violence, its physical and psychological impact on women, its effect on the community, society, the children in the family, how it started in a particular family and the like.

The protection and safety of the victim should be the prime focus. It

is important that protective measures are provided, so that the victim is not re-victimized.

In our country there is hardly any research work on the subject of domestic violence, worth mentioning. So no statistics is adequate enough, nor its represents the actual scenario. The protective measures are just lacking. This author has mainly found three reasons why a woman is not interested in any legislations supposed to be to safeguard her interests. First, they have absolutely no faith on police system. Second, they fear social stigma even though a victim. They are looked

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with the aspects of suspicion. Third, they do not want to be re-victimised, when the life after complain of such torture is not certai n. Howsoever louder the provisions of the legislation may speak, no better life is guaranteed to her. So long they have the shelter they prefe r to suffer silently. They wish to carry the protective umbrella with them even if there is no rain—even if there is no sunshine. In the childhood, ‘the protection of parents or other relatives;in marital life the protection of husband; in the advanced age, protection of

the children—to what-ever her sacrifices. Helping women rebuild their lives, self-esteem and lcst confidence had to be the main focus of the efforts. But there is hardly any, in our

country, even for abused choices or options.

woman,

rather is often left with hardly any

The abused woman has no support system. She is often make to feel that all doors for her are closed as an abused woman. She develops a negative feeling including inadequacy powerlessness and Isolation. Once abused she is abused number of times there- after. There is total lack of protection and safety of the abused woman and children, during and after the crisis. It is of almost necessity that proper education is given to the women including legal literacy and economic self-reliance. 28.

Research

on the magnitude

of the problem—Global view.—

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 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

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under-reported.

When

women

file a report or seek treatment,

they may

have to contend with police and health care officials who have to been trained to respond adequately or to keep consistent records. On the other hand, shame, 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. Physical abuse—A growing body of research studies confirms the prevalence of physical violence in all parts of the globe, including the estimates 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. There are few comparable statistics on psychological violence, sexual abuse, and murder of women at the hands of intimate partners and other family members. Physical violence is usually accompanied by psychological abuse, and in many cases by sexual assault. 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 are 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 Australia, Austria, Barbados, Canada, Cyprus, Denmark, the Dominican Republic, Ecuador, Finland, France, Germany, Ireland, Mexico, Namibia, New Zealand, Norway, the Philippines, Poland, Russia, South Africa, Spain, Sweden, Trinidad & Tobago, the United Kingdom and the United States of America. Although provision of such laws represents considerable progress, it is often difficult for a woman to press charges because of the evidential rules concerning the crime. 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. Victimsurvivors 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, as many as 35 to 40 per cent of battered women attempt suicide. In Sri Lanka, the number of suicides by girls and women 15-24 years old ia 55 times greater than the

number of deaths due to pregnancy and childbirth. While

the impact

of physical

abuse

may

be more

‘visible’ than

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psychological scarring, repeated humiliation and insults, forced isolation, limitations on social mobility, constant threa ts of violence and injury, and denial of economic resources are more subtl e and insidious forms of violence. The intangible nature of psychological abus e makes it harder to define and report, leaving the woman in a Situa tion where she is often make to feel mentally destabilized and powerles s. Femicide.—Femicide-murder of women by their batte res -is another phenomenon that should be regarded as a separ ate category when recording domestic violence. Studies carried out in Australia, Bangladesh, Canada, Kenya, Thailand and the Unite d States of America have documented the incidence of femicide within the domestic sphere. In Southern Africa women’s groups have begun to document the increasing incidence of femicide, and data on this issue are available from Botswana, South Africa, Swaziland, Zambia, and Zimbabwe. A comparative analysis of spousal homicide, based on 199] data, concluded that Russian women are 2.5 times more likely to be murdered by their partners than American women. However, Amer ican women are already twice as likely to be killed by their partners than women in Western European countries.

Sexual abuse of children and adolescents.—Considering the taboo in most countries that surrounds incest or the sexual abuse of children and adolescents within the family, this is one of the most invisible forms of violence. Because the crime is perpetrated most often by a father, stepfather, grandfather, brother, uncle, or another male relative in a position of trust, the rights of the child are usually sacrificed in order to protect the name of the family and that of the adult perpetrator. However, studies have shown that from 40 to 60 per cent of known sexual assaults within the family are committed against girls aged 15 years and younger, regardless of region of culture. A recent study in the Netherlands showed that 45 per cent of the victims of sexual violence within the domestic sphere are under the age of 18. Of these, girls are far more likely to be victims of incest them boy. Forced prostitution—Forced prostitution or other kinds of commercial exploitation by male partners of parents is another form of violence against women and children reported worldwide. Destitute families, unable to support their children, often hire out or sell their children, who may then be forced into prostitution. Very often they young girl is sent as a domestic worker, in which case she may be physically and sexually exploited by her employers. For example, in West Africa-from Senegal to Nigeria-tens of thousands of children of destitute families are reportedly sent to the Middle East each year, many of them ending up a prostitutes. In South Africa, child prostitution is on the rise and has become an increasingly organized activity. In certain hill districts of Nepal, prostitution has become an almost’ traditional’ source of income.

Women

and

girls are

tricked

or

forced

by their

husbands

and

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titution. In the poor rural relatives into being trafficked to India for pros n rise to the phenomenon of areas of Thailand, where poverty has give hter's duty to sacrifice debt bondage, it is believed that it is the daug ers buy the “labour” of herself for the well-being of the family. Traffick y. The high incidence of young women and girls in exchange for mone this trafficking in young HIV/AIDS in the country has been attributed to ated" to priests, girls. In Northern Ghana and parts of To go, girls are "don ally to the shrine priests and are forced to live as "wives" and submit sexu lar practice exists in in return for protection for the family. A simi adasis) are "donated" to southern India where young women and girls (dev

ted. serve a temple; and very often end up being prostitu access to Sex-selective abortions, female infanticide and differential is placed on food and medical care.—In societies where a higher value me forms sons, discrimination towards female children can take extre a recent such as sex-selective abortions and female infanticide. In India, The figure survey reported 10,000 cases of female infanticide annually. nt does not take into account the number of abortions performed to preve its the birth of a child. An official survey in China revealed that, with one-child policy. 12 per cent of all female embryos were aborted or otherwise unaccounted for. And in many countries the discrimination that leads to the neglect of girl children is the greatest cause of sickness and death among girls between the ages of two and five years. Girls in many developing countries receive less nourishment than boys, and they are more likely to suffer mental or physical disability or even die, as a result of poor nutrition. Less access to health care also exacerbates the much higher mortality rate among girls. Sex-selective abortion, female infanticide, and systematic differential access to food and medical care have led to the phenomenon known as the "missing millions" of women and girls. An estimated 60 million women are simply missing from the population statistics. In other words there are 60 million fewer women alive in the world then should be expected on the basis of general demograph trends. The phenomenon is observed primarily in South Asia, North Africa, the Middle East and China.

Traditional and cultural practices affecting the health and lives of women.—Around the world, women and girls suffer the harmful and lifethreatening effects of traditional and cultural practices that continue under the guise of cultural and religious belief Examples include. Female

Genital

Mutilation

(FGM):

It has bee estimated

that nearly

and_ that FGM have undergone worldwide 130 million women approximately two million undergo the procedure every year. FGM 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.

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dowry before and after Marriage are not met. An average of five women a day are burned, and many more Case s go unreported. Death a 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 bummed 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 some times kill women and girls for reasons as varied as family feuds, inabilit y to meet dowry demands, and rejection of marriage proposals. In Banglade sh, 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, prem arital relationships (with or without sexual relations), rape, falling in love with a person of whom the family disapproves-are all reason enough for a make member of the family to kill the women 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 and in reality the numbers are higher because many such murders are recorded as suicides or accidents. Victim-survivors of attempted murd ers are forced to remain in protective custody, knowing that leaving custody would result in death at the hands of family. The penal codes in Jordan that govern crimes of honour also sanction killing by making the pena lty disproportionately lenient, particularly if the crime is committed by boys under 18 years of age. Early marriages: 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 count ries, the minimum legal age for marriage with parental consent is consi derably lower that without it; more than 50 countries allow marriage at 16 or below with parental consent. Early marriage leads to childhoo d/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 brith weight. Furthermore,

it has an adverse

effect on the education and employment opportunities of girls.

‘ According to report by the united Nations Children's Fund (UNICEF)

up to 50 million girls and women are missing from India’s population as a result of systematic gender discrimination in India. In most countries in the world, there are approximately 105 female births for every 100 males.

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en in the 93 women for every 100m n tha s les are re the ia, In Ind practice of for such a disparity is the son rea ed ept acc The n. populatio of a dowry system prompted by the existence

female infanticide in India, en a female out a great deal of money wh pay to ily fam the es uir req which a girl child can signal the of th bir the , ily fam r poo a child is married. For extreme hardship. beginning of financial ruin and to poor s is by no means limited However this anti-female bia beliefs and ation is to do with cultural families. Much of the discrimin be challenged if this practice t mus s lve mse the ms nor se social norms. The is to stop.

of a d scanners which detect the sex Diagnostic teams with ultrasoun nd 600 rupees now and save spe as h suc s line ch cat h wit child advertise 50, 000 rupees later. a girl, a family will avoid paying. The implication is that by avoiding , the her daughter. According to UNICEF a large dowry on the marriage of hods of detecting the sex of a met ic ntif scie as se wor g tin get is problem are improving. baby and of performing abortions sing available in rural areas of rea inc ng omi bec are s hod met se The ards the abortion of female foetuses tow d tren the that s fear ing fuel a, Indi is on the increase. Age there are at least 70,000 According to the 1994 report in Asian Calcutta, Bangalore and sex workers in Delhi, Madras, women under 20 years of age. 40% are Hyderabad. 30% of these women are y 15% of them became prostitutes 20-30 years of age, and approximatel as children under the age of 12. ed into prostitution by their In India, many innocent victims are forc or enticed into prostitution. husbands or relatives. Some are tricked d, rape is common in India. As in other countries throughout the worl without a case of rape being Rape is a social disease.Hardly a day passes a. Women belonging to low reported in Indian newspapers and medi What is sad about rape in castes, and tribal women are morel at risk. the crime is often treated. India is the lack of seriousness with which a woman is raped every Statistics from 2000 showed that on average hour in India.

conservative attitudes Women's groups attest that the strict and iveness of India’s rape about sex and family privacy contribute to ineffect In an open Court victims laws. Victims are often reluctant to report rape. them in order to get a must prove that the rapist sexually penetrated proving that she has conviction. This can be especially damaging. After family and community. been raped, a victim is often ostracized from her laws are inadequate This problem is exacerbated by the fact that rape difficult. and definitions so narrow that prosecution is made that not If you have ever viewed pornographic material, it is clear n, but the material only does pornography cause violence against wome graphic material. itself is violence against women, the women in the porno

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Pornography also sends out the message to men that women enjoy being beaten, abused and raped. It is unfo rtunate, but over the last few years the violence portrayed in pormogra phic material has increased greatly.

The material also tries to send the message that women secretly enjoy the abuse. Many studies have proven that pornography can lead to violence. 29. Female sexuality enforced—Modesty and chastity—Men taking advantage of it.—Representations of female sexuality date back to prehistoric times; there is clear evidence of the depiction of female fecundity in ancient Venus figurines. Fertility goddesses are common in many ancient cultures. In many cultures, there are also gods of love, marriage, and sex. In the ancient civilization of India, Japan, and China, the subject of female sexuality was expressed in several writings and commentaries. For example, much of the Kama Sutra , an ancient treatise on sex and sexuality, deals with female sexuality. Historically, female sexuality has been seen in many maledominated cultures as subordinate to male sexuality, and as something to be controlled by society through restriction on femal e behaviour. One may say that within these cultures the most popular conceptions of female gaze, or gazes not female nor male. Traditional cultural practices such as enforced modesty and chastity have historically tended to place restrictions principally on women, without imposing similar restriction on men. Some controversial traditional cultural practices, such as female genital mutila tion (FGM), have been described as attempts at nullifying women’s sexuality altogether. Many females are deprived of the ability to achiev e orgasm through the act of FGM, which is practiced in many countries aroun d the world. Against their will, young girls around the world undergo mutilation at a young age-at the age of 5 or 6. It is a procedure that involves the cutting of the clitoris, most often without the use of pain killers. There are many health risks. These risks include: severe pain, urine retention, infection to many parts of the female reproductive system, difficulties with childbirth. Other cultural practices such as _ honor killings threaten

unsanctioned female sexual behaviour with death, often at the hands of

the woman’s own relatives. This combines with a "blame the victim" attitude which punishes women who accuse men of raping them; even if the rape is proved, the woman will be punished for the "crime" of fornication, regardless of her unwillingness to "participate". Oftentimes,

after the killing takes place, the family attempts to forget and no longer mention the family member they just killed. Some honor killings are

made to appear as accidents so measuring them can be difficult.

In the modern age, psychologists and physiologists engaged in the task of exploring female sexuality. The Role of Urethra in Female Orgasm (1950), which describes female ejaculation, as well as an erogenous zone

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[PART |!

vaginal wall. In 1981, sexologists where the urethra is closest to the , or G-Spot. While the medical Spot g ber fen Gra the area that ed nam ed the complete concept of tiie community generally has not embrac notion that women only want sex G-Spot, some researchers challenge the by identifying the characteristics for the physical closeness or cuddling, characterized as "highly sexual" of highly sexual women. This women casual sex, fantasized about sex held more favorable attitudes toward ted relationship. These findings often and enjoyed sex outside of a commit sex or cuddling is not solely support the view that the importance of based on gender. social status of women The feminist movement, and the increasing ality being reassessed as a in modern society, have led to women's sexu 1980s, in the wake of the subject in its own right. During the 1970 and started to address the sexual revolution, numerous feminist writers female perspective, rather question of female sexuality from their own in terms of largely male than allowing female sexuality to be defined studies. topics that could Lesbianism and female bisexuality also emerged as towards political be talked about in public. A short-lived movement temporary schisms lesbianism within the feminist movement led to an women, within the feminist movement between heterosexual and lesbi that most women's rapidly floundered in the face of the acceptance l preferences. sexuality was not defined by politics, but by their own sexua of female Most modern feminist movements now accept all forms sexuality as equally viable. a lead The social constructions of masculinity and femininity play lling role in understanding why women are held responsible for contro the it sexual encounters Socially constructed masculinity comes with are ideas that men have a higher sex drive than women, that men ed constantly interested in sex, and that once men are sexually arous they must be satisfied through orgasm. This drive is intertwined with the male identity and consequently creates a momentum that once started is difficult to stop. Socially constructed femininity carries with it the connotation of passivity, which has impacted the cultural importance of y female desire. This has caused women’s sexual desires to be largel ignored. 30. Feminism.—The history of feminism in India can be divided into three phases: the first phase, beginning in the mid-nineteenth century, initiated when male European colonists began to speak out against the social evils of Sati; the second phase, from 1915 to Indian independence, when Gandhi incorporated women’s movements into the quit India movement and independent women’s organisations began to emerge; and finally, the third phase, post- independence, which has

focused

on fair treatment

of women

in the work

force and

right to

political party. Despite the progress made

by Indian feminist movements,

women

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living in modem India still face many issues of discrimina tion. India's patriarchal culture has made the process of gaining landownership rights and access to education challenging. In the past two decades, there has also emerged a disturbing trend of sex-selective abort ion. To Indian feminists, these are seen as injustices worth struggling against. Historical circumstances and values in India have caused femini sts to develop a feminism that differs from Western feminism. For example, the idea of women a "powerful" is accommodated into patriarchal cultur e through religion, which has retained visibility in all sections of society .

This has provided women with traditional "cultural spaces" Furthe r more, in the West the notion of "self" rests in competitive individualism where people are described as "born free yet everywhere in chains."In India the individual is usually considered to be just on part of the larger social collective.

Indian women negotiate survival through an array of oppressive patriarchal family structures: age, ordinal status, relationship to men through family of origin, marriage and procreation as well as patriarchal attributes. Examples of patriarchal attributes include: dowry, siring sons etc., Kinship, caste, community, village, market and the state. What we need is to rebuild the women’s movement piece by piece. This is not done by demands for instant justice or expressions of instant outrage. It requires the hard work of working with ‘common citizens’ across the city in every nook nd corner to change their attitudes, to inform them of the law and push for legal education and implementation, to work with sensitization campaigns with the police, in colleges, in

schools to make of them citizens aware of feminism’s insights and advancements over several painful decades of legal failure and

achievement. It is not just about calling for an adhering to due process but actually ensuring that due process happens.

31. Problems in habiting women.—Despite ‘on-paper' advancements, many problems still remain which in habited women from fully taking advantage of new rights and opportunities in India. There are many traditions and customs that have been an important part of Indian culture for hundreds of years. Religious laws and expectations, or “personal laws’ enumerated by each specific religion, often conflict with the Indian Constitution, eliminating rights and powers women should legally have Despite these cross over sin legality, the Indian Government does not interfere with religion and the personal laws they hold. Religions, like Hinduism, call for women to be faithful servants to God and their husbands. They have a term called pativrata that describes a wife who has accepted service and devotion to her husband and her family as her ultimate religion and duty. Indian society is largely composed of hierarchical systems within families and communities. These hierarchies can be broken down into age, sex, ordinal position,

kinship

relationships

(within

families),

and

caste,

lineage,

wealth,

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[PART II

ity. ruling power (within the commun to hip ons ati rel and ns, tio upa occ family based on social convention When hierarchies emerge within the families suffer twice the impact of and economic need, girls in poorer girls are automatically entitled to vulnerability and stability. From birth, be cation, girls can expect to always less, from play time, to food, to edu s also have less access to their Girl rs. the bro r thei n tha less to entitled is exacerbated among poor, rural ch whi ts, asse and ome inc ’s ily fam is understood that females will be Indian families. From the start, it austing responsibilities for the burdened with strenuous work and exh no compensation or recognition. rest of their lives, always with little to by definition, describes India is also a patriarchal society, which, bands are assumed to be in cultures in which males as fathers or hus A patrilineal system governs charge and the official heads of households. are traced through the male the society, where descent and inheritance the distribution of family line and men are generally in control of resources. been in effect for so These traditions and ways of Indian life have become accustomed to long that this type of lifestyle is what women have advantage of their and expect. Indian women often do not take full aware or informed of constitutional rights because they are not properly ng rights because them. Women also tend to have poor utilisation of voti sense of political they possess low levels of political awareness and informed about efficacy. Women are not often encouraged to become time in female issues. Due to this, political parties do not invest much are a "wasted candidates because there is a perception that they investment."

that there The female-to-male ratio in India is 933 to 1000, showing is due to are numerically fewer women in the country than men. This

e several factors, including infanticides, most commonly among femal . infants, and the poor care of female infants and childbearing women Although outlawed, infanticides are still highly popular in rural India, and are continuing to become even more prominent. This is due to the fact, most especially in rural areas, that families cannot afford female

children because of the dowry they must pay when their daughter gets

married. Like infanticide, the payment of dowry is also illegal, but is still

are a frequent and prevalent occurrence in rural India. Women considered to be "worthless" by their husbands if they are not “able” to produce a male child, and can often face much abuse if this is the case.

Modern influences are affecting the younger generations in parts of India, where girls are beginning to forgo the more traditional ways of Indian life and break gender stereotypes. In more flourishing parts of the country, the idea of “dating, " or more specifically openly dating, has come into play, and the terms "girlfriend" and "boyfriend" are being used. Some women have landed highly respectable careers, and can be seen across Bollywood billboards and advertisements. However, this is not the norm throughout the country; such modernisations and the women

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behind them face serious resistance from anti-liberalists. The country is still severely male-dominant and unwelcoming to such movements that go against sex and gender traditions in India. 32. Traditional control of men.—Traditionally, males have controlled key family resources, such as land or businesses, especially in high-status groups. Following traditional Hindu law, women did not inherit real estate and were thus beholden to their male kin who controlled land and buildings. Under Muslim customary law, women can -and do- inherit real estate, but their shares have typically been smaller than those of males. Modern legislation allows all Indian women to inherit real estate. Traditionally, for those families who could afford it. women have controlled some wealth in the form of precious jewelry.

A significant aspect of Indian family life is pardah (from Hindi parda, or "curtain"), or the veiling and seclusion of women. In much of northern and central India, particularly in rural areas, Hindu and Muslim women follow complex rules of veiling the body and avoidance of public appearance, especially before relatives linked by marriage and before strange men. Pardah practices are linked to patterns of authority and harmony within the family. Hindu and Muslim pardah observances differ in certain key ways, but female modesty and decorum as well as concepts of family honor and prestige are essential to the various forms of pardah. Pardah restrictions are generally stronger for women of conservative high-status families. Restriction and restraint for women in virtually every aspect of life are essential to pardah, limiting women’s access to power and to the control of vital resources in a male-dominated society. Sequestered women should conceal their bodies and even their faces with modest clothing and veils before certain categories of people, avoid extramarital relations, and move about in public only with a male escort. Poor and low-status women often practice attenuated versions of veiling as they work in the fields and on construction gangs. Hindu women of conservative families veil their faces and remain silent in the presence of older male in-laws, both at home and in the community. A young daughter-in-law even veils from her mother-in-law. These practices emphasize respect relationships, limit unapproved encounters, and enhance family lines of authority.

For Muslims, veiling is especially stressed outside the home, where a conservative woman an all-enveloping black burka. Such pardah the shelters women—and unrelated unknown men.

sexual

inviolability

of

the

family—from

In south India, pardah has been little practiced, except in certain minority groups. In northern and central India today, pardah practices are diminishing, and among urbanites and even the rural elite, they are rapidly vanishing. Chastity and female modesty are still highly valued, but as education and employment opportunities for women increase, veiling has all but disappeared in progressive circles.

232

[PART II

LAWS ON PROTECTION OF WOMEN FROM DOMESTIC VIOLENCE

According to this Author, this Pardah another way to keep control of women.

system

had

been

and

is

33. Status of women in modern times.—The status of women in modern India is a sort of a paradox. If on one hand she is at the peak of ladder of success. On the other hand she is mutely suffering the violence afflicted on her by her own family members. As compared with past women in modern times have achieved a lot but in reality they have to still travel a long way. Women have left the secured domain of their home and are now in the battlefield of life, fully armored with their talent. They had proven themselves. But in India they are yet to get their dues. The sex ratio of India shows that the Indian society is still prejudiced against female. There are 917 females per thousand males in India according to the census of 2011, which is much below the world average of 990 females. There are many problems which through daily, some of which are:

women

in

Indian

have

to go

¢ On of the major causes of mal-nutrition among Indian women is gender inequality. In many parts of India, especialiy rural India, women are the ones who eat last and least in the whole family. This means they eat whatever is left after the men folk are satiated. As a result most of the times their food intake does not contain the nutritional value required in maintaining the healthy body. In villages, sometimes women do not get to eat a whole meal due to poverty. This nutritional deficiency has two major consequences for women first they become anemic and second they never achieve their full growth, which leads to an unending cycle of undergrowth as mainourished women cannot give birth to healthy children.

¢ In the want of a son get pregnant as soon as possible which decreases the caring period to the gird child, where as male members get adequate care and nutrition. Women are not given the right to free movement that means that they cannot go anywhere on their own if they want and they have to take the permission of male member of family or have to take them along. This means that women miss visiting doctors even when they should, which adds to their poor health. * The maternal mortality rate in India is among highest in the world. As females are not given proper attention, which results in the malnutrition and then they are married at an early age which leads to preganancies at younger age when the body is not ready to bear the burden of a child. All this results in complications, which may lead to gynecological problems, which may become serious with time and may ultimately, lead to death. * In India women’s education never got its due share of attention. According to medieval perception women need just household education and this perception of medieval India still persists in

PARTI]

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233

villages of India even today. Girls are supposed to fulfill domestic duties and education becomes sec ondary for them whereas it is considered to be important for boys. Although scenario in urban areas has changed a lot and wom en are opting for higher education but majority of Indian pop ulation residing in villages still live in medieval times. The people of villages consider girls to be curse and they do not want to was te money and time on them as they think that women should be wedded of as soon as possible. The main reason for not sending girl s to school is the poor €conomic condition. Another reason is far off location of schools in Indian society virginity and purity is given utmost importance during marriage and people are afraid to send their girl child to far off schools were male teacher teach them along with boys. In India violence against women is a com mon evil. Not just in remote parts but even in cities women bear the brunt. They are subjected to physical and mental violence. They are the one who work most but are not given their due. Thei r household chores is never counted as a work, If a woman is work ing in a field to help her husband it will also be not counted as a work. In India a large percentage of women do not have power. They cannot take decisions independently not even related to their own life. They have to take permission of male memb ers for each and every issue. They don’t have any Say in impo rtant household matters and not in matter of their own marriage. The family mainly fixes the marriages in India. The scenario in villages is very bad. The girl is not consulted but is told to marry a groom whom her family has chosen for him. They are taught to abide by the whims and fancies of their husbands . Going against the wishes of husband is considered to be a sin. Another serious issue in modern India. Courts are flooded with cases related to death due to dowry harassment by husband and in laws. As women

were supposed to be and in some areas of India are still

considered to be curse by some strata a burden. So in past times they were Today with the help of technology determined and if it is a girl child then

of society their birth was taken as killed as soon as they were born. the sex of the unborn baby is it is aborted in all this procedure

women do not have any say they have to do according to the wish of their

husbands even if she does not want an abortion, she has no choice. ¢ The divorce rate in India is not so high compared to western countries but that does not mean that marriages are more successful here. The reason behind low level of divorce rate is that it is looked down by the society. It is regarded as the sign of failure of marriage, especially of women. She is treated as if she has committed some crime by divorcing her husband.

234

EN FROM DOMESTIC VIOLENCE LAWS ON PROTECTION OF WOM

of Indian i Though there are problems in the lives to a to fight all the odds and enjoy their life

[PART I are

ato always ready alize according to inal their own talent, hobbies, and they soci Some Bright Spots ber of profession ally qualified

* India has the world’s largest num women. women in the world. ¢ India has largest population of working eons, scientists, ° India has a large number of female doctors, surg professors, than the United States. slowly With the help of these social reforms, the women of India rules started recognizing their true potential. She started questioning the laid down for her by the society. As a result, started breaking barriers and earned a respectable position in the world. Today Indian women have excelled In each and every field from social work to visiting space. There is no arena. Which remained unconquered by Indian women, be it politics, sports, entertainment, literature of technology.

Women of India are highly active today in politics, right from Sarojini Naidu, Vijay Lakshami Pandit, Sucheta Kriplani who were the torchbearers for the women of India. Mrs. Vijay Lakshami Pandit was the first Indian woman to hold a post in the cabinet, thus paving the way for other women. The most important name in the category of women politicians of recent times is Mrs. Indira Gandhi. She was the one who made world stop and notice the talent and potential of Indian women. She was the first women Prime Minister of independent India. Today her

daughter-in-law Mrs Sonia Gandhi is following her footsteps and leading the Indian National Congress. Other women

who have made

their name

in politics of India are

Shiela Dixit, Uma Bharti, Jayalalitha, Vasundhra and Mamata Banerjee.

Raje je and,

;

Mayawati

Indian women have achieved great laurels for the nation in every sport. Whether it is cricket or hockey India have natio nal women team for every game. Indian women cricket team has won As ia Cup of 2004 and 2005 and made country proud. Some women sport S icons of India are: :P.T. Usha (Athletics); Kunjarani Devi (Weight liftin g); Diana Edulji (Cricket); Sania Mirza (Tennis); Karnam Malleshw ari (Weight lifting)

Saina Nehwal (Badminton); Mary Kom (Boxing). These area is full of Indian women. We have man y

-

names to boas

t of like M.S. Subbulakshmi, Indian Nightingale L ata Mangeshkar, Asha Bhosle as famous singers. Madhu Bala, Rekha and Aishwarya Rai as Bollywood queens. In past women of India used to write, but their wo rk did not get the recognition. Today

they are Desai, Kiran Desai, Shobhaa Indian literature. Not just in over the world. Arundhati Roy

getting their dues. Ary De, Jhumpa Lahiri are famous name s in India now these women are recognized has been awarded with the Booker -ed all Prize of

PART II}

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235

1997 for her work "God of Small Things". Kiran Desai has been given the

Booker Prize of 2006 and Jhumpa Lahiri got recognition in the form of

Pulitzer prize.

Kiran Majumdar Shaw is the undisputed corporate queen of India. She is the richest Indian woman. She is the MD of Biocon India. She is the wealthiest entrepreneur of India. Majumdar Shaw initially wanted to become a doctor but could not get admission in medical colleges but even then she did not lose courage and went on to become India’s first woman Brew Master’ and subsequently corporate queen. Other names in this include Vidya Mohan Chhabaria, Chairperson of Jumbo Group. Naina Lal Kidwai, Vice Chairperson and Managing Director of HSBC Securities and Capital Market. Sullaijja Firodia Motwani and Mallika Srinivasan.

Mother Teresa is one name which every Indian is familiar with. She was the person who used tc consider the smile of her countrymen as her wealth. She worked for those whom even their own families have deserted. She did not care whether she is in the company of a person suffering from communicable disease or whether it is day or night. Whenever or whenever one needed her she was present. She opened various homes for these people most famous of which is ‘Nirmal Hriday”. It is open to everyone irrespective of caste, creed or religion. Another important names working for the cause of people includes Aruna Roy who worked for the save RTI Campaign and Medha Patekar who is associated with Narmada Bachao Andolan.

Indian women have not just made their mark on earth but they have engraved their name in the whole universe by flying to space Kalpana Chawla, who was the member of Colombia Space Shuttle, which exploded

on its way back, was the first Indian women astronaut who visited space

station. Following in her footsteps is another woman

of Indian origin,

Sunita William, who has become the second one to be the member of international Space Station crew. too subjected to domestic violence.— 34. Working women Although working women help in bringing financial stability to a family, violence their professional life often subjects them to increased domestic in India, according to a new study. 750 married The study carried out between 2005 and 2006 on that those who women aged between 16 and 25 in Bangalore, found 80 per cent higher chance of became employed during that time had an n who remained unemployed. being abused by their husbands than wome ing or t women whose husbands had difficulty find ia domestic PPoee ‘hort than twice as likely to i she a violence during that period. Th

arch,

conducted

by RTI

institute,

International,

in association

with

a North Indian

Carolina-

Institute of

earch vf sheers age headquartered ngalore and other U.S. institutions, examined

EE a

eeteosn spousal employment

hern violence in the sout

Indian city.

the

status and physical domestic

FROM DOMESTIC VIOLENCE LAWS ON PROTECTION OF WOMEN

236

[PART Il

in

ed that women marriages.—The findings also show 35. domes tic s were almost twice as likely to experience "love" 4 marriage s, highlighting ose in more traditional arranged UlenEE the adverse impact of flouting social norms. relationship ven 36. Why women not able to leave the to continue wil abusive.—It is general compulsion of a woman relationship even if abusive unbearable and even inhuman. tic The most commonly asked question about victims of domes violence is "Why do they stay?" Family, friends, co-workers, and. community professionals who try to understand the reasons why a victim of domestic violence has not left the abusive partner often feel perplexed and frustrated. Some victims of domestic violence do leave their violent partners while others may leave and return at different points throughout the abusive relationship. Leaving a violent relationship is a process, not an event, for many victims who cannot simply "pick up and go" because they have many factors to consider. To understand ithe complex nature of terminating a violent relationship, it is essential to look at the barriers and risks faced by victims when they consider or attempt to leave. Individual, systemic, and societal barriers faced by victims of domestic violence include:

Love

Fear.—Perpetrators commonly make threats to find victims, inflict harm, or kill them if they end the relationship. This fear becomes a reality for many victims who are stalked by their partner after leaving. It

also is common

for abusers

to seek or threaten

to seek

sole custody,

make child abuse allegations, or kidnap the children. Historically, there has been a lack of protection and assistance from law enforcement, the judicial system, and social service agencies charged with responding to domestic violence. Inadequacies in the system and the failure of past

ner Isolation.—One

victims

is to isolate

Financial

income

and

employment.

effective tactic abusers

them

from

dependence. —Some

have

been

Victims

any

sup

vic tims

prevented fro lack .vig who

do no

PART Il]

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237

Often, victims find themselves choosing between homelessness, living in

impoverished

and

unsafe

communities,

or returning

partner.

to their abusive

Guilt and shame.—Many victims believe the abuse is their fault. The perpetrator, family, friends, and society sometimes deepen this belief by accusing the victim of provoking the violence and casting blame for not preventing it. Victims of violence rarely want their family and friends to know they are abused by their partner and are fearful that people will criticize them for not leaving the relationship. Victims often feel responsible for changing their partner's abusive behaviour or changing themselves in order for the abuse to stop. Guilt and shame may be felt especially by those who are not commonly recognized as victims of domestic violence. This may include men, gays, lesbians, and partners of individuals in visible or respected professions, such as the clergy and law enforcement. Emotional and physical impairment.—Abusers often use a series of psychological strategies to break down the victim’s self- esteem and emotional strength. In order to survive, some victims begin to perceive reality through the abuser’s paradigm, become emotionally dependent, and believe they are unable to function without their partner. The psychological and physical effects of domestic violence also can affect a victim's daily functioning and mental stability. This can make the process of leaving and planning for safety challenging for victims who may be depressed, physically injured, or suicidal. Victims who have a physical or

developmental disability are extremely vulnerable because the disability can compound their emotional, financial, and physical dependence on their abusive partner. Individual

belief system.—The

personal,

familial,

religious,

and

oven cultural values of victims of domestic violence are frequently interw in their decisions to leave or remain in abusive relationships. For example,

victims who

hold strong convictions regarding the sanctity of

Their religious marriage may not view divorce or separation as an option. e is "wrong." Some victims of domestic

beliefs may tell them divorc er and violence believe that their children still need to be with the offend to them. that divorce will be emotionally damaging

estic violence are invested in

Hope. —Like most people, victims of dom and frequently strive to make them healthy their intimate relations hips if doormen aril e the violence bing: and loving. Some victim s hop have faith in er wants them to be. Others believe and apenicipacatnee to change.

and Perpetrators are not "all bad"

Soe ties. The abuser’s "good side cai have positive, as well as, negative quali g, partner is capable of being nurturin give victims reason to think their kind, and nonviolent.

who

are

societal values.—For victims Community service s and ional protec tion, there are a variety of institut nt wa d an e av le to ed prepar Communities ng abuse difficult and frustrating. pi ca es ke ma at th rs barrie

DOMESTIC VIOLENC E LAWS ON PROTECTION OF WOMEN FROM

238

[PART I

tim advocacy services and that have inadequate resources and limited vic nted, punitive, Or ineffective whose response to domestic abuse is fragme tims‘ and their children. can not provide realistic or safe soluti ons for vic sensitive and appropriate Cultural hurdles —The lack of culturally to leaving violent services for victims pose additional barriers relationships. en Examples of culturally competent services include offering writt translation of domestic violence materials, providing translators in domestic violence programs, and implementing intervention strategies that incorporate cultural values, norms, and practices to effectively address the needs of victims and abusers. The lack of culturally

competent services that fail to incorporate issues of culture and language can present obstacles for victims who want to escape abuse and for effective intervention with domestic violence perpetrators. Well-intended family, friends, and community members also can create additional pressures for the victim to "make things work."

37. Effect of domestic violence on victim.—As with anyone who has been traumatized, victims demonstrate a wide range of effect from domestic violence. The perpetrator’s abusive behaviour can cause an array of health problems and physical injuries. Victims may require medical attention for immediate injuries, hospitalization for severe assaults, or chronic care for debilitating health problems resulting from the perpetrator’s physical attacks. The direct physical effects of domestic violence can range from minor scratches or bruises to fractured bones or sexually transmitted diseases resulting from forced sexual activity and other practices. The indirect physical effects of domestic violence can range from recurring headaches or stomachaches to severe health problems due to withheld medica] attention or medications. Many victims of abuse make fre quent visits to their physicians for “amet Sa and for domestic violence-related injuries. unately, research shows that man victims wi i close the abuse unless they are directly a co re the physician. It is imp erative, therefore

vioural effects: of do m estic coping responses to trauma, such as:

common *

Emotional

¢

Denial or minimi zation of the ab use

withdrawal

* Impulsivity or aggressiveness

—

PART II]

THE PROTECTION OF WOMEN FROM DOMESTIC VIOLENCE ACT, 2005

239

e Apprehension or fear e Helplessness e Anger

e Anxiety or hypervigilance e¢ Disturbance of eating or sleeping patterns e Substance abuse e

Depression

e Suicide

e Post-traumatic stress disorder.

Some of these effects also serve as coping mechanisms for victims. For example, some victims tum to alcohol to lessen the physical and emotional pain of the abuse. Unfortunately, these coping mechanisms can serve as barriers for victims who want help or want to leave their therapists, and psychologists, Psychiatrists, relationships. abusive counselors who provide screening, comprehensive assessment, and treatment for victims can serve as the catalyst that helps them address or escape the abuse. Research indicates that the harmful effects of domestic violence can negatively influence parenting behaviours. Parents who are suffering from abuse may experience higher stress levels, which in turn, can influence the nature of their relationship with and responses to their children. Victims who are preoccupied with avoiding physical attacks and coping

with the violence confront additional challenges in their efforts to provide

safety, support, and nuturance

to their children. Unfortunately,

some

le to victims of domestic violence are emotionally or physically unavailab or depression. their children due to injuries, emotional exhaustion,

likely Studies have found the victims of domestic violence are more by their partners. to maltreat their children the those who are not abused line

or inappropriate discip In some cases, victims who use physical force ren from potentially more techniques are trying to protect their child abuser. For example, a victim severe forms of violence or discipline by the the child when the abuser threatens of domestic violence might slap neglectful behaviours by the harm if the child is not quiet. Seemingly, of the domestic violence. This is victim also may be a direct result the victim from taking the child to illustrated when the abuser prevents reveal the adult victim's injuries would the doctor or to school because the abusiveness.

fective, of domestic violence are not bad, inef ims vict f 0 ty ri jo ma e Th violence is one © but researchers note that domestic s, nt re pa e iv us ab or ih that can negatively influence parenting. nts a multitude of stresso rs g abuse, are supportive, nurturin pare violence. trchildren’s exposure to domestic whee a So eee opthe beneficial the parenting behaviours, it is on ence viol of act : 7 ibe ae support their distress so they can e viat alle that ices serv e dda kebtiv ildren. and benefit the ch

[PART I

STIC VIOLENCE LAWS ON PROTECTION OF WOMEN FROM DOME

240

strategies that frequently are recommended

Protective friends,

and

social

providers

services

contacting

include

by family, the police,

obtaining a restraining order, or seeking refuge at a friend or relative’s home or at a domestic violence shelter. It is ordinarily assumed that these suggestions are successful at keeping victims and their children safe from violence. It is crucial to remember, however, that while these strategies can be effective for some victims of domestic violence, they can be unrealistic and even dangerous options for other victims. For example, obtaining a restraining order can be useful in deterring some perpetrators, but it can cause other perpetrators to become increasingly abusive and threatening. Typically, victims do not passively tolerate the violence in their lives. They often use very creative methods to avoid and de-escalate their partner’s abusive behaviour. Some of these are

whether to use, adapt, replace, or discard certain approaches given the risks they believe it will pose to them and their children. Examples of ° Complying, placating, or col luding with the perpetrator; * of Minimizing, making it; denying, worse: , or refusing g to talk about the abuse for fear °

Leaving or stayin in : sécalsea ying the relationship so the violence

does not

* Fighting back or defy ing the abuser: ° oa the Children to a neighbor or family member's home; * Engaging in Manipu lative be haviours, such as lying as a way Survive; . to *

Refusing or nor fo llowing through with Services to avoid ange the abuser: ring

* Dain Using : or abusin g

Subst

ances as an

"

"escape"

"

or to numb physica]

* Lying about the abuser’ to avoid a possible att ers adllcrim inal activity or abus e of the children

* Tryi ng iaie to improve perpetri Alis though mechan

ms

persons

and

the

relationship

or

finding

help

for

the

e ‘aro? t fortheswc €clive

: strategies act as coping and Su rviva] they are fr professionals “quently misinterpreted who view the victim’ by lay

S_ behaviour

OOOO

as

PART Il]

THE PROTECTION OF WOMEN FROM DOMESTIC VIOLENCE ACT, 2005

241

uncooperative, ineffective, or neglectful, Because victims are very familiar with their partner's pattern of behaviour.

38. Behavioural

pattern

of abuser.—Examples

of the

most

prevalent behavioural tactics by perpetrators include: e The perpetrator’s primary goal is to achieve power and control over their intimate partner. In order to do so, perpetrators often plan and

utilize a pattern

of coercive

tactics aimed

at instilling

fear, shame, and helplessness in the victim. Another part of this Strategy is to change randomly the list of "rules" or expectations the victim must meet to avoid abuse. The abuser’'s incessant degradation, intimidation, and demands on their partner are

effective in establishing fear and dependence. It is important to note that perpetrators may also engage in impulsive acts of

domestic violence and that not all perpetrators planned or systematic way.

act in such

a

e Usually, people outside the immediate family are not aware of and do not witness the perpetrator’s abusive behaviour. Abusers who maintain an amiable public image accomplish the important task of deceiving others into thinking they are loving, "normal," and incapable of domestic violence. This allows perpetrators to escape accountability for their violence and reinforces the victims’ fears that no one will believe them.

e Abusers often engage in an insidious involves blaming the victim for the perpetrators may accuse the victim "provoking" the abuse. By diverting

type of manipulation that violent behaviour. Such of "pushing buttons" or attention to the victim's

actions, the perpetrator avoids taking responsibility for the abusive behaviour. In addition to projecting blame on the victim, abusers also may project blame on circumstances, such as making the excuse that alcohol or stress caused the violence. e There is a common belief that domestic violence is a result of poor Abusers problems. management or anger control impulse

routinely

claim

that

they "just lost it, " suggesting

that the

Violence was an impulsive and rare event beyond control. does it Domestic violence is not typically a singular incident nor

of tactics simply involve physical attacks. It is a deliberate set power in where physical violence is used to solidify the abuser’s to 10 percent of the relationship. In reality, only an estimated 5 aggression. Most perpetrat ors have difficulty with controlling their de the family, such as police abusers d 0 not assault others outsi ghbors, but direct their abuse toward officers, coworkers, or nei distinction challenges claims that they the victim or children. This cannot manage their anger. or themselves or their actions as violent e Perpetrators ra rely view deny, justify, and minimize their abusive. As a resu It, they often an a buser might forcibly push the victim behaviour. For example,

DOMESTIC VIOLENCE LAWS ON PROTECTION OF WOMEN FROM

242

others that the Priaew down a flight of stairs, then tell >

Abusers

punching

also

rationalize

or choking,

serious

physical

as "self-defense."

[PARTII

ares

eae

Abusers

ian

iin ee

ae their partner presen they are harming admit Reson to mie challenges to persons who are trying ou ea that perpetrators do acknowledge to the victim

eness or make behaviour is wrong, but then plead for forgiv promises of refraining from any future abuse. Some of the abusers also possess positive qualities. There are abusers who are remorseful, accept responsibility for their violence, and

eventually stop their abusive behaviour. Perpetrators are not necessarily "bad" people, but their abusive behaviour is unacceptable. Some perpetrators have childhood histories where they were physically or sexually abused, neglected, or exposed to domestic abuse. Some suffer from substance abuse and mental health problems. All of these factors

can influence their psychological functioning and contribute to the complexity and severity of the abusive behaviour. Perpetrators need support and intervention to end their violent behaviour and any additional problems that compound their abusive behaviour. Some

abusers can change and become nonviolent.

39. Not mere legislations but other strategies needed to address problem of domestic violence.—Domestic violence is a complex problem and there is no one strategy that will work in al situations, not even the legislations, however strongly worded it may be. The factors responsible for domestic violence are: (a)

Gender dynamics of power;

(b) Culture and (c) Economic. A multi-layered Strategy is needed to address the problem in the right tive, a iaperspec peclive . At different levels, different Strategies are needed to be

(1) spare level of family-ea ch members to be involved to a ress the problem and they should sit together to find the Solution, instead of accr uing one or the other: (2) In the local community, ce i the traditio nal elders, religious eaders, community base d groups, local councils , village lev , el bodiies es must So s lve the matters wi th in i address it at the budd ing Stage; — (3) The professional groups * women and men groups, NGOs must not allow if to

(4)

(5S)

beyond reach:

Th e c a Medi a< mu St Pl e play ay unun bibi aseed| as

National

level: and (6) Internationa] level, Domestic violence is a_ health. develo

pmental

role | , not merely pu blicising

and human

or private" sector.

right problem

legal, economic, educational not merely confin ed to indoors

PART Il]

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243

The areas of intervention are: * advocacy and awareness raising * education for building a culture of non-violence ¢

training

* resource development e

direct service provision to victims and perpetrators

¢ networking and community mobilization ¢ direct intervention to help victim-survivors rebuild their lives

¢ legal reform *

monitoring interventions and measures

e

data collection and analysis

¢

early identification of ‘at risk’ families, communities, individuals.

These areas are not mutually upon several areas at once.

exclusive;

interventions

groups, and may

touch

Above all, five underlying principles should guide all strategies and interventions attempting to address domestic violence: ¢

prevention

e

protection

¢ early intervention

e rebuilding the lives of victims ¢ accountability. Women need to be empowered through education, employment opportunities, legal literacy, and right to Inheritance. Human rights education and information regarding domestic violence should be

provided to them because this is a matter of their absolute rights. Integrated supportive services, legal intervention and redress should be available

made

women

in situations

of domestic

violence.

Assistance

to help

part of the rebuild and recover their lives after violence should be

intervention strategy. including counselling, relocation credit support, and employment. ided by all relevant Consistent support for women must be prov h, welfare, and the private sectors—the criminal justice system, healt women via informal net-works sector. Support must also be available to

local community groups. such as family, friends, neighbours, and institutions should be pene Community groups and Government and children at risk *

boys and girls, to identify women, men adolescent a them to confidential and ai r refe to and , ence viol domestic e must ‘ lable, COMI such services are not avai services. Where helped to establish

hanisms local culturally appropriate mec

women.

Men

need

to challenge

other men

to suppol

to stop abusing women

and

to

[PART Il

FROM DOMESTIC VIOLENCE LAWS ON PROTECTION OF WOMEN

244

pport for requires Thisand the suraising of change the norms that encourage this violence. me men to act as healthy role models to younger boys in a non-violent climate to respect ee girls need all the protection and

olescent

Sia to from society equip girls participation

uld be ~n suppo rt that sho

their rights ode women. They need clear messages about that and the educational system. Educational programmes with self-esteem and negotiation skills, and eet of girls in leadership roles should become part of the schoo

curriculum.

Adolescent boys need positive role models and clear messages from the men in their families and society in general that violence against women is not acceptable and that they will be held accountable. Like adult men, adolescent boys need access to services to help them deal with any violent behaviour they may have. In traditional societies, families have relied upon community-based support mechanisms to resolve issues of conflict. The local community therefore needs to be mobilized to oppose domestic violence in its midst. Actions taken by local people may include greater surveillance of domestic violence situations, offering support for victim-survivors, and challenging men to stop the violence.

Complacency

needs

to be replaced

with

active

intervention

and

education. Community information and education programmes regarding

the nature and unacceptability of domestic violence should be developed. Sucii programmes should address cultural forms of behaviour that uphold male aggression, beating, punishment and abuse of women as

acceptable. Traditional cultural practices,

that violate women’s

integrity

need to be re- examined and challenged. Culture is not static, and newer forms of cultural norms need to be developed that respect women and promote their dignity and safety.

Community elders and religious leaders hav e the responsibility to demonstrate leadership in this area. For e xample, religious leader s should be encouraged to re-examine doctrines and cultural practices tha t lead to the subordination of women and viol ation of their rights. Local council bodies (e.g., the ‘panchayat’ system in India) should play a str ong role in creating a culture of non-violen ce, in setting up san cti ons , negotiating appropriate local cultural resp ons €s to preventing vio len ce, and monitoring respect for and implemen tatio n of, the sanctions tha t in place. are Creating

awaren

ess about the impact of estic vio] communities conveys the importance of Preventing dom such violenc ence women

and

violence

through

health

children.

workers

accountability,

involvement and

which

ma : ted respons of local community grou, to

Developing

integra

women

serves

in

is a Significant

itself

to

create

suse

st¢

€ against domestic

community

yey

adapting to change is difficult, protection should be provid >»

on

and

since

0 activists,

PART II]

THE PROTECTION OF WOMEN FROM DOMESTIC VIOLENCE ACT, 2005

245

human rights advocates and community workers. Ultimately, human and financial resources are key to any progra mme development and delivery. Professionals like doctors, lawyers, psycholo gists, nurses, social workers, welfare workers and other prof essional are key players in Opposing violence against women. Their memb ers may come into contact with situations

of domestic

violence

on

a regular basis,

but may

recognize the signs because of their own biase s, background

not

or lack of

training. It is critical that such organizations build domestic violence and

human rights curricula into their professional train ing and _ that professionals in the field receive regular training on these areas. Such associations need to develop protocols for identifying and referring cases of domestic violence to appropriate bodies, and screenin g measures for detection and early intervention. These protocols must be deve loped in collaboration with experts in the domestic violence field. (NGOs), like women’s organizations, have worked in partnership

with Government agencies and international organizations to provide a diversity of services, and education and awareness programmes. Their Capacity to continue to deliver a range of services should be

strengthened, particularly in collaboration with State agencies towards women among their members and encouraging members to seek appropriate support and assistance.

The

media plays a pivotal role in both influencing and changing

social norms and behaviour. Repeated exposure to violence in the media has been associated with increased incidence of aggression, especially in children. In the area of domestic violence, media campaigns can help to reverse social attitudes that tolerate violence against women by

questioning

patterns

of violent

behaviour

accepted

by families

and

societies. Collaboration with the media needs to focus on creating new messages and new responses to reduce domestic violence. Hence a

conscious effort to make media professionals aware of the issues, can play an important role in addressing violence against women.

Alternative media channels such as theatre groups, puppeteers, community radio stations, musicians and performers of all sorts have a role to play in raising public awareness of the issue, and creating role models for men and young people in the community. Religious leaders need to re-examine interpretations of religious tests and doctrines from the perspective of promoting equality and dignity for women. Many men who abuse women justify such behaviour on a religious basis, and many

cultural practices that abuse and violate

women are justified in the name of religion. Religious leaders at all age

have a responsibility to ensure that religious interpretations are not use to oppress women. Rd ete factor to —There is no one single factor violence. 40. wagner s of domestic perpetrated against women. Increasingly, research account for vio the inter-relatedness of various factors that should had eign aetutandiré of the problem within different cultural

improve

ou

DOMESTIC VIOLENCE LAWS ON PROTECTION OF WOMEN FROM

246

[PA RT Il

tionalized social and lex and inter connected institu e to the violence factors have kept women particularly vulnerabl ral S cultu e ual power

of historically uneq directed at them, all of them manifestations ributing to this unequal relations between men and women. Factors cont the family eae ea power relations include: socio-economic forces, ol over : where power relations are enforced, fear of and contr cu. tur sexuality, belief in the inherent superiority of males, and and_ children sanctions which have traditionally denied women independent legal and social status. Lack of economic resources underpins women’s vulnerability to violence and their difficulty in extricating themselves from a violent relationship. The link between violence and lack of economic resources and dependence is circular. Without economic independence, women has no power to escape an abusive relationship. It also happens that a women is desperate need of or home based exploitive labour. The men also feel the economic independence of women as a threat and that leads to increased violence. Another factor is when the male partner is unemployed, he feel, undermined in the household. The violence on women is linked to destabilization of economic patterns in society.

The cultural ideologies, very often provide legitimacy for violence against women in certain circumstances. Some religious and historical traditions, in the past and even today, have directly or indirectly sanctioned the chastising and beating of wives. In some cultures there is a notion of proprietary right over wife and children, because invariabiy the male controls the family wealth and the decision making of the family remains in his control and authority. Women's sexuality is also tied to

the concept of family honour in many societies. Excessive consumption of alchohol

and other drugs has also been noted as a factor in provoking

aggressive and violent male behaviour. Ov days, women’s participation in socia Nowa l netw as a critical factor in lessening their vulnerability to ability to resolve domestic violence. Lack of legal and police protection, particular] y the home is a strong factor in perpetua ting violen ce The factors that perpetuate dom estic violence follows:

orks has been noted violence and in their within the sancity of against women.

can be identified as

Cultural.

(a) gender specific socialization;

(b) Cultural definition of appropriate sex role: (c) expectations of role within relationships: (d) belief in the inhere nt superiority of male s: (e) values that give men proprietary rj

(f) notion of the family being: (0 private sphere; and (i? male dominated.

ght over , women and girls:

PART|i]

THE PROTECTION OF WOMEN FROM DOMESTIC VIOLENCE ACT, 2005

(g) customs

(h)

(0

247

and ritual of marriage like dowry, marriage gifts

etc. Heavy expenses involves in marriages. consideration that women have no role to play in family life except that of house-hold. In this sphere too the women are not expected to cook at their own will without consulting choice and taste of the male counter part. acceptability of violence as means to resolve conflict.

Economic

(0 Economic dependence ‘of women

on men, from birth till death, unless she is educated enough to sustain herself:

(ii) her limited access to cash and credit: (iti) discriminatory laws with regard to inheritance, succession, right to property etc. There are only few communities which have liberal inheritance rights;

(iv)

limited access to education or any training program;

(v) limited access to employment and jobs or professional activities, though now a days there are more women as lawyers, doctors etc.

(vd (vii) (viii) (id (xj

(xi)

limited choice to jobs, employment, and other professions; limited scope in business; limited scope in judiciary, law making, politics etc. not getting adequate response from police;

not getting quick litigations taking widows do suffer she is of younger

decisions in judicial matters, prolonged its own toll on her; enormously in all matters, particularly if age.

Legal

(i) (ii) (iii) (iv)

their legal status is not well defined; mostly ignorant of their legal rights or human rights; implementation mechanism is very weak; do not have sufficient representation in judiciary, law enforcement, law making, decision making at any level.

Politics

representation in power politics, always cited the example of first woman

(0 Under

woman

president,

woman

chief

ministers

though we are prime minister, and

same

in

politics but the over all representation is very poor. personal laws; (ii) they cannot challenge the religious or ious and other such (iii) limited participation in political , relig

(iv)

cruci

organisations or institutions. ate sphere, beyond notion being that the "family" being a priv

inery. the control of even Government mach

the most of d omes;tic violence.—Perhaps 41. Consequences denial of the against women and girls is al consequence of violence

[PART I

DOMESTIC VIOLENCE LAWS ON PROTECTION OF WOMEN FROM

248

fundamental

rights to wor

human

= Ria

a i

ion: Universa instruments such as the _ e af” is sa adopted in 1948, the Convention on the na ee — of Discrimination Against. Women (CEDAW), adopted in ~ a Convention on the Rights of the Child (CRC), adopted in 1989 g. principles of fundamental rights and freedoms of every — Both CEDAW and the CRC are guided by a broad concept of a rights that stretches beyond civil and political right to the core issues 0 economic survival, health, and education that affect the quality of daily life for most women and children. The two Conventions call for the right to protection from gender-based abuse and neglect. The strength of these treaties rests on an international consensus, and the assumption that all practices that harm women and girls, no matter how deeply they are embedded in culture, must be they are embedded in culture, must be eradicated. Legally binding under international law for Governments that have ratified them, these treaties oblige Governments not only to protect women from crimes of violence, but also to investigate violations when they occur and to bring the perpetrators to justice.

There is a growing recognition that countries cannot reach their full potential as long as women’s potential to participate fully in their society is denied. Data on the social, economic and health costs of violenc e leave no doubt that violence against women undermines progress towards human and economic development. Women’s partici pation has become key in all social development programmes, be they environmental. for

poverty

alleviation,

or for good

governance.

By

hampering

involvement and participation of women, countries are human capital of half their populations. True indicators

the

full

eroding the of a country’s

commitment to gender equality lie in its actions to eliminate against women in all its forms and in all areas of life.

violence

Domestic violence against women leads to f.ar-reaching i ; physi. cal psychologica l consequences, some with Bony ane

ito—oooe

in risk to health both the mother a; us. In the worst casthe es, all of of thes e examples of Bomed ctil violence can result in the ve e death of the w ic : or expartner.

eat

Murdered

by her Current

PART Il]

THE PROTECTION OF WOMEN FROM DOME STIC VIOLENCE ACT, 2005

249

Sexual assaults and rape can lead to unwanted pregnancies, and the dangerous complications that follow from resorting to illegal abortions. Girls who have been sexually abused in their childhood are

more likely to engage in risky behaviour such as early sexual intercourse, and are at greater risk of unwanted and early pregnancies. Women in violent situations are less able to use contrace ption or negotiate safer sex, and therefore fun a high risk of contracting sexu ally transmitted diseases and HIV/AIDS. The impact of violence on women's mental healt h leads to severe and fatal consequences. Battered women have a high incidence of stress and stress-related illnesses such as post-traumatic stress syndrome, panic attacks, depression, Sleeping and eating disturbanc es, elevated blood pressure, alcoholism, drug abuse, and low self-estee m. For some women. Fatality depressed and demeaned by their abuser, there seems to be no escape from a violent relationship except suicide. Children who have witnessed domestic violence or have themselves been abused exhibit health and behaviour problems, including problems with their weight, their eating and their Sleep. They may have diffic ulty at school and find it hard to develop close and positive friendships. They may try to run away or even display suicidal tendencies. Health consequences (a)

Injuries from minor to major, both external partial or permanent or semi-permanent;

(b)

Unwanted pregnancy; gynecological problems, abortion, miscarriage, pelvic inflammation, chronic pelvic path, asthma, HIV/AIDS, headache, irritable bowel syndrome.

(c)

Self injurious behaviour

drug

addiction,

like smoking,

unprotected

sex,

the

or internal:

drinking,

resultant

addiction,

effect of

which may often be total and gravely injurious.

(dq) Depression, fear, anxiety, low self-esteem, sexual dysfunction, digestion problems, obsessive compulsive disorder, post traumatic stress disorder. (e)

Suicide, homicide, tendency mortality, HIV, AIDs.

to commit

suicide,

maternal

(f/ Black eyes, split lips, muggings and rapes, repeated sexual violations, unnatural sex. 42.

Unethical

violence—Blue

films and marketing of women.—

This is an other bad act to humiliate and pressurize the women sexual

Amnesty

Abuse

or

marketing.

international,

As

Hundreds

according

to

Reports

of the Women

record blue film a as they consider the women

of HRCP

for and

to

are blackmailed

a sign of enjoyment

and

marketing. An other words the models featuring in the Pop Songs with loose skirts on the Body create a bad omen and spoiling the very ae the Society. Many people are earning money by pee rea: Sat

featuring young mature and immature girls on the si

Force. The same situation prevails in jails also where they and blue films are made

in the Jails also.

1 ct

i

are threatenec

[PA RT ll

FROM DOMESTIC VIOLENCE LAWS ON PROTECTION OF WOMEN

250

than : using drugs.—T oday, more Women of all pai: saints million women in this country use drugs. all women age 1 : atin cultures. It is reported that almost half of mil “oe om en, nearly drugs at least once in their life. Of these wom have used marijuana wl — e used cocaine and more than 6 million Also, than one drug.. past year. Most women drug abusers use more ain drugs, such as crack women can become addicted quickly to cert r addiction may be cocaine. Therefore, by the time they seek help, thei difficult to treat. Women who use drugs often suffer from other serious health problems, sexually transmitted diseases, and mental health problems, such as depression. Many women who use drugs have had troubled lives. Studies have found that at least 70 percent of women drug users have been sexually abused by the age of 16. Most of these women had at least one parent who abused alcohol or drugs. 43.

life —Women

Troubled

Often, women who use drugs have low self-esteem, little selfconfidence, and feel powerless. They often feel lonely and are isolated from support networks.

Women who use drugs risk becoming infected with HIV, the virus that causes AIDS. The virus can be spread through needles used to inject drugs. Therefore, women who inject drugs and share needles are especially at risk.

The physiological effects of drug abuse are memory loss, blocked out memories, loss of emotion, sensitivity to certain situations of people , and mood swings.

CHAPTER 1 PRELIMINARY eg i éall ae eee e (2) Jammu

ig extent and commencement.—( 1) This Act ; ; 1e Protection of Women from Dom estic Violence

It extends to the and Kashmir.

w

hole of India except

(3) It shall come into force on suc h

Government appoint.

m ay,

by

notification

ie penn i!

in

date!

the

Right to secure

ccc 1.

wef.

housing

26.10.2006,

as

the

Official

of

Central

Gazette

SYNOPSIS

No. S.0.1776(F), dated 17.10.2006 2. Object of new legislation—Enforcement et. A a

the State

see

|

fn

Me

tee 4

se

ee

RS

ee mr

See 251

. 259

PART II]

THE PROTECTION OF WOMEN FROM DOMESTIC VIOLE NCE ACT, 2005

a

6: Coveraaapmme loopholes) 7.

a...

251

252

.

GREE.

Why this legislation was needed—lIts salient youn...

© A; . a.

eee. 262

ee,

257

COMMENTARY 1. Notification No. S.0.1776(F), dated 17.10.2006.—In exercis e of powers conferred by sub-section (3) of Section 1 of the Protection of Women from Domestic Violence Act, 2005 (No. 43 of 2005), the Central

Government by appoints 26.10.2006, as the date on which the said Act Shall come into force. Published in Gazette of India. Extraordinary, Part Il, Section 3(ii) dated 17.10.2006 Page 1242.

Act will extend to the whole of India except to the State of Jammu and Kashmir in area of protection of women who are victims of violence of any kind occurring within family.

2. Object of new legislation—Enforcement.—This legislation is primarily meant to provide protection to woman from violence at the hands of the husband or male live-in partner or his relatives. The law also extends its protection to women who are sisters, widows or mothers. Domestic violence under this Act includes actual abuse or the threat of abuse whether physical, sexual, verbal, emotional or economic. Harassment by way of unlawful dowry demands to the woman is also covered under the definition . Ministry of Women and Child Development had issued a notification to bring it into force from the 26th day of October 2006, vide S.O. 1776 (E), dated the 17th October 2006 published in the Gazette of India, extra,

Pt-Il. The Act was passed by the Parliament in August 2005 and assented to by the president on 13th September 2005. But implementation was pending as detailed consultations were required with the State Governments and other agencies for framing the Rules. The Ministry simultaneously issue another notification laying down the rules framed for the implementation of the Act. These rules provide for among other things, appointment of protection officers, service providers and counselors. Action to be taken in the event of the respondent breaching

the protection order passed by the Magistrate in favour of the aggrieved

woman is also prescribed in these Rules. The Act will go a long way to provide relief to the women from domestic violence and get their due. The Ministry had requested all State Governments and Union Territories to ensure that the necessary administrative arrangements are immediately

put in place for the commencement of the Act. There had been consideration delay by some State Governments in appointing protection officers, service providers and counselors. To the information, in same is States and Union Territories it is yet to be implemented. Then there about lack of awareness also among women particularly in rural areas features of the Act the legislation and basic features there of. The salient are: | or have beet 1ina The Act seeks to cover those women who are have lived together in a relationship with the abuser where both parties

[PART Il

VIOLENCE WOMEN FROM DOMESTIC LAWS ON PROTECTION OF

262

or a shared

household

relationship

and are related by ponsan gaa —

in the nature

of marriage,

or

adop us family are also

—— ee snothers, mae relationship with family members living — ee ; SIS ers, Wl included. Even those women

who are

legal protection under one or living with the abuser are entitled to get a the proposed Act. of abuse actual abuse or the threat ‘Domestic violence includes tional and economic. that is physical, sexual, verbal, emo ry demands to the woman or Harassment by way of unlawful dow under this definition. her relatives would also be covered

important features 3. Right to secure housing.—One of the most ing. The Act provides for of the Act is the woman’s right to secure hous ed household, the women’s right to reside in the matrimonial or shar d. This right is whether or not she has any title or rights in the househol

Court. These secured by a residence order, which is passed by a residence orders cannot be passed against anyone who is a women. 4. Preventive order.—The other relief envisaged under the Act is that of the power of the Court to pass protection orders that prevent the abuser from aiding or committing an act of domestic violence or any other specified act, entering a workplace or any other place frequented by the abused, attempting to communicate with the abused, her relatives and others who provide her assistance from the domestic violence.

The Act provides for appointment of Protection Officersand NGOs to provide assistance to the woman w.r.t medical examination, legal aid, safe shelter, etc. 5. Non-bailable offence.—The Act provides for breach of protection order or interim protection order by the respondent as a cognizable and non- bailable offence 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. Similarly, non-compliance or discharge of duties by the Protection

Officer

is also sough t to be mad

under the Act with similar punishment.

;

can

6. Covering legal loophole.—Presently, where a woman is subjected to cruelty by her husband or his relative. ; elative, : , Section 498A of the Indian Penal Code. The civil Se law does Ocoee not, however, address this phenomenon in its entire ty. Ther efore, it was necessary to enact a law, keeping in view the rights guarante ed under articles 14, 15 and 21 of the Constitution to provide for a reme dy under the civil law, / which is intended; to protect*t the the woman form being victim s violence and to prevent the occurrenc of e domestic ieee. in ¥ oo The new Act is an important step in that direction

a

In short "physical abuse’ covers bea ting, sloppin , hitting iti kicking punching, pushing, sh oving or causing bodily .pain or6 in jury in any other manner. "Sexual Violence" wil] incl ude-forced —

sexu al violence,

forcing to look

PART II]

THE PROTECTION OF WOMEN FROM DOME STIC VIOLENCE ACT, 2005

253

at pomography or any other obscen e pictures or material, any act of Sexual nature to abuse, humiliate or degrade the woman or which will otherwise be violative of her dignity or any other unwelcome conduct of Sexual nature. It also include child sexual abuse. It covers all aspects of sexual violence or abuse which may not be illustrative. Verbal and emotional abuse" are in fact worst of its kind. It includes-insults, name-calling, accusation on the character or conduct of

the woman,

insult for not having male child insults for not brin

ging dowry, preventing her or a child in her custody from attending school, college or any other educational institution, prev enting her from taking up a job, forcing her to leave a job, preventing her or a child in her custody from leaving the house, preventing her from meeting any person normal course of events, forcing her to get married, when she does not want to get married, preventing her from Marrying a person of her choice, of his or their choice threat to commit suicide, any other verbal or emotional abuse. This is also not exhaustive but illustrati ve only. There can be any other kind of verbal or emotional violence. Say for example insulting her for giving birth to a female child or not able to conceive or in not allowing her choice in food, clothes etc. or not permitting her to unit a male doctor. ‘Economic Violence” will include-not providing her money for maintaining herself or her children; not providing her food; clothes, medicines for her or her children; stopping her from carrying on her employment; disturbing her in carrying such employment, not allowing

her to take up an employment;

taking away her income from her salary,

wages etc.; not allowing her to use her salary, wages etc.; forcing her out of the house where she lived in a shared house hold; stopping her from accessing or using any part of the house; not allowing her to use clothes, articles or things of general house-hold use ; not paying rent if she is

staying in a rented accommodation. There can be other related economic

violences too not specifically enumerated

here.

Domestic violence being a violence at home is an invasion on ones right to live safely. It infringes on one’s basic right to feel comfortable within the confines of one’s house which to all to all domestic violence victims is not insecurity.

a "home"

A "home"

where

one

can

live without

fear or

In India the cases of domestic violence are alarming and continuing to be so. In 2005 UN Population Fund Report, it was found that 70% “4 married women in India between the age group of 15 and 49 are victims of beating, sexual assaults including rape, forced sex, EIIEES ee “ India, as per statistics 40% of married women are physically prt male partners. These statistical figures are not correct, rea

i

alarming. The instances of domestic violence are much more. Me : ie in urban areas. The instances of domestic violence are rarely . po amar, even made known to neighbours and very often even the sa r mel of the family are not aware of the violences by the husband.

[PART Il

WOMEN FROM DOMESTIC VIOLENCE LAWS ON PROTECTION OF

254

islation,

definition

the

of violence

has

been

Even set . violence and mental torture. leek iat yitseapmenent nal tio emo n eve e lud inc to broadened, against se en can seek protection ldr chi and s ter sis s, her the mot n ci Sai of abuse in marriages. eve abuses or any other kind p cannot be compelled to gen marriage cannot be thrust, she marry the person she wants. whom she does not want and can a ed at the hands of — For long, the women have suffer intangible abuse like menta om exploitation ranging from physical to ated as child bearing machine, psychological torture. Women had been tre too long now, the women had rather male child bearing machine. For y with no right to raise their accepted domestic violence at their destin be because they are voice. This may be due to various reasons may and society, vulnerable, scared of being ostracized by her own people ch are male having little faith on justice system and policing whi en who dominated. Domestic violence still remains a taboo for most wom on continue to suffer from it waiting for ultimate death. This legislati appears to be a comprehensive law and addresses to various issues related to a woman. It is progressive one, because the domestic relationships are not restricted in the context of marital status alone. It has given a new dimension to abuse" to include not merely physical or mental but sexual, verbal, economic and harassment.

In addition to physical violence of beating, slapping, hitting, kicking and pushing, the Act also covers sexual violence like forced intercourse, forcing his wife or male to look at pornography or any other obscene pictures or material and child sexual abuse. The new law also addresses sexual abuse of children and forcing girls to marry against their wishes. This certainly proves that the new Act has been formed keeping the current relationship culture in India.

The Act has also defined Physical Violence very comprehensively, as: ¢ Any kind of bodily harm or injury ° A threat of bodily harm * Beating, slapping and hitting. Thus, physical violence is defined as an y act or conduct which is of such a nature as to cause bodily pain,

harm. or danger to life, limb health, or an act that impairs the heal th or development of th as aggr an.ieved, or that includes assault. criminal intimidati idation and :crim siaa lie inal MeBy Under

|

ete against women

; is not always physical. The

elinition to inc|lude sexual , verbal and economic the law, Sexu al Violence will include:

Forced

sexual

law h violen ce. =

encounter

¢

Forcing g a wom: oman

¢

AnyA av actaa of se sexu: ual womans’ integrity.

to look at pornography or any obscene c

nature

to

abusse, e

nili humil iate

Sos

or

ict

ae degrade a

PART II}

THE PROTECTION OF WOMEN FROM DOMESTIC VIOLENCE ACT, 2005

255

The law is also tough on men who Subject wom en to name calling or verbal abuse. While Verbal Violence is often trivialized as unimportant, observers say it can damage a woman's self-esteem The Act defines Verbal Violence as: e Name calling

° Any kind of accusation on a woman's character or condu ct * Insults for not bringing dowry e Preventing a woman from Marrying a person of her choic e e Any form of threat or insults for not producing a male child. Another significant step has been to recognize Economic Violen ce. Under the Act, Economic Violence includes: ¢ Not providing money, food, clothes, medicines e Causing hindrance to employment opportunities e Forcing a woman to vacate her house ¢

Not paying rent.

The inclusion of economic violence is an important of thinking of the legislators since any deprivation of economic or financial resources to the aggrieved woman or child can be claimed under the law and even with holding of such resources falls within the ambit of law. In marital disputes, normally the husband tends to deprive the wife of necessary economic facilities as a weapon. Even the personal assets of the wife like jewellery are sold without the consent of wife or by show of force or emotional black mail. Under the Act the law provides for the setting up and function of Protection Officers. The State Government will appoint protection officers to help the affected women. These protection officers are likely to be appointed in every district across the country, helping the victims file cases before the Magistrate. According to the provisions of the Act, the

woman

will

be

given

ordered

not

to attempt

complete

protection.

to communicate

Her'tormentor’

with

her,

would

including

be

at her

workplace. The Court can pass ‘protection orders’ so that the charged person will not cause violence to the woman's relatives. Apart from this,

the woman can rightfully continue to live under the same roof with the man while fighting him in the Court. According to the Act, the woman will have the right to a ‘secure housing’ in the matrimonial or shared household. The PO will assist the Court in making a Domestic Incident Report or an application for a protection order on behalf of the aggrieved

woman and/or child. POs will ensure that aggrieved people are provided mene legal aid, medical services, safe shelter and other required debiee 7 POs will ensure that necessary information on lib

to the aggrieved woman, that orders for ns, Bhi complied with. Importantly, the PO can be penalised for failing/refusing provided

VIOLENCE WOMEN FROM DOMESTIC LAWS ON PROTECTION OF

256

[PAR T Il

e r sanction of the Stat io pr e th o is ov pr e th with to discharge his duty, Government is required. an power of the Court id the of t tha is d ge sa vi g i The other relief en er from aiding or comm us ab the t en ev pr t tha p ace " protection orders cified act, entering work spe er oth y an or ce len vio mmunica e act of domestic abused, attempting to co the by ed nt ue eq fr ce pla any other s. ets used by both the partie ass y an ing lat iso , ed us ab the with interim of protection order or an It also provides for a breach able and non-bailable offence niz cog a as t den pon res a by er protection ord which may extend to a year or m, ter a for ent onm ris imp h wit e punishabl ees or with both. nty thousand rup with a fine, which may extend to twe of duties by the Protection Similarly, non-compliance or discharge nce under the Act with similar Officer is also sought to be made an offe punishment.

wife, An important addition to the law ensures that an aggrieved if Thus, so. who takes recourse to the law, cannot be harassed for doing cannot a husband is accused of any of the above forms of violence, he wife's during the pending disposal of the case prohibit/restrict the continued access to resources/facilities to which she is entitled by virtue of the domestic relationship, including access to the shared household. In short, a husband cannot take away her jewellery or money, or throw her out of the house while they are having a dispute. A woman who is the victim of domestic violence will have the right to the services of the police, shelter homes and medical establishments. She also has the right to simultaneously file her own complaint under Section 498A of the Indian Penal Code. Sections 18-23 of the Act provide a large number avenues for an abused woman to get relief. She can get, through the Courts, Protection Orders, Residence Orders, Monetary Relief, Custody Order for her children, Compensation

Order and Interim/Ex parte Orders.

Need not repeat here that domestic violence vi rvasi is the m ost pervasive of

;’ violations. human right

tic aa ee rea ielebison > all-encompassing definition of domes ph te a only physical violence by the husband, such as Senitee-or

sities.

se,

onysically hurting his wife, or sexual violence but also verbal or emotional

violence

such

like forced

as insulting the

wife or preventing her from taking up a job, and even economic vi such as not allowing the wife to use hea aes ) i oes ae ami Sans Chea includes threats of abuse and dowry demands too."

-howdhury, Minister for Women

and Child Development

.

Chowdhury ry sai said around 70 percent pee pe i of women a en in India were victims of domestic violence in some forn ’ , 1. "The enactment of the law j J ¢

Premres “Went Ope step towards ending gender discrimination," she said Any y m man found guilty under the Domestic Violence Act 2005 w id ou

eee

PART II]

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257

be sent to jail and/or fined up to Rs. 20, 000. They can also be charged under other sections of the Indian Pena l Code (IPC), if applicable. But by simply passing an Act and jott ing it down on legal papers doesn’t ensure that its main purpose will be served. In order to tackle this problem, the Ministry of Women and Child Development has issued another notification laying down rules fram ed for accurate implementation ofthe Act which also includes appointment ofprotection officers, service providers and counsellors. Another very important feature of the new Act is women’s right to secure housing, the statement said adding it provides a right to reside in the matrimonial and shared household, whet her or not she has any legal title in the household. Women’s welfare associations from all around the country have accepted this decision with open arms however there are some who are worried about its il-effects and rightfully so—Pandurang i Reddy Bharati, who runs the Save Indian F amily Foundation, said, "It will lead to the economic blackmail of men." Mr. Bharati’s concerns canno t be taken lightly especially since over the years the numbers of false cases against husbands and In-laws have also been on a rise. Chowdhury did not deny that the Act could be misused but said there would be "protection officers" to ensure it did not happen. "We will sensitise the officers on all aspects of the law," she said. State Governments will have to appoint a woman protection officer in each police station to book and pursue cases. Victims can seek compensation under the law. the

The effectiveness of this revolutionary Act would only be judged once

intended

implementation

plans

are

put

into

action

without

any

lengthy delays, a positive level of transparency between the Ministry and State Governments

is achieved and most important of all, the ones who

are in-charge of enforcing this Act carry out their duty in the rightful manner. 7. Why this legislation was needed—lIts salient features.—Of all forms of criminal behaviour, the domestic violence is most prevalent and its effect not better known to many being least reported. Till passing of this legislation remedies available to a victim of domestic violence in civil

Courts and criminal Courts were not sufficient and lacking in many respects. There being no emergency relief available to the victim like in many other countries. All the remedies available prior to this legislation were linked with matrimonial proceedings and with protracted litigations the victims the women

were left at the mercy of the abuser. As a result majority of preferred to suffer in silence. It is expected that the new

legislation will address to such problem women, Section 2(a) of the Act will help any woman

the married women.

who is or has been in a

domestic relationship with the'respondent’ in the case. It empowers women to file a case against a person with whom she is

[PART il

FROM DOMESTIC VIOLENCE LAWS ON PROTECTION OF WOMEN

258

who has ‘shared household”, and a in ’ hip ons ati rel tic having a ‘domes | . ce” len vio tic mes ‘do to her subjected oon a act; they too can file a case Children are also covered the c

ting or torturing them, sa parent or parents who are tormen ofa can file a complaint on be

son mentally, or economically. Any per child. member who has been in a Section 2(q) says that any adult male son is the ‘respondent’. The domestic relationship with the aggrieved per d or male partner-thus, a respondent can also be a relative of the husban the husband and other father-in-law, mother-in-law, or even siblings of relatives can be proceeded against. who According to Section 2(g), any relationship between two persons live, or have at any point of time lived together in the shared household, is considered a ‘domestic relationship’. This includes relations of consanguinity, marriage, or through relationships in the nature of marriage, adoption, or joint family-thus, ‘domestic relationships’ are not restricted to the marital context alone. ‘Domestic relationships’ also cover sisters, widows, mothers, daughters, women in relationships of cohabitation, single women, etc. Any widow or unmarried sister or daughter who is harassed within the home can also resort to the new law. The law also protects women in fraudulent or bigamous marriages, or in marriages deemed invalid in law. Section 3 of the law says any act/omission/commission

or injures or has the potential

to harm

or injure

‘domestic violence’. Under this, the law considers physical,

psychological, and economic

4)

sexual,

wi

that harms

will be considered emotional,

abuse or threats of the same.

verbal

a rein act of commission or omission may constitute dom “See violence-in other words, women do not have to suffer a prol Sed period of abuse before taking recou rse to the law.

has

The |

, ls ae Sa any definition of domestic violence must detail the fact

firme of volenc as

violation. Further, the law details the different y women, and ensures th i i are not left s olely to the dincretiiin eh as tite at such interpretations Physical

nature A to ee

: aioe as any act or conduct which is of such a odily fog harm, or danger to life, limb, or health or

ealth or devel opment of the that includes assault, criminal intimidation and ertsthadtures

-

tO

:

intercourse with her husband against her will V —_

erbal and Emotiona l Abuse has been defined as an

y insult, ridicule,

PART Il]

THE PROTECTION OF WOMEN FROM DOMESTIC VIOLENCE ACT, 2005

humiliation, name-calling and such acts.

259

A woman who is insulted and

ridiculed for, say, not being able to conceive, or for not having produced a male child, can now take recourse to this law. Any repeated threats to cause physical pain to any person in whom the person aggrieved is interested-in other words, if say the abuser were to threaten the children, or relatives, of the aggrieved party-will also be covered under this head. Economic Abuse is a very forward-thinking, important part of this definition. The deprivation of economic or financial resources to which

the aggrieved woman

or child is entitled under law or custom,

or which

the person aggrieved requires out of necessity, can be claimed under the provisions of this law; withholding such resources now falls under the category of economic abuse. This provision comes into play in instances of marital disputes, where the husband tends to deprive the wife of necessary money as a weapon. The law also sees a husband who sells off his wife's jewellery and assets as being guilty of economic abuse. A husband, under this provision, cannot dispose of household effects, cannot alienate her from her assets or any other property in which the aggrieved person has an interest or entitlement by virtue of the domestic relationship. A husband may not sell or use Stridhan (dowry) and/or any other property jointly or separately held by the wife.

The important addition to the law ensures that an aggrieved wife, who takes recourse to the law, cannot be harassed for doing so. Thus, if a husband is accused of any of the above forms of violence, he cannot during the pending disposal of the case prohibit/restrict the wife’s continued access to resources/facilities to which she is entitled by virtue of the domestic relationship, including access to the shared household. In short, a husband cannot take away her jewellery or money, or throw her out of the house while they are having a dispute. The law recognises a woman's right to reside in the shared household with her husband or a partner even when a dispute is on-thus, it legislates against husbands who throw their wives out of the house when there is a dispute. Such an action by a husband will now be deemed illegal, not merely unethical.

Even if she is a victim of domestic violence, she retains right to live in ‘shared homes’ that is, a home or homes she shares with the abusive partner. Section 17 of the law, which gives all married women or female

partners in a domestic relationship the right to reside in a home that is

known

in legal terms

as the shared

household,

applies whether

or not

she has any right, title or beneficial interest in the same.

be The law provides that if an abused woman requires, she has to the situations, in such and accommodation alternate provided for by her husband accommodation and her maintenance has to be paid or partner.

abused woman for The law, significantly, recognises the need of the provided by the husband. A emergency relie i; which will have to be complaint/applic i ation alleging ing a women cannot be stopped from mak

260

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LAWS ON PROTECTION OF WOMEN FROM DOMESTIC VIOLENCE

domestic violence. She has the right to the services and assistance of the Protection officer and Service Providers, arranged under the provisions of the law. A woman who is the victim of domestic violence will have the right to the services of the police, shelter homes and medical establishments. She also has the right to simultaneously file her own complaint under Section 498A of the Indian Penal Code. Sections 18-23 provide a large number of avenues for an abused woman to get relief. She can get, through the Courts, protection orders, Residence Orders, Monetary Relief, Custody Order for her children, Compensation Order and Interim/Ex parte Orders. If a husband violates any of the above rights of the aggrieved woman, it will be deemed a punishable offence. Charges under Section 498A can be framed by the Magistrate, in addition to the charges under this Act. According to Section 2(s), a household where the aggrieved person lives/lived in a domestic relationship, either singly or along with the respondent, is a shared household. This applies whether the household is owned or tenanted, either jointly by the person aggrieved and the respondent, or by either of them, where either the person aggrieved or the respondent or both jointly or singly have any right, title, interest or equity.

Shared house hold also includes a household which 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.

However, the ownership pattern of the household cannot be affected by the Act-in other words, the fact that a woman lives in a home legally owned by her husband does not under the Act alter the legality of ownership; it does not for instance transfer that ownership in whole or part to the wife. Section 8 of the law provides for the setting up and Protection Officers.

function

of

These officers, to be appointed by state Governments, will be under the jurisdiction and control of the Court, and will be responsible to the Court for monitoring the cases of domestic abuse.

The PO will assist the Court in making a domestic incident report or an application for a protection order on behalf of the aggrieved woman and/or child. POs will ensure that aggrieved people are provided legal aid, medical services, safe shelter and other required assistance. POs will ensure that necessary information on service providers is provided to the aggrieved woman, and that orders for monetary relief are complied with.

Importantly,

the

PO

can

be

penalised

for

failing/refusing

to

PART Il]

THE PROTECTION OF WOMEN FROM DOMESTIC VIOLENCE ACT, 2005

discharge his duty, with Government is required.

the proviso

that prior sanction

261

of the state

Service Providers are a vital tool in the implementation of this act. Service Providers, as defined by the law, are private organisations recognised under the Companies Act/Societies Registration Act. They will have to register with the State Government as a service provider to record the domestic incident report and to get the aggrieved person medically examined.

The Service Providers will among other things ensure that the aggrieved person is provided accommodation in a shelter home, if she so requires. A Service Provider is protected for all actions done in good faith, in the exercise of the powers under this Act, towards the prevention of commission of domestic violence, they are, thus, protected by law and cannot be sued for the proper exercise of their functions. The new law, thus, recognises the role of voluntary organisations in addressing the issue of domestic violence. NGOs working for women’s rights can now register as Service Providers under the Act. 2.

Definitions.—In

this Act, unless

the context

otherwise

requires,-

(a)

“aggrieved person’ means any woman 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; (b) "child means any person below the age of eighteen years and includes any adopted, step or foster child;

(c) "compensation order’ terms of Section 22;

(d) (e)

means

an

order

granted

in

"custody order’ means an order granted in terms of Section 21; “domestic

incident report’ means

a report made

in

the prescribed form on receipt of a complaint of domestic violence from an aggrieved person; a_ relationship means relationship’ (f) “domestic between two persons 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; (g) "domestic violence’ has the assigned to it in Section 3;

same

meaning

as

[PAR T ill

FROM DOMESTIC VIOLENCE LAWS ON PROTECTION OF WOMEN

262

ingionas assigned "dowry" shall h ave the sawry meanibit me Proh Act, 1961 (h) to it in Section 2 of the Do (28 of 1961);

Magistrate of the (i) Magistrate’ means the Judicialbe, the Metropolitan

first class, or as the case may Code of Magistrate, exercising jurisdiction under the Criminal Procedure, 1973 (2 of 1974) in the area where the aggrieved person resides temporarily or otherwise or the respondent resides or the domestic violence is alleged to have taken place; (j) "medical facility’ means such facility as may be notified by the State Government to be a medical facility for the purposes of this Act; (I) "monetary relief' means the compensation which the Magistrate may order the respondent to pay to the aggrieved person, at any stage during the hearing of an application seeking any relief under

(0) (m)

this Act, to meet the expenses incurred and the losses suffered by the aggrieved person as a result of the domestic violence; ‘notification" means a notification published in the

Official Gazette and the expression "notified" shall be construed accordingly; ‘prescribed" means prescribed by rules made under

this Act; (n) ‘Protection Officer' means the aeStat s e

Government

an officer appointed

und er

sub--section i

(1)

by of

_prot (o) Sect ectio16: n order’ means an orde r mad | e in i terms of ion (p) “Tesidence order’ means an order of sub-section (1) of Section

19:

g

rant

po ap terms

(q) : Po tes S

oe means any adult male per son who is, been, in a domestic relations hip with the £srieved person and agains t whom the aggrieved person has sought any relief under this Act : Provided that _an an a aggrieved wife or female living ; relationship in the file a complaint a Piet tale pare

n

nature

i

of a marriage ay o s :

nst a relative of the husband or

“service pr | ovider’ means an entity r gistered under sub-section (1) of Se ction 10; mes shared household" means a household Where th

PARTIl]

THE PROTECTION OF WOMEN FROM DOMESTIC VIOLENCE ACT, 2005

263

person aggrieved lives or at any stage has lived in a domestic relationship either singly or alongwith the respondent and includes such a household whether owned or tenanted either jointly by the aggrieved person and the respondent, or owned or tenanted

by either of them in respect of which either the aggrieved person or the respondent or both jointly or singly have any right, title, interest or equity and includes such a household which may belong to the joint family of which the respondent is a member, irrespective of whether the respondent or the

aggrieved person has the shared household; (t) “shelter home" means notified by the State home for the purposes

any right, title or interest in

any shelter home as may be Government to be a shelter of this Act.

SYNOPSIS Eeeution Clautiaas os... .. See. ee. .. a 264 NS Section 2(b): Personal Laws In Other Religions Than Hindus memtiing Adopemmer...... Jews les. & ARR ©. . cede 276 Section 2(b):

meeston meron section Section Section CN $0.80 1G ce Sn. a Section 10. Section II, Section 12. Section 13. 14. 15. 16. is

"Step Child"—Meaning of. ............

a

-. ae

277

2(b): Step @arent Adoption. .-.. ... «a. .. OS 2(b): Wemeeead. ... oa S.,. .: eee os 2(c): "Commensation Order... . . ..... . Gee 2(d)— Comey Order’. woe eng s 2 ss.) ee 2(d): Lage tsoverning Custodyicn:). .aeeneeee «os. soe 2(e)—"“Domestic Incident Report’. . . . .. etjsws'. ss uu

277 278 279 281 282 284

2(f)—"Consanguinity" Definition and Meaning. ........... 2(f): Problems with Consanguineous Marriages. .......... 2(f): Expression Domestic Relationship. ............... .......... Section 2(f): Wife ceasing to be in domestic relationship. Section 2(f) : Expressions "At any point of time. ............... ee Section 2(/) : “Livetm relationship’ ©. « s). - «+ - 4p Bis 2 ess +

286 287 288 290 290 291

Section 2(f): Relationship in the nature of marriage.

............ 294

Section 2(f) : Both living together—Consensual sex but no promise to

bah

ree 296 marry—Whether domestic relationship. .. . . - he mn 18. Expression "Relationship in the nature of marriage"—Expression somkamnnel 5.) : rte NS. ..... -See "Domestic relationship". Poe to 19. Section 2(f) : Those in Love in Relation Whether Entitled toh ....++++>:> ee Maintenance. oe os -. - 6. 6 20. Section 2(f) : Man and Woman Living Together... a ) ee 304 +s +++: Sui. +--+ 21. Section 2(f) : Presumptio| n of Marriage. ..tos eek. Smee 22. Section 2(g) : Domestic Vidlence’. Be vie aa + ds 23. Section 2(h) : Dowry Under Ancient i, under Ancient Law. ....... 24. Section 2(h) : Stridhana—Whether Dowry

264

[PART I

LAWS ON PROTECTION OF WOMEN FROM DOMESTIC VIOLENCE

25. 26.

SI ..---- : , . 31 4013 Section 2(h) : Dowry Prohibition Act-Relevant Provisions. a Section 2(h) : Dowry Prohibition (Maintenance of Lists of Presents ‘eh tree ee +++ e+e .....--to Bride and Bridegroom) Rules 1985.

27.

Section 2(h) : Extracts From Indian Penal Code as Relevant. .......- -

.. . .320 28. Section 2(h) : Relevant Extracts From Code of Criminal Procedure. 29. Section 2(h) : Relevant Extracts From Indian Evidence Act. ........ 322 SOs Section 2(h) "Hepnmion of Dowry st. ee + ae 323 31. Section 2(h) : Meaning of Dowry as per Judicial Pronouncements. ... . .325

32. Section 2(h) 33. Section 2(h) Harassment 34. Section 2(h) 35. Section 2(h)

: "Property agreed to be given"—Meaning. ........... 328 : Dowry—Bride Killing—Dowry Death—Cruelty and on-account of Dowry. nr. 5... . ee ss wp ee 329 : What is Dowry Death and Bride Burning. .......... 331 : Big Fat Indian Weddings—Lavish Spending in

Marviages sie. Se. GB Bae. Tee. 332 36. Section 2(h) : Dowry Death—Offences under Section 304-B IPC. . .-P8ab 37. Section 2(f) : Dowry is a Social Problem—Mere Legislation not BROULh. «ie ess. ee. .. ae ee 346 38. Section 2(i) : Meaning of the Expression "Magistrate”) La e. « eae 347 a9. Section 26) :tiMedigal Mavilityln erates ’. Gil .. Ol. all 355 40. Section 2(k) : "Monetary Relief. eee... eae 359 eseSection 21); "Notfesion. °! ,okt aee 359 . oE SeBection 2(m).: Piiseribed". = ede Saleta n ae 359 43. Section 2(n) : "Protection Officer ka.. .. oe a Oe 359 San nO 2 OER TiOn Order, |e . ea a 359 45. Section 2(p) :"Residence Order". ne. aeey: OE 359

46.

Section 2(q) : "Respondent"—Meaning.

47.

Legislative Back Ground of the Act and the Expression Respondent.

Ma question tha t arises i : n and Woman Liv ing Together.—Thus, the long time, even without ; valid

|

Marriage entitling such

PART II]

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299

On the question of presumption of marriage, one may usefully refer to a decision of the House of Lords rendered in the case of Lousia Adelaide Piers & Florence A.M. De Kerriguen v. Sir Henr y Samuel Piers, (1849) Il HLC 331, in which their Lordships observed that the question of validity of a marriage cannot be tried like any other issue of fact independent of presumption. The Court held that law will presume in favour of marriage and such presumption could only be rebutted by Strong and satisfactory evidence. In Lieutenant C.W. Campbell v. John A.G. Campbell, (1867) Law Rep. 2 HL 269, also know n as the Breadalbane case, the House of Lords held that cohabitati on, with the required repute, as husband and wife, was proof that the parti es between themselves had mutually contracted the matrimonial relation. A relationship which may be adulterous at the beginning may beco me matrimonial by consent. This may be evidenced by habit and reput e. In the instant case both the appellant and the first respondent were related and lived in the same house and by a social custom were treated as husband and wife. Their marriage was solemnized with Katha and Sindur. Therefor, following the ratio of the decisions of the House of Lords, this Court thinks there is a very strong presumption in favour of marriage. The House of Lords again observed in Captain De Thoren v. The Attorney-General, (1876) I AC 686, that the presumption of marriage is much 6 stronger than a presumption in regard to other facts. Again in Sastry Velaider Aronegary & his wife v. Viagalie & Ors, (1881) 6 AC 364, it was held that where woman are proved to have lived together as man and wife, presume, unless the contrary is clearly proved, that they

together in consequence

of a valid marriage,

and

Sembecutty a man and the law will were living

not in a state of

concubinage. In India, the same

Dinohamy

v.

W.L.

principles have been followed in the case of A.

Balahamy,

AIR

1927

PC

185,

in which

the Privy

Counbcil laid down the general proposition that where a man and woman are proved to have lived together as man and wife, the law will presume, unless, the contrary is clearly proved, that they were living together in

consequence of a valid marriage, and not in a State of concubinage. In Mohabbat Ali Khan v. Muhammad Ibrahim Khan and Ors., AIR 1929 PC 135, the Privy Council has laid down that the law presumes in favour of marriage and against concubinage when a man and woman _ have

cohabited continuously for number of years. In the case of Gokal Chand v. Parvin Kumari, AIR 1952 SC 231, this Court held that continuous cohabitation of man and woman as husband and

wife may

raise the presumption

of marriage,

but the presumption

which may be drawn from long cohabitation is rebuttable and if there are circumstances which weaken and destroy that presumption, the Court cannot ignore them.

&

Further, in the case of Badri Prasad v. Dy. Director of Consolidation (1978) 3 SCC 527, the Syorene Court held that a strong Ors

[PART Il

M DOMESTIC VIOLENCE LAWS ON PROTECTION OF WOMEN FRO

300

k where the partners end motor presumption arises in favour of wedloc ae . Although the Sead together for a long spell as husband and wife depriv who seeks to is rebuttable, a heavy burden lies on him | relationship of legal origin. 2008(4) SCC 520, this Again, in Tulsa and Ors. v. Durghatiya & Ors.,

a long spell as Court held that where the partners lived together for a valid husband and wife, a presumption would arise in favour of wedlock.

Sir James Fitz Stephen, who piloted the Criminal Procedure Code of 1872, a legal member of Viceroy’s Council, described the object of Section 125 of the Code (it was Section 536 in 1872 Code) as a mode of preventing vagrancy or at least preventing its consequences.

Then came the 1898 Code in which the same provision was in Chapter XXXVI Section 488 of the Code. The exact provision of Section 488(I) of the 1898 Code runs as follows:

"488.

(I) If any person having sufficient means neglects or refuses to maintain his wife or his legitimate or illegitimate child unable to maintain itself, the District Magistrate, a Presidency Magistrate, a Sub-divisional Magistrate or a Magistrate of the first class may, upon proof of such neglect or refusal, order such person to make a monthly allowance for the maintenance of his wife or such child, at such monthly allowance for the maintenance of this wife or such child, at such monthly rate, not exceeding five hundred rupees in the whole as such Magistrate thinks fit, and to pay the same to such person as the Magistrate from time to time directs."

pe

In Jagir Kaur & Anr. v. Jaswant Sing h, AIR 1963 SC 1521 Court observed with respect to Cha pter XXXVI of cotta that provisions for maintenance of wives and children intend to

In Nanak Chand v. C 802, the S

Kaushal

Article

39.

v. Veena

Kaushal

and

Ors..,

) the Category of person s entitled to maintena nce. It b ysl of social justice specially €ct Of women, children, old Speatin constitut tujtional Sweep of Art ' icle 15(3) re- ence filtited.-tn

PART Il]

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301

that—"We have no doubt that Section of statutes calling for construction by Courts are not petrified print but vibrant words with social functions to fulfill. The brooding presence of the constitutional empathy for the weaker sections like women and children must inform interpretation if it is to have social relevance. So viewed, it is possible to be selective in picking out that interpretation out of two alternatives which advance the cause—the cause of the derelicts." Again in Vimala (K) v. Veeraswamy (K), (1991) 2 SCC 375, a three-Judge Bench of this Court held that Section 125 of the Code of 1973 is meant to achieve a social purpose and the object is to prevent vagrancy and destitution. Explaining the meaning of the word ‘wife’ the Court held:"... The object is to prevent vagrancy and destitution. It provides a speedy remedy for the supply of food, clothing and shelter to the deserted wife. When an attempt is made by the husband to negative the claim of the neglected wife depicting he as a kept-mistress on the specious plea that he was already married, the Court would insist on strict proof of the earlier marriage. The term ‘wife’ in Section 125 of the Code of Criminal Procedure, includes a woman who has been divorced by a husband or who has obtained a divorce from her husband and has not remarried. The woman not having the legal status of a wife is thus brought within the inclusive definition of the term ‘consistent with the objective..." Thus, in those cases where a man, who lived with a woman for a long time and even though they may not have undergone legal necessities of a valid marriage, should be made liable to pay the woman maintenance if he deserts her. The man should not be allowed to benefit from the legal loopholes by enjoying the advantages of a de facto marriage without undertaking the duties and obligations. Any other interpretation would lead the woman to vagrancy and destitution, which the provision of maintenance in Section 125 is meant to prevent. The Committee on Reforms of Criminal Justice System, headed by Dr. Justice V.S. Malimath, in its report of 2003 opened that evidence regarding a man and woman living together for a reasonably long period

should be sufficient to draw the presumption that the marriage was performed according to the customary rites of the parties. Thus, it

recommended that the word ‘wife’ in Section 125 Cr.P.C. should be amended to include a woman who was living with the man like his wife

for a reasonably long period.

The Constitution Bench of this Court in Mohammad Ahmed Khan v.

considering the Shah Bano Begum & Ors, repcrted in (1985) 2 SCC 556, the said provemnoss provision of Section 125 oi the 1973 Code, opined that

personal law of the is truly secular in character and is different from the

are essentially of ; parties. The Court further held that such provisions religion. i ise ; prophylactic character and cut across the barriers of

further held that the liability imposed by Section

125 to maintain c a

the individual's obligation relatives. who are indigent, is founded upon itution. the society to prevent vagrancy and dest

to

LAWS ON PROTECTION OF WOMEN FROM DOMESTIC VIOLENCE

302

[PART Il

v. Bidyut In a subsequent decision, in Dwarika Prasad Satpathy Prava Dixit & Anr., (1999) 7 SCC 675, the Apex Court Court held that the standard of proof of marriage in a Section 125 proceeding is not as strict as is required in a trial for an offence under Section 494 of IPC: The learned Judges explained the reason for the aforesaid finding by holding that an order passed in an application under Section 125 does not really determine the rights and obligations of parties as the section is enacted with a view to provide a summary remedy to neglected wives to obtain maintenance. The learned Judges held that maintenance cannot be denied where there was some evidence on which conclusions of living together could be reached.

However, striking a different note, in Yamunabai Anantrao Adhav v. Anantrao Shivram Adhav and another, reported in AIR 1988 SC 644, a two-Judge Bench of this Court held that an attempt to exclude altogether personal law of the parties in proceedings under Section 125 is improper. The learned Judges also held that the expression ‘wife’ in Section 125 of the Code should be interpreted to mean only a legally wedded wife.

two cases.

However,

law in Ameri

i rica has proceeded on a Slig htly different basis. another Soah wieOuttthe a in relationsh the formalities of Seale a Marriage, came ipup with con sidn. (1i976)i Magi for 5os American Courts in the leading case of ‘panty’ tus Sire Marvin 3d 660. In that context, a by 4 farce a. coi ne w ex pr es sion ned, whic

The social ob!

h is a combination of ‘pal’ and ‘alimony’ ce lawyer in the Said case, Mr. Marvin Mi tchelson. In the Marvin Cc that she and Lee yy

that while "the parti

PART II]

companion,

THE PROTECTION OF WOMEN FROM DOMESTIC VIOLENCE ACT, 2005

homemaker,

housekeeper

and

cook."

Michelle

303

soug

ht a judicial declaration of her contract and property rights, and sought to impose

a constructive trust upon one half of the property acquired during the course of the relationship. The Supreme Court of California held as follows: (1) The provisions of the Family Law Act do not govern the distribution of property acquired during a non-marital relationship; such a relationship remains subject solely to judicial decision. (2) The Courts Should enforce express contracts between non-marital part ners except to the extent that the contract is explicitly founded on the cons ideration of meretricious sexual services. (3) In the absence of an expr ess contract, the Court should inquire into the conduct of the parties to determine whether that conduct demonstrates an implied contract, agre ement of partnership or joint venture, or some other tacit understandin g between the parties. The Courts may also employ the doctrine of quantum merit, or equitable remedies such as constructive or resulting trusts, when warranted by the facts of the case.

Though in our country, law has not developed on the lines of the Marvin case (supra), but our social context also is fast changing, of which has a pronounced social content like Section 125 of the Code of 1973. The provisions of the Protection of Women from Domestic Violence Act, 2005 assigns a very broad and expansive definition to the term ‘domestic abuse’ to include within its purview even economic abuse. ‘Economic abuse’ has been defined very broadly in sub- explanation (iv) to Explanation 1 of Section 3 of the said Act to include deprivation of financial and economic resources.

Further, Section 20 of the Act allows the Magistrate to direct the respondent to pay monetary relief to the aggrieved person, who is the harassed woman, for expenses incurred and losses suffered by her, which may include, but is not limited to, maintenance under Section 125 Cr.P.C. [Section 20(1)(d)]. Section 22 of the Act confers upon the Magistrate, the power to award compensation to the aggrieved person, in addition to other reliefs granted under the Act. In terms of Section 26 of the Act, these reliefs mentioned above can be sought in any legal

proceeding,

before

a civil Court,

family Court

or a criminal

Court,

affecting the aggrieved person and the respondent. Most significantly, the’ Act gives a very wide interpretation to the term ‘domestic relationship’ as to take it outside the confines of a marital relationship, and even includes

live-in relationships in the nature of marriage within the definition of ‘domestic relationship’ under Section 2(f) of the Act. Therefore, women in live-in relationships are also entitled to all the reliefs given in the said

Act. If the abovementioned monetary relief and compensation can be awarded in cases of live-in relationships under the Act of 2005, they of Cr.P.C. ‘ should also be allowed in a proceedings under Section 125

seems to us that the same view is confirmed by Section 26 of the said Act of 2005. In the light of the constant change in social attitudes ae values, which have been incorporated into the forward-looking Je >

2005.

the same

needs to be considered

with respect to Section

1295 0

ee

[PART Il

M DOMESTIC VIOLENCE LAWS ON PROTECTION OF WOMEN FRO

304

tation of the same Cr.P.C. and accordingly, a broad interpre

should be

taken.

The question therefore arose—

n as 1. Whether the living together of a man and woma d husband and wife for a considerable period of time woul raise the presumption of a valid marriage between them and whether such a presumption would entitle the woman to maintenance under Section 125 Cr.P.C?

2. Whether strict proof of marriage is essential for a claim of -maintenance under Section 125 Cr.P.C. having regard to the provisions of Domestic Violence Act, 2005?

3. Whether a marriage performed according to customary rights and ceremonies, without strictly fulfilling the requisites of Section 7(I) of the Hindu Marriage Act, 1955, or any other personal law would entitle the woman to maintenance under Section 125 Cr.P.C.?

21. Section 2(f) : Presumption of Marriage.—If a man and a woman are residing together for a long time and have been accepted by the society as husband and wife, a presumption could be drawn that their marriage is valid. A long cohabitation and acceptance of society ofa man and woman as husband and wife goes a long way in establishing a valid marriage. When disputes of valid maiTiages come into quest ion, Courts can rely not only on the various material placed befor e it, but also draw a presumption on the basis of the conduct. between the two parties. The ene are not only entitled to analyze the evidences brought on record by the parties so as to come to a conclusi on as to whether all the es of a valid marriage as contained in Section 5 of the Hindu mer ge ct, 1955 stand established or not. A presumption of a valid Triage having regard to

the fact that they had been resodo mg together ; ;

for a long time and h could also be drawn. aie

What happens when to conclude

the idem

tn society as husband

and wife.

indivi ceh

fortune by the hu sband

family of the boy an d The family in the .

aepepted

call teaeeee

the lawful procedures

and she i

> Side of

man allee gatia agains onsa may e up with ce . the said wife and at thecom end the man Pin.teesha anotne man. The woman wh O Started the life with eae Op th

€ said man

PART Il]

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305

may end up taking care of illegitimate children without any help from any boy. Many of such women are even forced to prostitution. Section 50 read with Section 114 of the Indian Evidence Act, 1872, makes it clear that the Act of Marriage can be presumed from the common course of natural events and the conduct of parties as they are borne out by the facts of particular case. Where the partners lived together for long spell as husband and wife there would be presumptio n in favour of wedlock. The presumption is rebuttable, but a heavy burden lies on the person who seeks top deprive the relationship of legal origin to prove that no marriage took place. Where there has been prolonged and continual cohabitation between a man and woman, particularly in those cases in which the alleged marriage took place a long time ago, and about which it may be well nigh impossible to obtain trustworthy testimony, they arises a presumption that a valid marriage subsists between the two. But if the conduct of the parties is incompatible with marital relationship, then no such presumption arises. The continual and prolonged cohabitation, which gives rise to the presumption of a valid marriage, should be of such a nature, and under such circumstances that a reasonable inference is naturally drawn, that the cohabitation was aS man and wife without obstacle or impediment to a valid marriage between the two. In Muslim Law presumption of marriage arises in the following three cases— () When prolonged continual cohabitation is established between the parties as husband and wife, who have no legal impediment against their marriage. (i) When the man acknowledges the woman to be his wife. (ii) When a man acknowledges a child as his legitimate off spring, then a presumption of valid marriage between man and the mother of the child arises.

the

A presumption is an acceptance of a fact as true or existent based upon its strong probability evident form the circumstances. For example,

if a man has not been heard from for 7 years by his closest relatives, the Court may believe in that the man is dead. This is a presumption. Thus. when the Court presumes the existence of a fact because of its strong

probability but without a direct or conclusive proof, it is called as presumption. When a Court presumes a fact, the party in whose favor the fact is, is relieved of the initial burden of proof. According

to English

Law,

a presumption

can

be of two

kinds-

Presumption of fact and presumption of law.

Presumption of fact are those presumption about things or events that happen in day to day life, which we accept as true due wtinia

hy a drawn logically and naturally by our mind. Such as, presumption man

the mur¢ oe with blood stained clothes and a knife in his hands is

ion 0 Such presumptions are rebuttable from further evidence. Presumpt

[PART |I

DOMESTIC VIOLENCE LAWS ON PROTECTION OF WOMEN FROM

306

exed by law to particular law are arbitrary consequences that ar e ann e as the inferences that facts. They are legal fiction. They may not t beb¥ sam such inference may we may ordinarily draw but the law prescribe s that be drawn. above Provisions of Section 4 in a general sense, correspond to the as me" classification. The first part of this section defines "May Presu follows— "May presume"—Whenever it is provided by this Act that the Court may presume a fact. It may either regard such fact as proved, unless and until it is disproved, or may call for proof of it. It gives the Court a discretionary power to presume the existence of a fact. Which means that the Court may regard the fact as proved unless and until it is disproved. All the presumptions given in Section 114 are of this kind. Which says that the Court may presume the existence of any fact which it thinks likely to have happened regard being had to the common course of natural events, human conduct, and public and private business, in their relation to the facts of the particular case. For example, the Court may presume that a man who is in possession of stolen goods soon after theft, is either the thief of has received the goods knowing them to be

stolen, unless he can account for his possession. The second part of the section for defines follows—

"Shall

Presume"

as

“Shall presume"—Whenever it is directed by this Act that the Court shall presume a fact, it shall regard such fact as proved, unless and until it is disproved. It basically forces the Court to presume a fact that is specified by the law unless and until it is disproved. The Court cannot ask for any evidence to prove the exist ence of that fact but it may allow evidence to disprove it. For example Presumption about abetment of suicide of a married

death of a woman

woman

(Section

(s. ; 113A) and P resumption 113-B) aie of this kind.

about

WTy

es

Third part of the section def ines "Conclusive Proof" as follows—

Conclusive proof'—When one fact is decl ared by this Act to be conclusive proof of ano regard the other as =ethera th e€ Court shall, on proof of the on fact, purpose of disproving it. Fo is a conclusive proof of legi

is over. Section

as presumed 113A—w

“i th

the purpose of presumption

e question is wh Suicide by a wo ether the commis , man h as been sion of abetted b he her husband and it r h us ba nd or is shown that any relative of she i. co mm itted suicide wi thin a

PART Il]

THE PROTECTION OF WOMEN FROM DOME STIC VIOLENCE ACT, 2005

307

period of seven years from the date of her marriage and that her husband or such relative of their husband had subj ected her to cruelty, the Court may presume, having regard to all the other circumstances of the case, that such suicide had been abetted by her husband or by such relative of her husband. _ Explanation—For the purposes of this secti on, "cruelty" shall have the same meaning as in Section 498A of the Indian Penal Code (45 of 1860). Section 113B—Presumption as to dowry deat h—Presumption as to dowry death.—When the question is whether a person has committed the dowry death of a woman and it is shown that soon before her death such woman had been subjected by such person to cruel ty or harassment for ’ or in connection with any demand for dowry, the Court shall presume that such person had caused the dowry death Explanation, For the purposes of this section "dowry death" shall have the same meaning as in Section 304B of the Indian Penal Code.

22. Section 2(g) : Domestic Violence".—The expression "Dome stic Violence" is defined as the meaning assigned to it under Sectio n3, which is exhaustive. [See also the commentary there under]. 23. Section 2(h) : Dowry Under Ancient Law.—There is no general agreement or certainty about the definition or origin of ‘dowry’. In Strict terms, ‘dowry’ is what a bride's parents give to the groom or to his family on demand either in cash or in kind. It can be looked as a settlement that is normally constituted of : (1) What is given to the bride, and often settled beforehand and announced openly or discreetly; (2)

what is given to the bridegroom before and at marriage; and (3) what is presented to the in-laws of the girl. The settlement often includes the enormous expenditure incurred on travel and entertainment of the bridegroom's

party

(Government

of India 1974). This definition can be extended to include also the giving of gifts of cash from the bride’s parents to her husband, his family or to herself after marriage, either towards fulfilment of the pre-nuptial settlement or on the basis of further expectations of the groom and his family. There is a common belief that

dowry is an ancient Hindu practice, but there is no authoritative opinion available that tell us that ‘dowry’, as defined above can be traced to the ancient Hindus.

According to Altekar the dowry system was generally unknown in early societies and also with ancient Hindus. He specifically mentions that: "there are no references either in Smritis or in dramas to the dowry,

i.e. to the pre-nuptial contract of payment made by bride's father with the bridegroom

or his guardian." However,

there is general pereomens aa

while the Hindu belief system and practices cannot be held dipteps es ‘ for the

custom

of ‘dowry’

as

such,

there

are

some

elements

of an

tradition that feed the roots of the dowry problem ieera apiptymipio

Indeed a tradition of giving gifts to a son-in-law ate i won be Byes = the: but this was restricted to rich and royal families. He asserts that

FROM DOMESTIC VIOLENCE LAWS ON PROTECTION OF WOMEN

308

[PAR T Il

made ou t of ol they were voluntarily ifts can hardly be called dowry for emtgh system of its elements he further clarifies. The Senca In A marriage as a dana or gilt. is connected with the conception of gives no clear indication A religious gift in kind is usuall y (Altekar but it can be assumed a about what he means by ‘dowry system’ here erty in any form herd : he implies it to mean voluntary transfer of prop e4 ly at the bride, groom and groom's family from the bride’s fami gift of the bride marriage) accompanied by a gift in cash or gold. So the ments. was also accompanied by a formal and small gift in cash or orna He traces initiation of this custom to medieval times and to Rajputana but always wrapped in love and affection, with no element of coercion. Another commonly accepted explanation, which traces elements of dowry to the ancient Hindu belief structure, views it as a kind of pre-mortem inheritance of the daughter, who has to leave her natal family to join another. Many authors have put forward the claim that giving of cash or gifts, mainly moveable property, to the daughter at the time of marriage was a kind of compensation for the absence of inheritance rights in their father’s property for daughters. Dowry, thus, stresses the notion of female property and a female right to property, it being viewed as an important ingredient of stridhan. It has been claimed that the custom had its origin in agricultural societies where the family's survival was dependent on its holding land. Since women Joined the husband's family after marriage, they were not given a formal share in the land, mainly to avoid the fragmentation of land. Given the nature of the evidence that is available for knowi ng and understanding ancient Hindu practices, it is true that there is no certainty whether dowry can really be connected to streedhan or not. There are conflicting views about this, and some authors have argued that women were

etween b

ride and groom's family; transfer of pioperty as a conside ration

Hindu belief syste strongly conde; mned; toda

Consequently

both

t further fr

«1S

the aaD Dhar chee 1g

'

om them has nothing ‘

puenomencn

squarely on the tradition Pproaches, that is, for perpetuating oppr one that puts the blame ession of Wome i

PART II]

THE PROTECTION OF WOMEN FROM DOMESTIC VIOLENCE ACT, 2005

of customary practices, and another that defends basis of ancient traditional origin, are misplaced.

309

the practice on the

In spite of great variations in the understanding of dowry, one can Say that the predominant understandings especially the one that is sensitive towards cultural diversity, suggest that only ‘dowry’, that is, those financial and material transactions around marriage that have elements of demand in them, should be considered problematic. There is no clarity about how to view other kinds of financial and material transactions associated with marriage in India, which cannot be considered per se objectionable but which are directly and indirectly responsible for ‘dowry’ and the dowry problem. We only hear about Swayamvar in the ancient Hindu marriage traditions where it was the bride who decided whom to marry. There was no Swayamvadhu, the groom could not hold beauty contests to decide which bride to marry. Instead it was the girl who in a Swayamvar, would put all the competing potential bridegrooms to different contests and

then select the bridegroom whom she liked. In the Swayamvar of Sita in Ramayai*a, Rama had to lift the Shiva’s bow to prove that he was eligible to marry Sita. In the Swayamvar in Mahabharatha, Arjuna had to hit the eye of the fish rotating above by only looking at the fish’s reflection in a pool of oil below. So if this was the importance given to women in our tradition, then when and where did this contradiction of the menace of dowry enter our society? We don’t find any instances of dowry related violence in the literature of ancient times. Not even in the literature belonging to the pre-colonial era of India. So when did the Indian society adopt the evil version of dowry which has created numerous social problems in the Indian society ranging from female foeticide, violence on married women, financial stress on parents of girl child, imbalance in male-female ratio, broken marriages, mistrust between families, etc.

British Yes, the system of Dowry existed in India even before the

the society today. In the Rule, but not in the format thatis prevalent in

managed by women, for pre-colonial period, dowry was-an institution se in an women, to enable them to establish their status and haveof recour even bride the ts dowry, the paren emergency. In this ancient system of form of valuable gifts etc. her kith and kin, all gave wealth to her in the

wealth to their sons, SO It was just like not parents used to give a part of the daughter's marriage. did they give it to their daughters too during that the valuables or the What is very important to be noted here is . In

to the groom or his family wealth was given to the bride, and NOT continued to be owned by the wife and ih other words, the dowry wealth or his family. by the husband independence

to women

agricultural land, etc.

This gave the required financia from their who would even manage the income

LAWS ON PROTECTION OF WOMEN FROM DOMESTIC VIOLENCE

310

[PART Il

eae So in the original system of dowry prevalent in India, women gifted wealth from their parents during marriage and this served as a too of financial independence for the bride even after marriage. Even during the initial days of the British Tule, contemporary European writers Orme, the French Catholic missionary Jean-Antoine Doubois who came to India in 1792, Malcom etc. have praised the status of Hindu women in India. Malcom says that the Hindu women "have a say in the affairs of the State, have a distinct provision and estate of their own, enjoy as much as liberty they desire’. Malcom also praises women rulers like Ahalya Bai of being great administrators.

It all started with the Permanent Settlement of Bengal in 1793 by the British Under Lord Cornwallis. This enabled private ownership of land which was unknown in India till then. Private ownership of land was never practiced in India in the past. The land always belonged to the Government and people only settled in the Government's land. If there was a flood in one place, people used to move on to another place in the kingdom. By introducing the permanent settlement. the British enabled

the private ownership of land in India. All modern day real estate related violence in the country could hence be traced back to this act by the British. People there after started fighting over land.

But the move which affected the status of the women in the Indian society was the rule imposed by the Brit ish which prohibited the women from owning any Property at all! And this was what created the menace of dowry system in India.

In| the existing sys‘tem tem, parents used to give wealth and valuable gifts daughters during marriage. And the bride continued to own thi s even after her Marriage and it provided the wife financ ial

to a wea

f

lale foeticj ration in the society, which further €r

led

to

;

an imbalance in male-female more crir nes On women.

PART Il]

THE PROTECTION OF WOMEN FROM DOMESTIC VIOLENCE ACT, 2005

311

property, until 1956 the women in India did not have the right to inherit property from their parents. It was only in 1956 that the Hindu Personal laws were amended giving the right to women to inherit ancestral property.

But again those right’s were not equal to those of men. Sons had an independent share in the ancestral property, while the daughters’ shares were based on the share received by their father. Hence, a father could effectively disinherit a daughter by renouncing his share of the ancestral property, but the son will continue to have a share in his own right. Additionally, married daughters, even those facing marital harassment, had no residential right in the ancestral home. It was only as recently as in 2005, when the Hindu laws were amended again, now Successive Governments in independent India have retained most of the laws we inherited from the British without much amendments. Hence today unfortunately, personal laws are different in India depending on which religion the person belongs to. For Muslim women and Christian women, the rights are even less. In 1986 came the Muslim Women (Protection of Rights on Divorce) Act just to nullify the Supreme Court's judgment in the Shah Bano case which had ordered the husband to provide maintenance money to his divorced wife, Shah Bano. The marriage of Christians in India is still regulated by the Indian Christian Marriage Act of 1872 and the Indian Divorce Act, 1869. These Acts were considered unfair to women, and the Christian Marriage and Matrimonial Causes Bill 1990 was proposed as a replacement, but no progress has been achieved into converting this bill into a law. Unfortunately, we are fine with the personal laws being different fer men and women depending on which religion one belong to. And even strange is the fact that the calls for a Uniform Civil Code in the country which seeks uniform laws to all citizens irrespective of their religion is being frowned upon as being communal! Yes, there is a law in India which makes taking dowry illegal and a criminal offence. And yet we keep coming across so many dowry harassment cases in the country on a daily basis. When married daughters leave their parental home and their married brothers do not, altruistic parents provide dowries for daughters and bequests for sons in order to mitigate a free digging problem between

their married sons and daughters. The theory has predictions on the form of the dowry contract, the exclusion of daughters from bequests. These and the decline of dowries in previously dowry giving societies. ancient Near predictions are consistent with historical evidence from Byzantine empires, Eastern civilizations, ancient Greece, Roman and

antiquity x the western Europe from 500 to 1500 AD, the Jews from , abe Middle Ages, Arab Islam from 650 AD to modern times, China early-modern medieval and Renaissance Tuscany, Brazil, North America, and contemporary India.

Keywords:

dowries,

bequests,

bride

prices,

England,

marriage

modern

markets,

[PART II

LAWS ON PROTECTION OF WOMEN FROM DOMESTIC VIOLENCE

312

ited intergenerational transfers, free-riding. virilocal, seaman’ “i Dowry is the property which a girl brings to her husband Ss ples time of marriage. It is the payment made in cash or kind by t : a og family to the bridegroom's family along with the giving away of the bride. ‘Dowry death’ means the death of a married woman caused due to cruelty or harassment by her husband or his relatives in connection with demand for dowry. It is defined under Section 2 of the Dowry Prohibition Act 1961. Section 304-B of the Indian Penal code deals with dowry death.

The object of this Act was to prohibit the evil practice of giving and taking of dowry. The act makes the practice of giving and taking of dowry punishable thus and endeavoring to eradicate this evil. The Act was however amended twice-first in 1984 by Act 63 of 1984 and then in 1986 by Act 43 of 1986 to make the provisions more stringent and effective. The Act in its entirety is an extremely short one, consisting of only 10 sections. Section 2 of the Act defines ‘dowry’ which has been detailed before. The Act came into force on 1.7.1961 but cannot be considered to epitomize success as dowry system thrives in our society four and a half decades thenceforth. 24.

Section

2(h)

: Stridhana—Whether

Dowry

under

Ancient

Law.—Stridhana according to the smritis, that is, the sacred writing of Rishis or Sages of antiquity, as per Manu are of six kinds: (1) Gifts, made before the nupital fire, explaine d by Katyayana to mean gifts made at the time of marriage before the fire which is the witness of the nupital (adhyagnd. (2) Gifts, made at the bridal procession, that is, says Katyayana, while the bride is being led from the residence of her parents to that of her hus band (padavandanika), (3) Gifts made in to ken of love , that is Says Katyayana, tho se made through affection by her fat her -in -la w and mother-in-law (pritidatta) and those made at the tim e of her making obeisance at the feet of elders, (padavandanika): (4) Gifts made by the father: (5) Gifts made by th e mother:

re

(6) Gifts made by the brothe r.

is, -@Bcithe ideal (adhipediantien sion

of

his

n supersession, that taking another wife,

(2) Gifts, Subsequent, that is. Says Katyayana, those made after marriage by her husband’ relations Wirwadhayaiiee. relations or her parent's 2

(3) (4)

Vishnu a

:

Sulka or ma rri age-fee, a term senses in diff erent schools: Gifts from so ns and relati ons. does not ma ke

as

any specifi” ment ion

ile

ae

of gifts made

at t

PART Il]

THE PROTECTION OF WOMEN FROM DOMESTIC VIOLENCE ACT, 2005

313

bridal procession. It would be manifested from the above that since times immemorial Hindu law had recognized the individual ownership of the wife with regard to the aforementioned articles of dowry and traditional presents given at the time of wedding. Continued recognition of this fact and the individual ownership of the Hindu wife with regard there to is manifested from the well settle rule that stridhana cannot be attached for the debts of her husband. Equally well acknowledged is that the husband has no right of alienation to the stridhana of his wife. Hence it can not be contended that the articles of dowry and traditional presents given at the time of the wedding could not be the individual property of a Hindu wife. 25. Section 2(h) : Dowry’ Prohibition Act—Relevant Provisions.—The Dowry Prohibition Act, 1961 is an Act to prohibit the giving or taking of dowry enacted by Parliament in the Twelfth Year of the

Republic of India. Definition of "dowry" is given under Section 2 of this Act as : “Dowry" means any property or valuable security given or agreed to be given either directly or indirectly— (a) by one party to a marriage to the other party to the marriage; or (b) by the persons of either party to a marriage or by any other person, to either party to the marriage or to any other person; at or before or any time after the marriages in connection with the marriage of said parties but does not include dower or mehr in the case of persons to whom the Muslim Personal Law (Shariat) applies.

Explanation I (omitted)

Explanation II.—The expression "valuable security"has the same meaning as in Section 30 of the Indian Penal Code (45 of 1860). The penalty for giving or taking dowry is provided under Section 3 of the Act reading as : (1) If any person, after the commencement of this Act, gives or takes or abets the giving or taking of dowry, he shall be punishable with imprisonment for a term which shall not be less than

[five years, and with fine which shall not be less than fifteen thousand : rupees or the amount of the value of such dowry, whichever is more Provided that the Court may, for adequate and special reasons to be

nment for a term recorded in the judgment, impose a sentence of impriso | of less than five years. (2) Nothing in sub-section (1) shall apply to or, in relation to,—

(a)

presents which are given at the time of a marriage to the bride without any demand having been made in that behalf :

ained in Provided that such presents are entered in list maint accordance with rule made under this Act ; age to a (b) presents which are given at the time of marri

in tha bridegroom (without any demand having been made

behalf) :

314

[PART Il

VIOLENCE LAWS ON PROTECTION OF WOMEN FROM DOMESTIC

maintained in Provided that such presents are entered in a list accordance with the rules made under this Act : Provided further that where such presents are made by or on behalf of the bride or any person related to the bride, such presents are of a customary nature and the value thereof is not excessive having regard to

the financial status of the person by whom,

or on whose

behalf, such

presents are given.

The Penalty for demanding dowry is provided under Section 4 of the Act reading as : The penalty for demanding dowry. If any person demands, directly or indirectly, from the parents or other relatives or guardian of a bride or bridegroom, as the case may be, any dowry, he shall be punishable with imprisonment for a term which shall not be less than six months, but which may extend to two years and with fine which may extend to ten thousand rupees. A new provision was inserted, Amendment of 1986, whereby—

as

Section

4A

in

the

Act.

by

If any person—

(a) offers, through any advertisement in any mewspaper, periodical, journal or through any other media, any share in his property or of any money or both as a share in any business or other interest as consideration for the marriage of his son or daughter or any other relati ve, (b) prints or publishes or circulates any advertisement referred to EC). (a), he shall be punishable with imprisonment for a term which shall not be less than six months, but which may extend to five years, or wit h fine which may extend to fifteen thousand rupees :

Pr ovided that the Court may, for adequate and special reasons to be recorded in the judgment,

» iIinpose a sentence of impri ae Under Section 5 of the to be void.-Any agre ement f

of less than six months.

WTy was received before marri months after the date of Marriage ; arria or ge, § wi ithi thin three if the marriage with (reeves THe receipt : or e sOfaea er the ree months aftien er the datait e of its (c) if the dowry was received w the woman was a min with three a fe) gd months after she “agua has attained the age of

PART Il]

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315

eighteen years. and pending such transfer, shall hold it

in trust for the benefit of the woman.

.

(2) If any person fails to transfer any property as required by sub-section (1) within the time limit specified therefor or as required by Sub-Section (3) he shall be punishable with imprisonment for a term which shall not be less than six months, but which may extend two ‘years or with fine which shall not be less than five-thousand rupees, but which may extend to ten thousand rupees or with both. (3) Where the woman entitled to any property under Sub-Section (1) dies before receiving it, the heirs of the Woman shall be entitled to claim it from the person holding it for the time being: Provided that where such woman dies within seven years of her Marriage, otherwise than due to natural causes, such property shall— | (a) if she has no children, be transferred to her parents, or (b)

if she has children, be transferred to such children and

such

pending

transfer,

be

held

in

trust

for

such

children.

(3-A)

Where a person convicted under sub-section (2) for failure to transfer any property as required by sub-section (1) or sub-section (3) has not, before his conviction under that sub-section, transferred such property to the woman entitled thereto or, as the case may be, [her heirs, parents

or Children], the Court shall, in addition to awarding punishment under that sub-section, direct, by order in writing, that such person shall transfer the property to such woman or, as the case may be, her heirs, parents or children, within such period a may be specified in the order, and if such person fails to comply with the direction within the period so specified, an amount equal to the value of the

property may be recovered

from him as if it were a fine

imposed by such Court and paid to such woman, case may be, her heirs, parents of children.

(4)

The

as the

Nothing contained in this section shall affect provisions of Section 3 or Section 4. cognizance of offences under this Act can be taken, not

withstanding

anything

contained

in

the

Code

of Criminal

Procedure,

1973 (2 of 1974) by no Court inferior to that of a Metropolitan Magistrate ss or a Judicial Magistrate of the first class shall try any offence unde! this hee Act and no Court shall take cognizance of an offence under except upon—(i)

its own

knowledge or a police report of the facts oat 1

person ager ini | ? constitute such offence, or (ii) a complaint by the or by any eel offence or a parent or other relative of such person, lawful for a pach wa welfare institution or organization.It shall be class to pass any sentenc¢ Magistrate or a Judicial Magistrate of the first

[PART Il

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316

any offence under this authorized by this Act on any person convicted of Act.

a social The recognized welfare institution or organization "means welfare institution or organization recognized in this behalf by the Central or State Government. Nothing in Chapter XXXVI of the Code of Criminal Procedure, 1973 (2 of 1974), shall apply to any offence punishable under this Act. Notwithstanding anything contained in any law for the time being in force, a statement made by the person aggrieved by the offence shall not subject such person to a prosecution under this Act. The offences under this Act are cognizable for certain purposes and to be bailable and non compoundable. The Code of Criminal Procedure, 1973 (2 of 1974), shall apply to the offences under this Act as if they were cognizable offences—

(a) for the purpose of investigation of such offences; and (b) for the purpose of matters other than— () matters referred to in Section 42 of that Code, and (i) the arrest of a person without a warrant

order of a Magistrate.

Every offence compoundable.

under

this

Act

shall

be

or without an

non-bailable

and

non-

Section 8A of the Act deals with burden of proof , which says that where any person in prosecuted for taking or abetting the taking of any dowry under Section 3, or the demanding of dowry under Section 4, the burden proving off sections of shall be on that him. he had not committed an offence under those

this Act. Every Dowry Prohibiti on Officer shall e i following powers and functions, namely, xercise and perform the (a) to see that the Provision s of this Act are complied with: (b) to prevent, as far as possible, ; taki the ; ; taking of, of the demanding of dowry;

h evidence

ye

> eB

as

may be necessary for the Prosecution of persons committing off enc es under the Act: and t is, ty netaad opi

functions as may be assigned to

; e Gover rea rules made under this Sirs confer esuchStatepoGbrete: of wf gene Pi

’ the or as may be specified in in the official

Gazette Olice o cer aS notification, the Do may be gspecified ; in the wrat subject to such imit y io Prnohibanitd io“h n ala: who sh al l ex er ci se such powers made under this Act tions as may be specified by rules i

rs

"

PART Il]

THE PROTECTION OF WOMEN FROM DOMESTIC VIOLENCE ACT, 2005

317

The State Government may, for the purpose of advising and assisting the Dowry Prohibition Officers in the efficient performance of their functions, under this Act, appoint an advisory board consisting of not more than five social welfare worker (out of whom at least two shall be Women) from the area in respect of which the Dowry Prohibition Officer exercises jurisdiction under-sub-section (1). The Central Government may, as provided under Section 9 of the Act by notification in the Official Gazette, make rules for carrying out the purposes of this Act. In particular, and without prejudice to the generality of the foregoing power, such rules may provide for— (a)

the form and manner in which, and the persons by whom, any list of presents referred to in sub-section (2) of Section 3 shall be maintained and all other matters connected therewith; and

(b)

the better co-ordination of policy and action with respect to the administration of this Act.

The State Government also under Section 10 of the Act is empowered to make rules by notification in the official Gazette, make rules for carrying out the purposes of this Act. In particular, and without prejudice to the generality of the foregoing power, such rules— (a) the additional functions to be performed by the Dowry Prohibition Officers under sub-section (2) of Section 8B of the Act; (b) limitations and conditions subject to which a Dowry under his function exercise Officer may Prohibition sub-section (3) of Section 8B of the Act. 1961 Act was enacted to prohibit the giving or taking of ‘dowry’ and

for the protection of married woman against cruelty and violence in the

matrimonial

home

by the husband

and

in-laws. The

mere

demand

for

‘dowry’ before marriage, at the time of marriage or any time after the marriage is an offence. 1961 Act has been amended by the Parliament on more than one occasion and by the (Amendment) Act, 1986, Parliament

to ‘dowry brought in stringent provisions and provided for offence relating

death’.

amendments

The

continued

to

increase

to

became

imperative

disturbing

as

propositions

the

and

dowry

deaths

the

existing

with the provisions in 1961 Act were found inadequate in dealing reproduced above problems of dowry deaths. The definition of ‘dowry’

sively to include would show that the term is defined comprehen ‘any property or valuable properties of all sorts as it takes within its fold connection with marriage wa security’ given OT agreed to be given in term ‘dowry under api te ‘ directly or indirectly. The definition of the ‘ security given or agree the Act shows that any property of valuable to the or indirectly by one party to the marriage be given” either directly "at or before or after the marriage’ as a other party to the marriage ‘dowry marriage of the said parties” would become "consideration for the

[PART Il

LAWS ON PROTECTION OF WOMEN FROM DOMESTIC VIOLENCE

318

punishable

under

the

Act.

Property

or

valuable

security

so

as to

constitute ‘dowry’ within the meaning of the Act must therefore be given or demanded "as consideration for the marriage’.

The definition of the expression ‘dowry’ contained in Section 2 of the Act cannot

be confined

merely

to the ‘demand’

of money,

property of

The valuable security "made at or after the performance of ar legislature has in its wisdom while providing for the definition of dowry emphasised that any money, property or valuable security given, as a consideration for marriage, "before, at or after" the marriage would be covered by the expression ‘dowry’ and this definition as contained in Section 2 has to be read wherever the expression ‘dowry’ occurs in the Act. Meaning of the expression ‘dowry’ as commonly used and understood is different that the peculiar definition thereof under the Act. Under Section 4 of the Act, iuere demand of ‘dowry’ is sufficient to bring home the offence to an accused. Thus, any ‘demand’ of money, property or valuable security made from the bride or her parents or other relatives by the bridegroom or his parents or other relatives or vice versa would fall within the mischief of ‘dowry’ under the Act where such demand is not properly referable to any legally recognized claim and is relatable only to the consideration of marriage. Marriage in this context would include a proposed marriage also more particularly where the non-fulfillment of the demand of dowry" leads to the ugly consequence of the Marriage not taking

place at all. The expression

‘dowry’ under

the Act must

be

e rd "dowry" detinaTh ctti d twoSe i on 304ntannee in Seec B IPC has to be understood as it is of the related to dowry. One is A eres were. are, thres oegasions Matria ge

and

the

third

"at

PART II]

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319

Bride and Bridegroom) Rules, 1985. which shall come into force on the 2nd day of October, 1985 being the date appointed for the coming into force of the Dowry Prohibition (Amendment) Act, 1984 (63 of 1984). It says under Rule 2: . (1) The list of presents which are given at the time of the marriage to the bride shall be maintained by the bride. (2) The list of presents which are given at the time of the marriage to the bridegroom shall be maintained by the ; bridegroom. (3) Every list of presents referred to in sub-rule (1) or sub-rule

0) Fe

(a)

shall be prepared at the time of the marriage or as soon as possible after the marriage; (b) shall be in writing (c) shall contain,— (0 a brief description of each present; (i) the approximate value of the present; (ii) the name of the person who has given the present; and ; (tv) where the person giving the present is related to the bride or bridegroom, a description of such relationship; (d)

shall be signed by both the bride and the bridegroom.

Explanation 1.—Where the bride is unable to sign, she may affix her thumb-impression in lieu of her signature after having the list read out to her and obtaining the signature on the list, of the person who has so read out the particulars contained in the list. Explanation 2.—Where the bridegroom is unable to sign, he may affix his thumb impression in lieu, of his signature after having the list read out to him and obtaining the signature on the list of the person who has so read out the particulars contained in the list.

(4)

The bride or the bridegroom may, if she or he so-desires, obtain

on either or both of the lists referred to in sub-rule (1) or sub-rule (2) the

signature or signatures of any relations of the bride or the bridegroom or of any, other person or persons present at the time of the marriage. 27.

Section

Relevant.—Section

(1)

2(h)

:

Extracts

From

Indian

Penal

Code

as

304-B. Dowry death,—

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 it is shown that soon before her death she was subjected to het cruelty or harassment by her husband or any relative of dowry, husband for, or in connection with, any demand for such

death

shall

be

called

“dowry

death",

and

such

[PART II

STIC VIOLENCE LAWS ON PROTECTION OF WOMEN FROM DOME

320

husband or relative shall be deemed death.

Explanation.—For have

the purposes of sub-section,

same

the

to have cause her

meaning

as

in

Section

‘

dowry"

2 of the

y

shall Dowry

Prohibition Act, 1961 (28 of 1961). (2) Whoever commits dowry death shall be punished with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life. CHAPTER XX-A OF CRUELTY BY HUSBAND OR RELATIVES OF HUSBAND 498-A. Husband or relative of husband of a woman subjecting her to cruelty—Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine. Explanation.—For the purposes of this section. "cruelty"means— (a) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or death (whether mental or physical) of the woman ; or

(b) harassment of the woman where such harassment is with a view to coercing her or any person related to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.

ts28. . Section date re

deere

me

2(h)

: Relevant

Ext racts

From

Code

of Criminal

to enquire and report on suicide, etc.—(1)

When

the

a police station or some other police officer specially

ieee os e State Government in that beha lf receives information = : son has committed suicide, or has been killed by another or by mn animal or machinery or by an accident, or has die d under

otherwise directed by an y rule prescribed by the State Government, or by any general or special ord er of the District or S ub-divisional Magistrate, Shall proceed to the pla ce where the body of such deceased person is.

otther> marrks > of ‘J ini ury as may be found on th Manner, or by wh :

A

at weapon

have been inflicted,

.

€ report

shall

a

ie

or in

Aine

be signed

it any) such marks

by such

police

officer

appear to

and

other

PART II]

THE PROTECTION OF WOMEN FROM DOMESTIC VIOLENCE ACT, 2005

321

persons, or by so many of them as conc ur therein, and shall be forthwith forwarde

d to the District Magistrate or Sub-division al Magistrate.

(3)

When—

() the case involves suicide by woman within seven years of her marriage; or (i) the case relates to the death of a woman within seven years of her marriage in any circumstances raising a reaso nable suspicion that some other person committed an offence in relation to such woman: or (ti) the case relates to the death of a woman within seven years of her marriage and any relative of the woman has made a request in this behalf; or (tv) there is any doubt regarding the cause of death; or (v) the Police Officer for any other reason considers it expedient so to do, he shall subject to such rules as the State Government may prescribe in this behalf forward the body, with a view to its being examined, to the nearest Civil Surgeon, or other qualified medical man appointed in this behalf by the State Government if the State of the weather and the distance admit of its being so forwarded without risk of such putrefaction on the road as would render such examination useless. (4) The following Magistrates are empowered to hold inquests, namely, any District Magistrate or Sub-divisional Magistrate and any other Executive Magistrate specially empowered in this behalf by the State Government or the District Magistrate. Inquest report.—It is not necessary to mention details in the inquest report.

176. Inquiry by Magistrate into cause of death.—(1)

When

any

person dies while in the custody of the police or when the case is of the 174), nature referred to in Cl. (i) or Cl. (ii) of sub-section (3) of Section the nearest Magistrate empowered to hold inquests shall, and in any other case mentioned in sub- section (1) of Sec 174, any Magistrate so empowered may hold an inquiry into the cause of death either instead of, or in addition to, the investigation held by the police officer; and if he does so; he shall have all the powers in conducting it which he would have in holding an inquiry into an offence.

(2)

The Magistrate holding such inquiry shall record the evidence taken by him in, connection therewith in any manner hereinafter prescribed according to the circumstances of the case. (3)

Whenever

examination

such

of the dead

Magistrate

considers

body of any

person

it expedient

who

has

to oop? re

been re

inferred in order to discover the cause of his death, the Magistrate may cause the body to be disinferred and examined. the this section’, an inquiry is to be held under (4) Where

[PAR T Il

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322

Magistrate

shall,

wherever

acticable,

inform

the

relatives

of

the

practicable n, an d shall allow them to deceased whose names and address are know Wa remain present at the inquiry. relative’ Explanation.—In this section, the expression parents, children, brothers, sisters and spouse. 198-A. Prosecution of offences under Section 498-A

means

of the Indian Penal Code—No Court shall take cognizance of an offence punishable under Section 498-A of the Indian Penal Code (45 of 1860) except upon a police report of facts which constitute such offence or upon a complaint made by the person aggrieved by the offence or by her father, mother, brother, sister or by her father’s or mother’s brother or sister or, with the leave of the Court, by any other person related to her by blood, marriage or adoption. A perusal of Section 304B clearly shows that if a married woman dies otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband in connection with demand for dowry, such death shall be called "dowry death" and such husband or relative shall be deemed to have caused the death. The conditions precedent for establishing an offence under this section are as follows— (a)

that a married woman normal circumstances:

had

died

otherwise

than

under

(b) such death was within seven years of her marriage; and (c) the prosecution has established that there was cruelty and harassment in connection with demand for dowry soon before her death: Baljit Singh v. State of Haryana, AIR 2004 SC 1714: (2004) 3 Scc 129.

. ae legislature has by amending the Penal Code and Evidence Act ee enal Law more strident for dealin g with and punishing offences pg es aia Such strident law s would have a deterrent effect €nders only if they\ are so Stri ‘ dently\ impleme nted by th Courts to achieve the legislative intent. : ~~ 29. Section 2(h) : Relevant Extracts From Indi an Evidence Act

won

aibardtikicos as to abatement of suicide by a married len the question is whether the commission

of suicide by a

etted by her husband or any relative of her husband be

Weaver the dar relative of her 1 é a of i ius and , Having regard

had committed Suicide within a period of seven her marrage and that her husb and or such had subjected her to cruelty, the Court may to all the other circumstance s of the case, that

—For the

pur

~ lrpose : : Same meaning as oe, In fey Section eae egy.498-A of this section, ‘cruelty’ , of the Indian P enal Co> esrb sche sate

PART Il]

THE PROTECTION OF WOMEN FROM DOMESTIC VIOLENCE ACT, 2005

to all that when a woman

463

is raped out on the street by a stranger, that

rape has occurred and is wrong. When rape occurs within the marriage, neither abuser nor victim may consider it legal rape. This is partially due to the general acceptance within the culture which tells us that it is the wife’s duty to fulfill her husband's sexual demands. Spousal sexual abuse is a form of domestic violence. When the abuse involves forced sex. it may constitute rape upon the other spouse, depending on the jurisdiction and may also constitute an assault. Many women don't believe they have the right to refuse sex, that'sex on demand’ is an unwritten part of the marriage contract. When they have been raped by their husband, they are inclined to take responsibility for the abuse, furthering the feelings of guilt and lack of self-worth. When no actual physical violence was used (i.e., coercion or force-only) many abusers will deny that rape has actually occurred and treat the abuse as though it was normal and by joint consent. This has the effect of further confusing the victim as to the reality of her experience.

27. Economic abuse.—Economic abuse is a form of abuse when one intimate partner has control over the other partner’s access to economic resources. Economic abuse may involve preventing a spouse from resource acquisition, limiting the amount of resources to use by the victim, or by exploiting economic resources of the victim. The motive behind preventing a spouse from acquiring resources is to diminish victim’s capacity to support his/her self, thus forcing him/her to depend on the perpetrator financially, which includes preventing the victim from obtaining education, finding employment, maintaining or advancing their careers, and acquiring assets. In addition, the abuser may also put the victim on an allowance, closely monitor how the victim spends money, spend victim's money without hi/her consent and creating debt, or completely spend victim's savings to limit available resources. Economic abuse is a form of abuse when one intimate partner has control over the other partner's access to economic resource, which diminishes the victim’s capacity to support him/herself and forces him/her to depend on the perpetrator financially. It is related, or also known as, financial abuse, which is the illegal or unauthorized use of a person’s property, money, pension book or other valuables (including changing the person's will to name the abuser as her), often fraudulently obtaining power of attorney, followed by deprivation of money or other property, or by eviction trom own home. Financial abuse applies to both elder abuse and domestic violence.

A key distinction between economic abuse and financial abuse -— that economic abuse also includes the control of someone's present ol future earning potential by preventing them form obtaining a job or education. Once victims leave their perpetrator, they can be stunned with the autonomy. reality of the extent to which the abuse has taken away their

[PART Il

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464

little victim usually has very the , ion lat iso d an e seeking Due to economic abus om they can rely when wh on le op pe few d an les facing money of their own one of the greatest obstac

n to be n help. This has been show strengest factor that ca the d an ce, len Vio ic st victims of Dome g their perpetrators. discourage them from leavin lack resources, victims often ial anc fin g kin lac to y to find In addition ining that are necessar skills, education,

land tra

children to support. The l era sev ve ha y ma o als d gainful employment, an are Very scarcely available s ce ur so re y it un mm co d number of shelters an the victims in our country for m le ob pr t ges big e Th ia. to the victim in Ind

specialized

house of perpetuator. is shelter after they leave the a ion may involve—preventing uat sit ic est dom a in se abu Economic find as restricting their ability to h suc on, iti uis acq ce our res m spouse fro ets ; their careers, and acquire ass e anc adv or in nta mai t, men employ ney ing education ; spend victim’s mo preventing the victim from obtain ’s ng debt, or completely spend victim without his/her consent and creati loiting economic resources of the savings to limit available resources, exp victim. putting the victim on a In its extreme (and usual) form, this involves and forcing the victim to beg strict" allowance, “withholding money at will im some money. It is for the money until the abuser gives the vict abuse continues. This common for the victim to receive less money as the

from finishing also includes (but is not limited to) preventing the victim dering or education or obtaining employment, or intentionally squan misusing communal resources. Economic abuse is often used as a controlling mechanism as part of a larger pattern of domestic abuse, which may include verbal, emotional, physical land sexual abuse. Physical abuse may include threats or attempts to kill the spouse. By restricting the victims access to economic resources,

the

offender

has

limited

recourses

to

exit

the

violent

relationship.

The following are ways that abusers ma use econom ic abuse with ‘ other forms of domestic violence : ¢ Using physical force, or threat of violence, to get money.

e Providing money for sexual activity.

e Controlling access to a telephone, shopping, forms of isolation.

automobiles

or ability to go

Threatening to remove

their i ‘ir s spouse and children from the house without financial support.

¢

Exploiting her economic disadvantage.

Destroying or taking resources from the spouse and/or children 7 Blaming that it is done be cause the spouse cannot cineca let's the offender do it, or that the spouse instigat asrete of economic abuse, such as destruction of property a a

PART Il]

THE PROTECTION OF WOMEN FROM DOMESTIC VIOLE NCE ACT, 2005

465

There are several ways that abusers may impact a victim’s economic resources. As mentioned earlier, the abuser may refuse the victim to work or make it very difficult to maintain a job. They may likewise impede their ability to obtain an education. Frequent phone calls, Surprise visits and other harassing activities interfere with the spouse's work performance in couples the abuser may thre aten to "out them" with their employer. By denying the victim access to money, such as forbidding the victim from maintaining a bank account, he or she is totally financially dependent upon the abuser for shelter, food, cloth ing and other necessities. In some cases the abuser may withhold those necessities, also including medicine and personal hygiene products. They may also greatly limit their ability to leave the abusive situation by refusing to pay Court-ordered spousal or child support. Abusers may also use force their spouse to obtain credit and then through negligent activities ruin their credit rating and ability to get credit. Economic abuse can manifest in multiple ways, including but not limited to—obtaining credit cards in the victim’s name and amassi ng debt. Obtaining loans/mortgages in the victim’s name and amassing debt; Obtaining loans/mortgages in the victim’s name : Stealing money, personal documents and belongings ; Preventing a victim from gaining financial literacy, employment or work force training ; Ruining a victim’s credit, and credit score ; Refusing to share information about joint finances ; Sabotaging school work or current employment ; The expression "economic abuse "is defined under Explanation i(iv) of Section 3 which includes : (1)

Deprivation

(a)

of :

all or any

economic

or financial

resources

to which

the

aggrieved person in entitled under any law or custom, (b) whether payable under an order of Court or otherwise. (c) which the aggrieved requires out of necessity, including, but no limited to, household necessities for her and her children, if any, (dq) stridhan property, jointly or separately owned by the aggrieved person.

(e) payment of rental related to the shared household, (f/ payment of maintenance. (2)

Disposal of or any alienation of : (a) house hold effects, (b) assets whether movable or immovable, (c) valuables, (d) shares, (e) securities, (f/ bonds and the like, or (g) other property,—

[PART Il

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466

or person has an interest, () in which the aggrieved by virtue of the domestic

(i) is

entitled

to

use

it

relationship, or ved ly required by the aggrie (ii) which may be reasonab person or her children, or (iv) or her stridhan, y or separately held by the (v) or any other property jointl aggrieved person. (3) Prohibition or restriction to : (a) continued access to— (i) resources, or (i) facilities, which the aggrieved person is entitled to— (i) use, or (i) enjoy, by virtue of the domestic relationship. (b) access to the shared household. in 28. Dignity and status of women.—Women’'s Empowerment India is absolutely necessary. It's not about equal pay or conditions ; it’s not about equal pay or conditions ; it’s about being treated as a human being. Although most women in India work and contribute to the economy in one form or another, much of their work is not documented

or accounted for in official statistics. Women plow fields and harvest crops while working on farms, women weave and make handicrafts while working in household industries, women sell food and gather wood while working in the informal sector. Additionally, women are traditionally responsible for the daily household chores (e.g., cooking, fetching water, and looking after children). Since Indian culture hinders women’s access

to jobs in stores, factories and the public sector, the informal sector is particularly

important

for women.

There

are

estimates

that

over

90

percent of working women are involved in the informal sector. Women have now not only found their place in work places but are also party to Governance. In recent years there have been explicit moves

given to increase women's political participation. Women have been representation in the Panchayati Raj system as a sign of political lh get village council

There are many elected women representative at the level. At the central and state levels too women

Today we have women Chief: plinictaes ence.Women’ differThe makingof aIndia. progre in fivessivel largey states en's reservat ‘ to further strengthen political participation.

ion policy bill is slated

There is no doubt t that we are in the midst of a great r evolu re history of women. The evidence is everywhere : the Fee of bbe ia apo ney in Parliament, Courts and in the streets. While tt ws cal ad to fight for over a century to get some of their basi ghts. like the right to vote, the Constitution of India gave women pen

PART Il]

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467

rights with men from the beginning Unfortunately. Wome n in this country are mostly unaware of their rights because of illiteracy and the oppressive tradition. Indian women need protection, whether they are in the wombs of their mothers or on the streets in the cities. There are some unanswered questions relating to women in India :

° What do freedom and equality mean to women in India? ¢ Can they exercise their right to live with dignity? * Do they have the freedom to develop their potential and choose what they should do or be? e Can they acquire knowledge, be creative and productive and live long and healthy lives? | e Are they protected form the major sources of unfreedom, -from violence, discrimination, want, fear and injustice? ¢ Do they enjoy the same chances and choices as men, equally and on the same terms?

° In essence,

how free are Indian women?

men?

How equal are they to

India is a multifaceted society where no generalization could apply to the nations’s various regional, religious, social and economic groups. Nevertheless certain broad circumstances in which Indian women live affect the way they participate in the economy. A common denominator in their lives is that they are generally confined to home, with restricted mobility, and in seclusion. Other, unwritten, hierarchical practices place further constraints on women. Throughout history, women have

generally been restricted to the role of a home-maker; that of mother and wife. Despite major changes that have occurred in the status of women in some parts of the world in recent decades. norms that restrict women to the home are still powerful in India, defining activities that are deemed appropriate for women. They are, by and large, excluded from political

life, which by its very nature takes place in a public forum. In spite of India’s reputation for respecting women, including treating her as a Goddess, history tells us that women were also ill-treated. There was no

equality between men and women. This is true of ancient, medieval and early modern times. The Constitution provided equality to men and women and also gave special protection to women to realize their interests effectively. Special laws were enacted to prevent Indecent Representation of Woman in the Work places. The law also gives women equal rights in the matter of adoption, maternity benefits, equal pay, good working conditions etc. At the international level, the UN Charter, Rights and Convention on Declaration of Human the Universal Elimination

of All

Forms

of Discrimination

against

sought to guarantee better legal status to women. women

in the development

process

has received

Women

(CEDAW)

The role of men and much

attention

in the

last few decades. Although the principle of equality of men and women was recognized as early as in 1945 in the UN Charter and the UN

[PART Il

M DOMESTIC VIOLENCE LAWS ON PROTECTION OF WOMEN FRO

468

ers have pointed out that Declaration of Human Rights of 1948, resea rch n that what would benefit development planners worked on the assump tio trickle down to the ower one section of society (especially men) woul d (women).

was specified under a The new theory argues that a person's role of gender-masculine or patriarchal framework where the scope of sex understanding feminine-was limited within the biological the status and problem (male/female). Therefore, any attempt to assess al framework. Social of women in a society should start from the soci determinants of structure, cultural norms, nd value systems are crucial us there is women’s role and their position in society in respect of the stat ization. a gap between the theoretical possibilities and their actual real Modernity has resulted in a growing flexibility and changes in the gender roles of men and women. The earlier conception that man was the provider of basic necessities for family and women the child bearer and care taker of home, is no longer valid in the changing social structure and economic compulsion.

First we have to understand that every women and less than any man. The

Indecent

Representation

of Women

has its own dignity

(Prohibition)

Act,

1986

is

enacted with an intention to prohibit indecent representation of women through advertisement or in publications, writings, paintings, figures or in any other manner and for matters connected therewith or incidental thereto. The Indecent Representation of Women (Prohibition) Act was passed by Indian Parliament in 1986. This prohibits indecent representation of women through advertisement or in publications, writings, paintings, figures or in any other manner. The Indecent Representation

of Women

(Prohibition)

Act,

1986

(IRWA)

focuses

on

indecent representation of women and brings under its ambit references that are derogatory to the dignity of women. The IRWA, 1986 was enacted

with the specific objective of prohibiting the indecent representation of women through advertisement, publication, writing, and painting or in any other manner. The existing Act, in its present form, covers the print

media. However, over the years, technological revolution has resulted in the development of newer forms of communication such as internet and satellite based communication, multi-media massaging, cable televisi

etc. It has, therefor, become imperative to widen the sco e of the iawn ae cover such forms of media, on one hand. and +8 auenntien We ceva Safeguards to prevent indecent representation of women three Ri deseul betta tte ame te with the objective of prohibiting However, since the existing indislatlon fale the Eco eotect Weert boc e focus

bev that ye is necessary to

use of advanced rechoeeaan al life, it was felt that the scope

ila ep ss poly

sateln.

ee ey pe of oF th the Act may need to be amended.

Se

PART Il]

THE PROTECTION OF WOMEN FROM DOMESTIC VIOLE NCE ACT, 2005

The Indecent Representation

of Women

(Prohibition) Act,

469

1986

(the Act) was enacted to prohibit indecent represen tation of women through advertisements or in publications, writings, paintings, figures or in any other manner. However, the Act in its present form relates primarily to the print media. Since the enactment of the Act, technological revolution has resulted in development of new forms of comm unication, such as, internet and satellite based communication, mult imedia massaging, cable television, etc. It has, thus, become necessary to wide n the scope of the Act so as to cover the above forms of media. Further, considering that the National Crimes Records Bureau recorded a total numb er of 845, 895 and 453 cases of violation of the provisions of the Act in the years 2009, 2010 and 2011, respectively, for the law to be more effective, stringent punishment which Acts as deterrent also becomes essen tial. It is also felt that the power to enter any premises and conduct sear ch and seizure of any material, if there is reason to believe that an offence under the Act has been committed, should be made more effective and the officers conducting such searches are given sufficient protection whil e carrying out their duties under the Act.

It is, therefore, proposed to amend the Indecent Representation of Women (Prohibition) Act, 1986 to ensure more effective protection to women against their indecent representation. The Bill, inter alia, provides

to—

(a)

define the "indecent representation of women"

to mean

the

depiction of the figure or form or body or any part thereof,

of a woman

(b)

(c)

(dq)

(e)

The Bill

in such a way as to have the effect of being

indecent or derogatory to or denigrating women or is likely to deprave, corrupt or injure public morality ; amend the definitions of'advertisement” and "distribution" and also to define "electronic form", "material" and "publish" ; prohibit the publication or distribution of any material, by any means, which contains indecent representation of women in any form ; increase the maximum imprisonment from two years to three years and fine from two thousand rupees to a fine of not less than fifty thousand rupees which may be extended to one lakh rupees for first offence ; and increase the minimum imprisonment for second or subsequent offence from six months to two years and maximum imprisonment from five years to seven years and minimum fine from ten thousand rupees to one lakh rupees and maximum fine from one lakh rupees to five lakh rupees : amend Section 5 of the Act so as to authorise any police officer not below the rank of Inspector to make investigation of Inspector to make investigation of offences under the Act. seeks to achieve the above objectives.

M DOMESTIC VIOLENCE LAWS ON PROTECTION OF WOMEN FRO

470

[PART Il

nt Representation of Women ece Ind the m fro ts rac Ext 29. t 6).—In this Act, unless the contex 198 of (60 6 198 , Act ) ion bit ohi (Pr otherwise requires.—

ce, circular, label, wrapper (a) “advertisement” includes any noti visible any includes also and document or other t, sound, smoke representation made by means of any ligh or gas ; way of sample (b) “distribution”. includes distribution by ()

whether free or otherwise ; “indecent representation of women"

means the depiction in any manner of the figure of a woman, her form or body or any p art thereof in such a way as to have the effect of being indecent, or derogatory to, or denigrating, women, or is likely to deprave, corrupt or injure the public morality or morals ; *

x

*«

*

*

No person shall produce or cause to be produced, sell, let to hire, distribute, circulate or send by post any book, pamphlet. paper, slide, film, writing, drawing, painting, photograph, representation or figure which contains indecent representation of women in any form : Provided that nothing in this section shall apply to— (a) any book, pamphlet, paper, slide, film, writing, drawing, painting, photograph, representation or figure— () the publication of which is proved to be justified as being for the public good on the ground that such book, pamphlet, paper, slide, film, writing, drawing, painting, photograph, representation or figure is in the interest of science, literature, art, or learning or other objects of general concern ; or (iQ which is kept or used bona fide for religious purposes ; (b) any representation sculptured, engraved, painted or otherwise represented on or in—

(9 any ancient monument within the meaning of the Ancient Monument and Archaeological Sites and Remains Act, 1958 ; or (i)

any temple, or on any car used for the conveyance idols, or kept or used for any religious purpose :

of

(c) any film in respect of which the provisions of Part II of the Cinematograph Act, 1952 will be applicable. (a) Subject to such rules as may be prescribed, any Gazette Officer authorized by the State Government may, within the local limits of the area for which he is so authorized. — *

(b)

seize

Slide,

any

*

*

advertisement

film,

writing,

*

or

any

drawing,

*

book,

amphl paper, pamphlet, painting, photograph,

PART Il]

THE PROTECTION OF WOMEN FROM DOMESTIC VIOLENCE ACT, 2005

471

representation or figure which he has reason to believe contravenes any of the provisions of this Act ; The Union Cabinet on 11 October 2012 approved the introduction of Amendments to the Indecent Representation of Women (Prohibition) Act, 1986 in Parliament. : The amendments proposed are as : (a) Broaden the scope of the law to cover the audio-visual media and material in electronic form which includes Internet, satellite-based communication, multi-media massaging and cable television, among others. (b) Penalties to be enhanced to a maximum of three years of imprisonment and fine of between 50000 to 100000 Rupees for first conviction, and imprisonment of not less than two years, but which may extend to seven years, and a fine between 100000 Rupees to 500000 Rupees for second conviction.

The sense of modesty in all women is of Course not the same. It varies from woman to woman. In many cases the woman’s sense of modesty would not be known to others. If the test of the offence of out raging the modesty of woman, was the reaches of the woman, then it would have to be proved that the offender knew the standard of the modesty of the woman concerned or otherwise, it could not be proved that he had intended to outrage "her" modesty or knew it to be likely that his Act would have that effect. In majority of the case this is not possible thing to be proved. Hence held in the case of State of Punjab v. Major Singh, AIR 1967 SC 63, that the reaction of the woman would be irrelevant. The test of the outrage of modesty must be whether a reasonable man will think that the Act of the offender was intended to or was known to be likely to outrage the modesty of the woman. In considering the question, he must imagine the woman to be a reasonable woman and keep in view all circumstances concerning her, such as, her standard and way of life and the known nations of modesty of such a woman. There is no particular yardstick of universal application that can be made for measuring the amplitude of modesty of woman as it may vary country to country or society to society as stated in the case of State of Kerala v. Hamsu,

(1988) 3 Crimes

161 (Kerala).

Section 354 of the Penal Code deals with Outraging the Modesty of Woman, reading as follows : "354. Assault or criminal force to woman with intent to outrage her modesty.—Whoever assaults or uses criminal force to any woman, intending to outrage or knowing it to be likely that he will there by outrage her modesty, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, 01 with both". The ingredients of the offence are : 1. That the person aggrieved was a woman.

M DOMESTIC VIOLENCE LAWS ON PROTECTION OF WOMEN FRO

472

2.

[PART Il

d Criminal force to her. That the accused assaulted or use

her modesty or knowing that 3. That he did so intending to outrage n are essentially thing of the he was likely to do so knowledge and intentio existence of

objects. The mind and cannot be demonstrated like physical various circumstances intention or knowledge has to be culled out from ged to have been in which and upon whom the alleged offence is alle , and that "the committed. The essence of a woman's modesty is her sex’ a request for Act of pulling a woman, removing her saree, coupled with woman ; sexual intercourse... would be an outrage of the modesty of the icient to and the knowledge that modesty is likely to be outraged, is suff constitute the offence. The Penal Code does not define modesty. According to Shorter Oxford English Dictionary, ‘modesty’ means “decorous in manner and conduct : not forward or lewd; shamefaced". Modesty is defined as the quality of being modest, and in relation to woman “womanly propriety of behaviour ; scrupulous chastity of thought, speech and conduct".

As per Webster’s New International Dictionary, ‘modest’ means ‘observing the proprieties free from familiarity, indecency, or lewdness’.

But the problem is that the definition of molestation makes an assault on a woman culpable only if it is done with the intention of outraging her modesty. Redressal has been problematic in the absence of a liberal and expansive definition of ‘modesty’ and ‘intention of outraging’, ‘Courts have displayed a patriarchal mindset in dealing with the victim. Any person who assaults a woman or uses criminal force on any woman with the intention to outrage her modesty is guilty of an offence under Section 354 of the Indian Penal Code. He may also do so with the knowledge that by doing so he would be outraging the modesty of the woman. Any person who utters any word or makes any sound or gesture or exhibits any object with the intention that it will be seen or heard by

such woman or will intrude up on her privacy is guilty of insulting the modesty of that woman. Some of the examples illustrating Acts that amount

to outraging the modesty of a woman are shugging a woman without her consent, kissing her ; touching her private parts or any Act which is likely to put her to shame by outraging her modesty ; Sriting es aeBonn. ie eg vulgar gestures : displaying vulgar with vulgar sugges ' house and making vulgar cedtlti : exhibi ts ude boat — In the case of Raju Paudurang Mahale v . State of Maharashtra, 2004

Cri LJ 1441 (SC), ? it has been observ ed that ‘modesty’ in Secti i a a clase ft ve 354 is an attribute associated with female human beinid which attaches to a female owing to her sex. i—_—__ The Act of pulling a woman, » r remo vingi her ee for sexual intercourse, is such as te * pe < ne a, of a woman ; and knowledge that mod est y is ikel t be outraged is sufficient to constitute the offe nce wit hou t del te intention of having such outrage alon e for its object —

; :

PART Il]

THE PROTECTION OF WOMEN FROM DOMESTIC VIOLENCE ACT, 2005

473

The ultimate test for ascertaining whether modesty has been outraged or whether the action of the offender is such as could be perceived as one which is capable of shocking the sense of decen cy of a

woman. When any Act done to or in presence of a woman is clearly suggestive of sex according to the common notions of mankind that Act

must fall within the mischief of Section 354. Modesty is the attribute of female sex and she possesses it from her very birth. The Act of indecent assault depends upon the customs and habits of the people no less than upon the age of the woman. So an Act which would be an outrage on the modesty of one woman would be thought nothing of by another. A kiss that would be highly resented by a lady might be no affront to the mind of another. For instance uplifting the veil of a pardah woman would be justly regarded as a highly indecent Act grossly outrageous to her modesty, but it will pass unnoticed in the case of a European. In Aman Kumar v. State of Haryana, 2004 Cri LJ 1399 (SC), It was observed that the essence of a woman's modesty is her sex. The culpable intention of the accused is the crux of the matter. The reaction of the woman is very relevant, but its absence is not always decisive. The Act of pulling a woman, removing her dress coupled with a request for sexual intercourse, is such as would be an outrage to the modesty of a woman, and the knowledge that modesty is likely to be outraged, is sufficient to constitute the offence without any deliberate intention of having such outrage alone for its object. In State of Punjab v. Major Singh. AIR 1967 SC 637, it was observed that in so far as the girl of the age of 7Yr months is concerned, she is physically incapable of having any sense of modesty or propriety of behaviour. Her body is immature, and her sexual powers are dormant. She has not yet developed a sense of shame and has no awareness of sex. Nevertheless from her very birth she possesses the modesty which is the attribute of her sex. In State of Maharashtra

v. Manohar,

1994

Cri LJ 2536

(Bom.),

a

woman came out early in the morning to get water from the village well. The accused caught her hand and forcefully pulled her towards him to take her to a nearby place. She resisted and raised alarm.

Her bangles

were broken and she was injured. The accused was found guilty of the offence under Section 354 and was convicted accordingly. In Jai Chand v. State, 1990 Cri LJ 2039 (Del.), the accused forcibly laid the prosecutrix on bed and broke the string of her pyjama and to her underwear but did not undress himself, the offence fell under Section 354 and the offence of attempt to commit rape was not made out.

In Rupart Deol Bajaj v. Kanwar Pal Singh Gill, AIR 1996 SC 309, the Supreme Court held that where the accused, a superior rank police officer slapped the back of the complainant, an IAS Officer, in a party in a public place, having regard to sequence of events his Act prima facie, amounted to outraging the modesty of the lady IAS Officer. The Apex Court held that, "the ultimate test for ascertaining whether

the modesty

[PART I

LAWS ON PROTECTION OF WOMEN FROM DOMESTIC VIOLENCE

474

offender such as could be outraged is, in the action of the the sense of decency of a as one which is capable of shocking cd Mr. Gill in slapping Mrs. Bajaj on woman", and viewed the alleged Act of the normal sense of feminine her posterior, was not only an affront to of lady-whether there are any decency, but also an affront to the dignity sexual overtones or not.

The

Bombay

High

Court

pointed

out

in the

gi. Maharashtra v. Manohar @ Manya Kanhaiya Baira

of State

case

of

1994 Cri LJ 2536.

t are to the effect that in fact the principles laid down by the Apex Cour ture at a given that the body of a female of a tender age may be imma s of her point of time, but development of a sense of shame, an awarenes age. the sexual characteristics, although get postponed to a particular Court has to regard that from her very birth, she possesses the modesty, which is the attribute of her sex.

Section 354 of the Code is equally applicable to the unfortunate women, who lead immoral lives. For, they can be no more subjected to the unbridled lust of other persons than respectable women and if a person takes indecent liberties with them, he will be as much punishable as if he had outraged the modesty of virtuous woman. But, in the case of such women, the question would be whether what was done by leave and licence.

done was

not

The Madhya Pradesh High Court, in Kuthu @ Tejram Rawat & Anrv. State of Madhya Pradesh, 1998 Cri LJ 960, sensitively observed that an Act of molestation is against human morality and a vulgar exhibition of complete disregard of ethics, values, and non-concern for others’ emotions, sentiment and feelings. In Keshav Baliram Naik v. State of Maharashtra, 1996 Cri LJ 111 (Bom), the accused touched the hand of the blind prosecutrix and removed the quilt with which she was covering

herself and put his hand on her middi’, the conviction of the accused for attempt to commit rape was set aside but conviction under Section 354 was confirmed.

In Ram Das y. State of West Bengal, AIR disbelieved that the accused a Railway Officer to embrace two ladies. In the case of Judhistir 1993 (2) Crimes 973 (Orissa) also there was Satisfy the ingredients of the offence. In the case of Girdhar Gopal v. State, AIR

1954 SC 711, the Court in the Compartment tried Samal v. State of Orissa. no material on record to 1953 MB

147. when

the

girl of nine years age shouted for help when the accused attempted to remove her clothes, it was held that she developed the sense of modesty. In the case of State of Kerala v. Hamsu.

1988 (3) Crimes

161, it was

Stated that a gesture will amount to an assault when it is made with the intention or knowledge that such gesture shall cause apprehension in the a

pepnothes that the maker is about to use criminal force against the as Sault It is made it will amount to an offence under

r. eon lf any ae such

ee

PART Il]

THE PROTECTION OF WOMEN FROM DOMESTIC VIOLENCE ACT, 2005

475

In the case of S.P. Mallik v. State, 1982 Cri LJ 19 ; State of Rajasthan v. Vajairam, 1968 Cri LJ 270 and Ram Mehar v. State of Haryana,

1968

Cri

LJ

1999

(P&H).

name

of such

ingredients

were

established! So also the case in Sadidharam v. State of Kerala, 2005 (4) Crimes 149 (Kerala), neither the use of Crimes 149 (Kerala), neither the

use of Criminal force nor Act of outraging the Modesty is sufficient to attract the provisions of Section 354. Modesty is the qualify of being modest, which means, as regards woman, decorous in manner and conduct. Modesty is related to sense of propriety of behaviour in relation to a woman against whom the offence is said to have been committed. In the case of Uma Ram v. State of Rajasthan, 2003(1) Crimes 180 (Raj), the accused, lifted the ghagra of the prosecutrix and attempted to commit rape, the accused was held guilty of Offence under Section 354 IPC.

In Jayanti Mohapatra v. Sri Narayam Mohanty, 2002 (3) Crimes III (Orissa), it was alleged that the accused dragged the victim by pulling her egarce forcible inspite of protest and hence held guilty of the offence. In Shantaram Nilkantha Meshram v. State. 2002 (1) Crimes 662 (Bom), the accused all of sudden came from behind, caught her from back side and pressed her and hence held that it was clear that he intended to outrage the modesty of the woman. In Harnam Singh alias Bahadur v. State of Rajasthan, 2000 (1) Crimes 528 (Raj), The accused lifted the ghagra of the victim and made

himself naked and caught hold of her ; it was held was guilty of the offence of outraging modesty of a woman. In Ramdas Ajabrao Ingole v. State of Maharashtra, 2005 (4) Crimes 423 (Bom), the father-in-law exhibited his desire to have sexual intercourse with the daughter-in-law and once tried to outrage her modesty. She was so shocked and fed up with the attitude of her father-in-law that she committed suicide. The accused was held guilty of the offence under Sections 306 and 354 IPC. As held in Fulchand v. State of Maharashtra, 2004 (3) Crimes 484 (Bom), no lenient view should be taken, since the offence is committed against the woman. In the case of Kishan Lal v. State of Rajasthan, 2004 (2) Crimes 361

(Raj), the incident of molestation took place two decades

ago and hence lenient view was taken. 30. Protection of children from sexual offences.—A statement by noted that sexual offences the Ministry of Women and Child Development IPC does not are currently covered under different sections of IPC. "The provide

for

all types

of sexual

offences

against

children

and,

more

“ it importantly, does not distinguish between adult and child victims, said in a statement. s a The Protection of Children from Sexual Offences Act, 2012 define and seeks to protect all child as any person below the age of 18 years

sexual harassment and children from the offences like sexual assault, ed for the first time pornography. These offences have been clearly defin

in law.

M DOMESTIC VIOLENCE LAWS ON PROTECTION OF WOMEN FRO

476

[PART II

ments, which have been graded The Act provides for stringent punish The punishments range from depending on the gravity f the offence. varying periods. There is also simple to rigorous imprisonment of the Court. provision for fine, which is to be decided by hment of Special Courts Moreover, the Act provides for the establis d to be recorded within a for trial of offences and the evidence of the chil Special Court should period of 30 days to facilitate speedy trial. The complete the trial within a period of one year. avated"when The bill states that an offense will be treated as “aggr such as committed by a person in a position of trust or authority of child a member of security forces, police office or a public servant. for offences covered in the Act are :

Punishments

° Penetrative Sexual Assault (Section 3)—Not less than ten years which may extend to imprisonment for life, and fine (Section 4) ¢ Aggravated Penetrative Sexual Assault (Section 5)—Not less than ten years which may extend to imprisonment for life, and fine (Section 6) e Sexual Assault (Section 7)—Not less than three years which may extend to five years, and fine (Section 8)

e Aggravated Sexual Assauit (Section 9)—Not less than five years which may extend to seven years, and fine (Section 10) e Sexual Harassment fine (Section 12)

of the Child (Section

11)—Three

years and

¢ Use of Child for Pornographic Purposes (Section 13)—Five years and fine and in the event of subsequent conviction, seven years and fine [Section

14(1)].

The Protection of Children from Sexual offences Act, 2012, has been passed by the Lok Sabha today, 22nd May, 2012. The Bill was earlier passed by the Rajya Sabha on 10th May, 2012.

The Protection of Children from Sexual Offences Act, 2012 has been drafted to strengthen the legal provisions for the protection of childre n from sexual abuse and exploitation. For the first time, a special law has been passed to address the issue of sexual offences against children. Sexual offences are current! y covered under differen t sections of IPC. The IPC does not provide for all types of sexual offe nces against children and,

more

victims. PE

im

portantly, does not distinguish between

catty

adult and child

of Children from Sexual Offences Act, 2012

defines a of wid a. below the age of 18 years and prov ides protection to aa e of the parent of the child or any other person in whom the child has trust or confidence ¢

In case the victim is a girl child, the medical examination shall be conducted by a woman doctor.

¢ Frequent breaks for the child during trial

[PART It

FROM DOMESTIC VIOLENCE LAWS ON PROTECTION OF WOMEN

478

to testify * Child not to be called repeatedly

ter assassination of the child * No aggressive questioning or charac In-camera

e

trial of cases

mit an offence, even when The Act recognizes that the intent to com to be penalized. The attempt to unsuccessful for whatever reason, needs e liable for punishment for commit an offence under the Act has been mad mission of the offence. upto half the punishment prescribed for the Com of the offence, The Act also provides for punishment for abetment ce. This would cover which is the same as for the Commission cf the offen trafficking of children for sexual purposes. For the more heinous offences of Penetrative Sexual Assault, Aggravated Penetrative Sexual Assault, Sexual Assault and Aggravated Sexual Assault, the burden of proof is shifted on the accused. This provision has been made keeping in view the greater vulnerability and innocence of children. At the same time, to prevent misuse of the law, punishment has been provided for making false complaint or proving false information with malicious intent. Such punishment has been kept relatively light (six months) to encourage reporting. If false complaint is made against a child. punishment is higher (one year). The media has been barred from disclosing the identity of the child without the permission of the Special Court. The punishment for breaching this provision by media may be from six months to one year. For speedy trial. the Act provides for the evidence of the child to be recorded within a period of 30 days. Also, the Special Court is to complete the trial within a period of one year, as far as possible. To provide for relief and rehabilitation of the child, as soon as the complaint is made to the Special Juvenile Police Unit (SJPU) or local police. these will make immediate arrangements to give the child, care and protection such as admitting the child into shelter home or to the nearest hospital within twenty-four hours of the report. The SJPU or the a a oa also required to report the matter to the Child Welfare ommittee in 24 hours rehabilitation of the child.

of recording

the complain . x peat

The Act casts a duty on the Central

and

State

term

Governments

to spread awareness through media including the television . radio and the print media

at regular intervals to make the general public, children as well as their parents and guardians aware of the provisions of this Act.

The National Commission for the Protection of Child Rights (NCPCR) ni a ‘ie nia for the Protection of Child Rights (SCP CRs) have oeen made the

desi signated authority to monitor the imp : lementation of the

This is an Act to protect children

sexual

harassment

therewith or incidental there to. VEE

fro

and

.

fiences

and

for matters

connected

PART II]

THE PROTECTION OF WOMEN FROM DOMESTIC VIOLENCE ACT, 2005

479

Whereas clause (3) of article 15 of the Constitution, inter alia, empowers the State to make special provisions for children : And whereas, the Government of India has acceded on the 11th December, 1992 to the Convention on the rights of the Child, adopte d by the General Assembly of the United Nations, which has prescribed a set

of standards to be followed by all State parties in securing the best interests of the child ; And whereas, it is necessary for the proper development of the child that his or her right to privacy and confidentiality be protected and respected by every person by all means and through all stages of a judicial process involving the child ; And whereas it is imperative that the law operates in a manner that the best interest and well being of the child are regarded as being of paramount importance at every stage, to ensure the healthy physical, emotional, intellectual and social development of the child ;

And whereas the State parties to the Convention on the Rights of the Child are required to undertake all appropriate national, bilateral and multilateral measures to prevent— (a) the inducement or coercion of a child to engage in any unlawful sexual activity ; (b) the exploitative use of children in prostitution or other unlawful sexual practices ; (c) the exploitative use of children in pornographic performances and materials ; And whereas sexual exploitation and sexual abuse of children are heinous crimes and need to be effectively addressed. Chapter I Section 2 deals with definitions as follows : 31. requires,

Definitions.—(1) (a)

In this

Act,

unless

the

context

“aggravated penetrative sexual assault' meaning as assigned to it in Section 5 ;

(b) “aggravated sexual assault’ assigned to it in Section 9 ;

has

the

has

same

the

same

meaning

as

(c)

“armed forces or security forces" means

(d)

Union or security forces or police forces, as specified in the Schedule ; "child" means any person below the age of eighteen years ;

(e)

“domestic

relationship"

shall

have

the

armed

otherwise

same

forces of the

meaning

as

assigned to it in clause (f) of Section 2 of the Protection vi Women from Domestic Violence Act, 2005 (43 of 2005) : meaning as (f) “penetrative sexual assault’ has the same

assigned to it in Section 3 ; (g)

"prescribed’ Act ;

means

prescribed

by rules

made

under

this

[PART II

DOMESTIC VIOLENCE LAWS ON PROTECTION OF WOMEN FROM

480

‘nstitution’

"religi

és

shall

meaning

same

the

have

as

vention of Deane the Religious Institutions (Pre

ps

Misuse) Act, 1988 (41 of 1988) ;

as assigned to it in () “sexual assault’ has the same meaning Section 7 ; ned to () "sexual harassment’ has the same meaning as assig it in Section 11 ; (k) "shared household’ means-a household where the person charged with the offence lives or has lived at any time ina domestic relationship with the child ; () "Special Court' means a Court designated as such under Section 28 ; (m) "Special Public Prosecutor’ means a Public Prosecutor appointed under Section 32. (2) The words and expressions used herein and not defined but defined in the Indian Penal Code (45 of 1860), the Code of Criminal Procedure, 1973 (2 of 1974), the Juvenile Justice (Care and Protection of Children) Act, 2000 (56 of 2000) and the Information Technology Act. 2000 (2 of 2000) shall have the meanings respectively assigned to then in the said Codes or the Acts. Chapter II Section 3 deal with PENETRATIVE SEXUAL ASSAULT AND PUNISHMENT THEREFOR, reading as follows : (3) Penetrative sexual assault.—A “penetrative sexual assault” if :

Person

is

said

to

commit

(a) he penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a child or makes the child to do so with him or any or other person ; or

(b) he inserts, to any extent, any object or a part of the body,

not being the penis, into the vagina, the urethra or anus of the child or makes the child to do so with him or any other

person ; or (c) he manipulates any part of the body of the child so as to Cause

penetration

into the vagina,

part of body of the child or makes him or any other person : or (d) - pa ec e tec

Section

his mouth or makes

urethra,

to the penis, vagina,

the to do so to

anus

or any

the child to do so with anus,

urethra of

such person or any other

4 _ provides

assault.—Whoever

commits

AND PUNISHMENT THEREFO R,RAVA TEDg PENETRATIVE SEXUAL ASSAULT Readin as follow : Section 5 deals with AGG

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5S. Aggravated penetrative sexual assault.— (a) Whoever, being a police officer, commits penetrative sexual assault on a child : () within the limits of the police station or premises at which he is appointed ; or (i) in the premises of any station house, whether or not situated in the police station, to which he is appointed : or (ii)

in the course f his duties or otherwise : or

(iv) where he is known as, or identified as, a police officer ; or (b) whoever being a member of the armed forces or security forces commits penetrative sexual assault on a child : (Q within the limits of the area to which the person is deployed ; or (i) in any areas under the command of the forces or armed forces ; or (ti?

in the course of his duties or otherwise

; or

(iv) where the said person is known or identified as a member of the security or armed forces ; or whoever being a public servant commits penetrative sexual assault on a child, or whoever being on the management or on the staff of a jail, remand home, protection home, observation home, or other place of custody or care and protection established by or under any law for the time being in force, commits penetrative sexual assault on a child, being inmate of such jail, remand home, protection home, observation home, or other place of custody or care and protection ; or (e) whoever being on the management or staff of a hospital, whether Government or private commits penetrative sexual assault on a child in that hospital ; or whoever being on the management or staff of an educational institution or religious institution, commits penetrative sexual assault on a child in that institution ; or (g) whoever commits gang penetrative sexual assault on a child Explanation. When a child is subjected to sexual assault by one or more persons of a group in furtherance of their common intention, each of such persons shall be deemed to have committed gang penetrative sexual assault within the meaning of this clause and each of such person shall be liable for that Act in the same manner as if it were done by him alone ; or (h) whoever commits penetrative sexual assault on a child using deadly weapons, fire, heated substance or corrosive substance ; or

[PART Il

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482

(i)

ver

penetr

commits

ative

causing

assault

sexual

harm grievous hurt or causing bodily sexual organs of the child ; or ve sexual assault (j/) whoever commits penetrati

a child

on

which :

causes the child to (0 physically incapacitates the child or clause (b) of become mentally ill as defined under (14 of 1987) or Section 2 of the Mental Health Act, 1987 the child causes impaiment of any kind so as to render or to perform regular tasks temporarily unable permanently ; or as (i) in the case of female child, makes the child pregnant a consequence of sexual assault ; (ii) inflicts the child with Human Immunodeficiency Virus or any other life threatening disease or infection which may either temporarily or permanently impair the child by rendering him physically incapacitated, or mentally ill to perform regular tasks ; or (k) whoever, taking advantage of a childs mental or physical disability, commits penetrative sexual assault on the child, or whoever commits penetrative sexual assault on the child more than once or repeatedly ; or whoever commits penetrative sexual assault on a child below twelve years ; or whoever being a relative of the child through blood or adoption or marriage or guardianship or in foster care or having a domestic relationship with a parent of the child or who is living in the same or shared household with the child, commits penetrative sexual assault on such child ; or whoever being, in the ownership, or management, or staff. of any institution providing services to the child, commits penetrative sexual assault on the child : or whoever being in a position of trust or authority of a child commits

penetrative

sexual

assault

on

the

child

in

on

a chi

institution or home of the child or anywhere else ; or whoever

commits

penetrativ e€ sexual

assault

knowing the child is pregnant : or whoever commits penetrative sexual ass attempts to murder the child : or

praith commits course

aU.

90

i Cae

an

and

penetrative sexual assault on a child in

of communal

or sectarian

violence

: or

pe commits penetrative sexual assault on a chil d and ps as been previously convicted of having comm itted an ence under this Act or any sexual off ence punis ; under any other law for the time being in force by al

PART Il]

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483

(u) whoever commits penetrative sexual assault on a child and

makes the child to strip or parade naked in public, is said

to commit aggravated penetrative sexual assault. Section 6 provides for punishment for aggravated penetrativ e sexual assault, reading as follows :—Whoever, commits aggra vated penetrative sexual assault, shall be punished with rigorous imprisonme nt for a term which shall not be less than ten years but which may extend to imprisonment for life and shall also be liable to fine.

Section 7 deals with THEREFOR, as follows :

SEXUAL

ASSAULT

AND

PUNISHMENT

Sexual assault——Whoever, with sexual intent touches the vagina, penis, anus or breast of the child or makes the child touch the vagina, penis, anus or breast of such person or any other person, or does any other Act with sexual intent which involves physical contact withou t penetration is said to commit sexual assault. Section 8 provides for punishment, for sexual assault. Reading as follows :—Whoever, commits sexual assault, shall be punished with imprisonment of either description for a term which shall not be less than three years but which may extend to five years, and shall also be liable to fine.

Section 9 deals with AGGRAVATED SEXUAL ASSAULT AND PUNISHMENT THEREFOR, as follow : Aggravated sexual assault.—(a) Whoever, being a police officer, commits sexual assault on a child : () within the limits of the police station or premises where he is appointed ; or (i) in the premises of any station house whether or not situated in the police station to which he is appointed ; or (iii) in the course of his duties or otherwise ; or (tv) where he is known a, or identified as a police officer ; or (b) Whoever, being a member of the armed forces or security forces, commits sexual assault on a child : ()

within

the

limits

of the

area

to

which

the

person

deployed ; or (i)

in any areas

under

the command

of the security or armed

(ii)

forces ;or in the course of this duties or otherwise ; or

(iv)

where he is known or identified as

a member of the security

or armed forces ; or (c) Whoever being a public servant commits child ; or (d)

Whoever

being on

the management

is

or on

sexual

assault

on

a

the staff of a jail, or

remand home or protection home or observation home, or other place of custody or care and protection established by or under any law for the

time being in force commits sexual assault on a child being inmate of

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484

home or tion home or observation tec pro or me ho nd ma re such jail or e and protection ; Or other place of custody or car pital, nagement cr staff of a hos (e) Whoever being on the ma ual assault on a child in sex s it mm co e, vat pri or nt whether Governme that hospital ; or

ment or staff of an educational ge na ma the on ng bei r ve oe Wh (f) its sexual assault on a child in mm co on, uti tit ins ous igi rel or on uti instit its gang sexual assault on a child. mm co r eve who (g) or ; on uti tit ins t tha

d to sexual assault by one or Explanation—When a child is subjecte their common intention, each more persons of a group in furtherance of mitted gang sexual assault of such persons shall be deemed to have com h person shall be liable within the meaning of this clause and each of suc by him alone ; or for that Act in the same manner as if it were done deadly (h) Whoever commits sexual assault on a child using weapons, fire, heated substance or corrosive substance ; or () Whoever commits sexual assault causing grievous hurt or

causing bodily harm and injury or injury to the sexual organs of the child ; or () Whoever commits sexual assault on a child, which :

() physically incapacitates the child or cause the child to become mentally ill as defined under clause (1) of Section 2 of the Mental Health Act, 1987 (14 of 1987) or causes impairment of any kind so as to render the child unable to perform regular tasks, temporarily or permanently ; or

(iQ inflicts the child with Human Immunodeficiency Virus or any other life threatening disease or infection which may either temporarily or permanently impair the child by rendering him physically incapacitat ed. or mentally ill to ; “a perform regular tasks

P

(k) Whoever, ; taking advanta ge of a childs m . disability, commits sexual assault on the child : or BeTourn. ears ts sexual assault on the child more than once or Whoev : orer commi sepent()edty ie

(m)

Whoever

commi ts sexual

assault on a child below

twelve years

n po citer ot being a relative of the child through blood or adoption

ech

al eo

or

in

future

care,

or

having

domestic

p with a parent of the child, or who is living in the same or shared household with the child, commits sexual assault on the child in ' SPR institution. - sor (0) Wh oever, being in the ownership or man agement or staff, of any institution providin & services to t ehileeitl ‘euch institution | dr he child, commits sexual assault on the

~ PART Il]

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485

(p) Whoever, being in a position of trust or authority of a child, commits sexual assault on the child in an institution or home of the child or anywhere else ; or

(q) Whoever commits sexual assault on a child knowing the child is

pregnant ; or

(r) Whoever commits murder the child ; or

sexual

assault

(s) Whoever commits sexual assault communal or sectarian violence ; or

on a child and on

a child

attempts

to

in the course

of

(1 Whoever commits sexual assault on a child and who has been previously convicted of having committed any offence under this Act or any sexual offence punishable under any other law for the time being in force ; or (u)

Whoever commits sexual assault on a child and makes the child

to strip or parade naked in public, is said to commit aggravated sexual assault.

Section 10 provides for punishment for aggravated sexual assault., reading as :—Whoever, commits aggravated sexual assault shall be - punished with imprisonment of either description for a term which shall not be less than five years but which may extend to seven years, and shall also be liable to fine.

Section 11 deals with SEXUAL THEREFOR, as follows :

HARASSMENT

AND

PUNISHMENT

Sexual harassment.—A person is said to commit sexual harassment upon a child when such person with sexual intent : ()

utters any word or makes any sound, or makes any gesture

or exhibits any object or part of body with the intention that such word or sound shall be heard, or such gesture or object or part of body shall be seen by the child ; or (i) makes a child exhibit his body or any part of his body so as it is seen by such person or any other person ; or (ii) shows any object to a child in any form or media for pornographic purposes ; or

(iv) repeatedly or constantly follows or watches or contacts a child either directly or through electronic, digital or any other means ; or (v) threatens to use, in any form of media, a real or fabricated depiction through electronic, film or digitalor any other mode, of any part of the body of the child—or the involvement of the child in a sexual Act ; or (vd

as

entices

a_

gratification

child

for

therefor.

pornographic

Explanation.

purposes

Any

or

question

gives

which

involves sexual intent shall be a question of fact. sment., reading Section 12 provides for punishment for sexual haras a child shall be :—Whoever, commits sexual harassment upon

486

M DOMESTIC VIOLENCE LAWS ON PROTECTION OF WOMEN FRO

[PART Il

ion for a term which may punished with imprisonment of either descript be liable to fine. extend to three years and shall also

d for pornographic Chapter III Section 13 deals with Use of a chil child in any form of , reading as follows :—Whoever, uses

purposes ement telecast by television media (including programme Or advertis form or printed form, channels or internet or any other electronic rtisement is intended for whether or not such programme Or adve of sexual gratification, personal use or for distribution), for the purposes which includes : ; (a) representation of the sexual organs of a child l Acts (b) usage of a child engaged in real or simulated sexua (with or without penetration)

;

(c) the indecent or obscene representation of a child, shall be guilty of the offence of using a child for pornographic purposes. Explanation. For the purposes of this section, the expression "use a child" shall include involving a child through any medium like print, electronic, computer or any other technology for preparation, production, offering, transmitting, publishing, facilitation and distribution of the pornographic material. Section 14 provides for Punishment for using child for pornographic purposes, as : (1) Whoever, uses a child or children for pornographic purposes shall be punished with imprisonment of either description which may extend to five years and shall also be liable to fine and in the event of second or subsequent conviction with imprisonment of either description for a Pea which may extend to seven years and also be liable to ne. (2) If the person using the child for pornographic purposes commits an offence referred to in Section 3, by directly participating in pornographic Acts, he shall be punished ae rigorous imprisonment for life and shall be liable to ine. (3) If the person using the child for pornographic purposes commits an offence referred to in Section 5, ye directly participating in pornographic Acts, he shall be punished lag ede imprisonment for life and shall also be liable e.

(4) If the person using the child for pornographic purposes commits an offence referred to in Section 7, by directl

participating in pornographic Acts, he shal l be atiiatied with imprisonment of either description for a term which Shall not be less than six years but which may extend eight years, and shall also be liab le to fine f ane (5) If the person using the child for pornographic | purposes commits an offence referred to in Section 9, by directly

PART Il]

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487

participating in pornographic Acts, he shall be punished with imprisonment of either description for a term which shall not less than eight years but which may extend to ten years, and shall also be liable to fine. Section 15 providers for Punishment for storage of pornographic material involving child, as :— Any person, who stores, for commercial purposes any pornographic material in any form involving a child shall be punished with imprisonment of either description which may extend to three years or with fine or with both. , Chapter IV Section 16, deals with abetment of an offence, reading as: A person abets an offence, who First.—Instigates any person to do that offence ; or Secondly.—Engages with one or more other person or persons in any conspiracy for the doing of that offence, if an Act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that offence ; or

Thirdly.—Intentionally aids, by any act or illegal omission, the doing of that offence. Explanation I—A person who, by wilful misrepresentation, or by concealment of a material fact which he is bound to disclose, voluntarily causes or procures, or attempts to cause or procure a thing to be done, is said to instigate the doing of that offence.

wilful

Explanation I[I.—Whoever, either prior to or at the time of commission of an act, does anything in order to facilitate the commission of that act, and thereby facilitates the commission thereof, is said to aid the doing of that act. Explanation III.—Whoever employ, harbour, receives or transports a child, by means of threat or use of force or other forms of coercion, abduction, fraud, deception, abuse of power or of a position, vulnerability or the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of any

offence under this Act, is said to aid the doing of the act. Section 17 provides for 17. Punishment for abetment., reading as : Whoever

committed

abets

any

offence

in consequence

under

of the abetment,

punishment provided for that offence. Act or offence Explanation—An

consequence

of abetment,

this Act,

is

said

when it is committed

if the act abetted

shall to

with

be punished be

committed

in consequence

is

in

of the

which instigation, or in pursuance of the conspiracy or with the aid, ; constitutes the abetment. an offence, Section 18 provides for Punishment for attempt to conunit reading as :—

| 488

DOMESTIC VIOLENCE LAWS ON PROTECTION OF WOMEN FROM

[PART Il

ence punishable under this Act Whoever attempts to commit any off mitted, and in such attempt, does or to cause such an offence to be com nce, shall be punished with any Act towards the Commission for the offe ed for the offence, for a term imprisonment of any description provid onment for life or, as the case which may extend to one-half of the impris

ent provided for that may be, one-half of the longest term of imprisonm

offence or with fine or with both. . Chapter V deals with procedure for reporting of cases ment of Chapter VI deals with the procedure for recording state the Child Chapter VII deals with designation of Special Court etc. Chapter VIII deals with procedure and powers of Special Courts and Recording of evidence Chapter IX contain miscellaneous provisions Sexual harassment.—Despite efforts to eliminate sexual harassment, there is no single definition of what constitutes prohibited behaviour. Generally, international instruments define sexual harassment broadly as a form of violence against women and as discriminatory treatment, while national laws focus more closely on the illegal conduct. All definitions, however, are in agreement that the prohibited behaviour is unwanted and causes harm to the victim. Such unwelcome sexually determined behaviour as physical contact and advances, sexually coloured remarks, showing pornography and sexual demands, whether by words or actions. Such conduct can be humiliating.

The International Labor Organization (ILO) is a specialized United Nations agency that has addressed sexual harassment as a prohibited form of sex discrimination under the Discrimination (Employment and Occupation) Convention (No. CIII). The ILO has made clear that sexual harassment is more than a problem of safety and health, and

unacceptable working conditions, but is also a form of violence (primarily

against women).

It is also addressed as unwanted conduct of a sexual nature, or other conduct based on sex affecting the dignity of women and men at work. This includes unwelcome physical verbal or nonver bal conduct. Cond uct is considered sexual harass ment if it . i is (1) unwanted, rowsth or offensive ; (2) if the victim’s refusal or acceptan ce f the enaviour influences decisions concerning her employment or (3) the conduct creates : intimidati ng, environment for thean_recipie g hostile or humiliating working nt. cata heen a a : - and (1)

Sates was one of the first countries to define sexual as a prohibited form of sex discrimination and defined sexual as—unwelcome sexual advances, requests for sexual other verbal or physical conduct of a sexual nature, when : submission to such conduct is made either explicitly or pe implic i itl iny a term or condition of an individual's

PART Il]

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489

(2) submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individual ; or (3) such conduct has the purpose or effect of unreasonably interfering with an individual’s work performance or creating an intimidating, hostile or offensive working environment.

Despite the lack of a universal definition of sexual harassment, there is general consensus about what constitutes prohibited conduct and for

an

action

criteria

to

be

considered

sexual

harassment

it must

meet

:—

(1)

(2)

the action is related to sex or sexual conduct : the conduct is unwelcome, not returned. not mutual

these

; and

(3)

the conduct affects the terms or conditions of employment, in some cases including the work environment itself. Conduct of a sexual nature includes a range of behaviours or actions, since there is a very wide range of activities which are expressions of sexuality or have sexual connotations in our society. Therefore, behaviour which may appear relatively innocent to behaviour which is blatantly illegal can all constitute conduct of a sexual nature. In order to qualify as sexual harassment the behaviour must be deliberate and/or repeated. Some forms of sexual behaviour are so offensive that the first time they occur they are considered deliberate, inappropriate, and sometimes even illegal actions, other behaviours must be repeated over and over again before they become harassment. Whether a particular behaviour is defined as sexual harassment depends largely on whether the behaviour is unwelcome to the target, along with the circumstances surrounding those evens. Unwelcome behaviours, which are considered sexual harassment, can be of verbal, non-verbal. physical, or visual nature. Conduct that is based on relates specifically to the sex In other words, the offensive over sexual solicitation) or the intended victim.

the person's sex means that the behaviour of the individuals involved in the incident. behaviour reference the victim's sex (e.g., behaviour occurs because of the sex of the

Whether one or a series of incidents amount to harassment depends on a balancing of the severity of the incidents and their frequency. A single incident may constitute harassment, especially if the incident is prolonged, offensive and very serious in nature. On the other hand, a and of seriousness with varying amounts of events combination

frequency may also be harassment..

The affront to personal dignity that occurs as a result of sexual and

other types of harassment, by definition, detrimentally affects the work

environment. It is important to understand the intent of a person's behaviour. What matters is the impact of the behaviour. A hostile environment usually requires a pattern of offensive conduct. Sexual

EN FROM DOMESTIC VIOLENCE LAWS ON PROTECTION OF WOM

490

[PART II

lence It in cludes both physical vio ms. for of y iet var a e tak can harassment ation of a such as coercion or the cre ce len vio of ms for tle sub e and mor hostile work environment. the person who is the recipient t tha is n tio cep per mon com Another anyone the sexual harassment. In fact, of the behaviour is the victim of ed duct, whether they were the intend who is affected by the offensive con e harassment. The victim does not hav "target" or not, is a vicim of sexual offensive

anyone affected by the to be the person harassed but could be

conduct.

power and takes place Sexual harassment is inextricably linked with cts and second class in societies which often treat women aS Sex obje

citizens.

of sexual It is very important to closely examine the "sexual" aspect for this harassment, because sexuality is often used as a jurisdiction social practice. Confusion about the difference between sexual invitation and sexual harassment is common. Many men and women around the world believe that sexual harassment is a practice based on simple sexual attraction. It is often seen as an expression of male interest and a form of flattering sexual attention for women- a sometimes vulgar but essentially harmless romantic groan, well within the range of normal, acceptable behaviour between men and women.

However, the difference between invitation and harassment is the use of power. Harassment is not a form of Courtship and it is not meant to appeal to women. It is designed to coerce women, not to attract them. When the recipient of sexual harassment has no choice in the encounter, or has reason to fear the repercussions if she declines, the interaction has moved

out of the realm

of invitation

into the arena

of intimidation

and aggression.

The Sexual Harassment of Women at Workplace (Prevention Prohibition and Redressal) Act, 2013 is legislative Act in India that seeks to protect women from sexual harassment at their place of work it was ta

by the Lok Sabha (the lower house of the Indian Parliament) on 3

eptember 2012. It was passed by the Rajya Sabha (the upper house of

ary 26 2013. The a Bi 20 Seep of the President on 23 April 2013.

the Indian Parliament) on Febru

This is an Act to provide protection against sexual harassment

of

wo men at work place ‘ and for the prevention and redressal of complaints of sexual harass >a ment and for matters connected therewith or incidental

ew? cwitssexual harassment results in violation of the fundamental

Weide a

end sal to equality under articles 14 and 15 of the Constitution

of Gonaciest Tr right to life and to live with dignity under article 21 sutution and right to practice any prof ession or to carry on wt

PART Ii]

THE PROTECTION OF WOMEN FROM DOMESTIC VIOLE NCE ACT, 2005

491

occupation. trade or business which includes a right to a_ safe environment free from sexual harassment : And Whereas the protection against sexual harassment and the right to work with dignity are universally recognized human rights by international conventions and instruments such as Convention on the Elimination of all Forms of Discrimination against Wome n, which has been ratified on the 25th June, 1993 by the Government of India : And Whereas it is expedient to make provisions for giving effect to the said Convention for protection of women against sexual harassment at work place. The Act will ensure that women are protected against sexual harassment at all the work places, be it in public a private. This will contribute to realization of their right to gender equality. life and liberty and equality in working conditions everywhere. The sense of security at the work place will improve women’s participation in work, resulting in their cconomic empowerment and inclusive growth. The Act uses a definition of sexual harassment which was laid down by the Supreme Court of India in Vishaka v. State of Rajasthan, Article 19(1)(g) of the Indian Constitution affirms the right of all citizens to be employed in any profession of their choosing or to practice their own trade or business. Vishaka v. State of Rajasthan, established that actions resulting in a violation of one’s rights to ‘Gender Equality’ and ‘Life and Liberty’ is in fact a violation of the victim’s fundamental right under Article

19(1)(g).

The

case

ruling

establishes

that

sexual

harassment

violates a woman's rights in the work place and is thus not just a matter of personal injury. The legislative progress of the Act has been lengthy one. The Bill was first introduced by women and child development minister Krishna Tirath in 2007 and approved by the Union cabinet in January 2010 it was tabled in the Lok Sabha in December 2010 and referred to the Parliamentary Standing Committee on Human Resources Development. The Committee’s Report was published on 30 November 2011. In May 2012 the Union Cabinet approved an amendment to include domestic workers. The amended Bill was finally passed by the Lok Sabha on 3 September 2012. The Bill was passed by the Rajya Sabha (the upper house of the Indian Parliament) on 26 February 2013. It has come into force and has been published in the Gazette of India. Extraordinary. Part-I], Section-1, dated the 23rd April 2013 as Act No. 14 of 2013. The basic features of the Act are :

¢ The Act defines sexual harassment at the work place and creates a mechanism for redressal of complaints. It also provides

safeguards against false or malicious charges. of “aggrieved woman", who will get protection ¢ The definition

under the Act is extremely wide to cover all women, irrespective ol her age or employment status, whether in the organised or

[PART I

FROM DOMESTIC VIOLENCE LAWS ON PROTECTION OF WOMEN

492

unorganised customers

sectors,

or

public

covers

and

private

clients.

. and domestic workers as well

a guidelines is confined to the * While the “workplace” in the Vishak r employer- employee nal office set-up where there is a clea

¢

e

e ¢

traditio r to include organisations, relationship, The Act goes much furthe in the public and private department, office, branch unit etc. pitals, nursing home, sector, organized and unorganized, hos sports es, stadiums, educational institutions, sports institut ee during the course complex and any place visited by the employ of employment including the transportation. within a time The Committee is required to complete the inquiry t will be period of 90 days. On completion of the inquiry, the repor sent to the employer or the District Officer. as the case may be. they are mandated to take action on the report within will be sent to the employer or the District Officer, as the case may be they are mandated to take action on the report within 60 days. Every employer is required to constitute an internal Complaints Committee at each office or brace with 10 or more employees. The District Officer is required to constitute a Local Complaints Committee at each district, and if required at the block level. The Complaints Committees have the powers of civil Courts for gathering evidence, The Complaints Committees are required to provide for conciliation before initiating an inquiry, if requested by the complainant.

¢ Penalties have been prescribed for employers. Non-compliance with the provisions of the Act shall be punishable with a fine of up to Rs. 50,000. Repeated violations may lead to higher penalties and cancellation of licence or registration to conduct business. Upon the Act’s presidential approval, section was added to the Indian Penal code that stipulates what consists of a sexual harassment

offence and what the penalties shall be for a man committing such an

offence. Penalties range from one to three years imprisonment and/or a fine. Additionally ‘ with

sexual

obligated report offences.

beiin

harassment

a

5 A

cri m

ae

ene, oye

The passage of the Bill is significant because of the long years it has taken owing to tremendous opposition from corporate, employers and

many MPs. But in the light of the Justice Verma Commission's detailed

comments

and

suggestions,

it could

have

been

greatly

improved.

The

oon S work place" is a very very capacious phrase that extends from omes to factories, fields. workshops, godowns, hospitals, schools and more. The problems of safety and job security, and a living wage are acute as ever. While a miniscule percentage are in high income jobs a 32. Consensual sexual relationship.—The Madr as High Court ina decision

recently

delivered

s aid

a

couple

relationship will be considered ‘married’.

pie

i

in a

consensual

sexual

PART Il]

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493

The judgment came during an alimony hearing. The mother of two from Coimbatore was left by the man, who fathered her children. A Court in Coimbatore had directed the man to pay maintenance for the children. However, the woman was denied alimony as she did not have valid documents of a marriage. The High Court said even if the girl does not become pregnant after having sexual relationship with a man but if there is strong documentary evidence to show such existence of such a relationship, then also the couple involved in such Acts would be termed as wife and husband. If both decide to separate, the husband cannot marry without getting a decree of divorce. Once the sexual relationship between a man and woman is consummated, they become husband and wife, and rituals are but formalities for societal satisfaction, " the Court added. A single woman over 18 and a single man over 21 indulged in consensual sex they could be considered married.

33. Sex selection and abortion.—Pre-Conception and Pre-Natal Diagnostic Techniques (PCPNDT) Act, 1994 is an federal legislation enacted by the Parliament of India to stop female foeticides and arrest the declining sex ration in India. The Act banned prenatal sex determination. This process began in the early 1990's when ultrasound techniques gained widespread use in India. There was a tendency for families to continuously produce children until a male child was born.. Foetal sex determination and sex selective abortion by medical professionals has today grown into Rs. 1,000 crore industry. Social discrimination against women and a preference for sons have promoted. e The Act provides for the prohibition of sex selection, after conception.

before or

¢ It regulates the use of pre-natal diagnostic techniques, like ultrasound and amniocentesis by allowing them their use only to detect :

1.

genetic abnormalities metabolic disorders chromosomal abnormalities certain congenital malformations haemoglobinopathies

. sex linked AARWN

e

disorders

No laboratory or centre or clinic will conduct any test including ultrasonography for the purpose of determining the sex of the foetus.

¢ No person, including the one who is conducting the procedure as per the law, will communicate the sex of the foetus to the pregnant method.

woman

or her relatives

by words,

signs of any

other

[PART Il

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494

for Browne and eet ¢ Any person who puts an advertisement the form of a notice, conception sex determination facilities in ugh circular, label. wrapper or any document,

or advertises

thro

or engages in interior or other media in electronic or print form ding. wall any visible representation made by means of hoar isoned for painting, signal, light, sound, smoke or gas, can be impr up to three years and fined Rs. 10.000. ly The effect of sex selection is the adverse child sex ration can severe and impact the delicate equilibrium of nature and destroy our moral social fabric. Contrary to what many believe, lesser number of girls ina

society will not enhance their status. Instead. this could lead to increased violence against women, rape. abduction, traflicking and onset of practices such as polyandry. In certain parts of the country, women are being ‘bought as brides too. The laws of India do not permit abortion. The Medical Termination of Pregnancy Act. 1971 (MTP Act), which prohibits abortion, was enacted with a view towards containing the size of the family. However, in some cases the desire for a small family nay have outweighed the desire for a

child or a specific gender, leading to abortions where the sex of the fetus was different from that desired by the family. The MTP Act stipulated that an abortion may lawfully be done in qualified circumstances. But the unscrupulous connived to misuse the law to have abortions conducted for the purpose of sex selection. Later, innovative technologies made sex selection easier, and without the regulations to control the use of such technologies, these technologies began to be misused for sex-selective abortions. These actions necessitated enactment of the Pre-natal Diagnostic Techniques (Regulation and Prevention of Misuse) Act. 1994 (PNDT)) in 1994. This Act was amended in 2002 in an effort to close loopholes contained in the original Act.

The PNDT Act of 1994, later amended objective as stated in the preamble :

in 2002, was enacted with the

To provide for the prohibition of sex selection. before or after conception, and for regulation of pre-natal diagnostic techn iques for the purposes

of detecting

genetic

abnormalities

or

metabolic

disorders

or

chromosomal abnormalities or certain congenital malformati ons or sex-linked disorders and for the prevention of their misuse for sex dete

rmination

leading to female

foeticide

and

for matt

ers connected therewith or incidental thereto. Thus the PNDT Act prohibits the use of all technologies for the purpose : of sex selection, , which would als 0 include the new chrom separation techniques. ae 3 With the blanket prohibition contai ned in Section 3, 4 and 5 of the PNDT Act, there is effectively a ban on sex selection in India. It is not possible to use pre-natal diagnost ic techniques to abort fetuses Kati sex and family history indicate a high risk for certain sex-linke d prceiaie

PART II]

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495

or choose a fetus whose sex is less susceptibl e to certain sex-linked diseases. This blanket prohibition may appear to be a contradiction to the provisions of the MTP Act, which permits the abort ion of a fetus that is at a risk of being born with serious physical or mental disabilities. While it is legally permissible to abort a fetus at risk of serious physical or mental disabilities, it is not permissible to select a fetus of a sex which is less likely to suffer from a sex-linked disease Sex selection is not only about technology. At the heart of the matter is the low status of women in society and the deep-rooted prejudices they face right through their life. To get the complete picture the issue also need s to be seen in the context of a patriarchal social framework and a value system based on ‘son preference’ such as the son being responsible for the carrying forward the family name, support in old-age and for perf orming the last rites. Further, the practice of dowry and the tag of para ya dhan” translate, into daughters being considered an economic liability. Consequently, what we see is discrimination and neglect or the girl child, which could be in terms of inadequate nutrition, denial or limited access to education and health, child labour and domestic violence. At its worst , it translates into one of the most repugnant forms or violence against

women : sex selection.

The PNDT Act primarily provides for the following. ‘Prohibition of sex selection, before and after conception. Regulation, of prenatal diagnostic techniques (e.g., amniocentesis and ultra sonography for the detection of genetic abnormalities, by restricting their use to registered institutions. The Act allows the use of these techniques only at a registered place. for a specified purpose, and by a qualified person who is registered for the purpose. ¢ Prevention of the misuse before or after conception.

of such

techniques

for sex selection.

¢ Prohibition of the advertisement of any techniques used for sex selection as well as these used for sex determination. ¢ Prohibition on the sale of ultrasound registered under this Act. ¢ Punishment

machines

to persons

not

for violations of the Act, Violations carry a five-year

jail term and a fine of which

may extend

to Rs. 59,000/-.

All

offenses are cognizable when police may arrest without a warrant. They are also non-bailable and non-compoundable.

Sex selection refers to the practice of using medical techniques to choose the sex of offspring. The term "sex selection" encompasses a number of practices including selecting embryos for transfer and implantation following IVF, separating sperm, a pregnancy. The topic of sex selection is discussion on gender and genetics because services may be used to preferentially choose selection has a wide range of ethical, legal

and selectively terminating particularly relevant to a genetic technologies and one sex over the other, Sex and social implication. A

CE MEN FROM DOMESTIC VIOLEN LAWS ON PROTECTION OF WO

496

[PART II

cal reasons sex selection for non-medi t tha is n cer con l ica eth significant is that sex nificant eithinical concern sig A on. ati min cri dis rce nfo will rei nforce discrimination. A reasons with rei ons selection for non-medical ection for non-medical reas sel sex t tha is n cer con l significant ethica particularly against women. with reinforce discrimination. engaging in Sex determination for ns tio iva mot e cor ee thr The are and sex selection :

the birth of children medical reasons-such a preventing ers. affected or at risk or X-linked disord les choose to have a b. family balancing reasons-where coup or more

4.

c.

one child of one sex because they already have children of the other sex. of spring gender preference reason-often in favour of male favour stemming from cultural, social, and economic bias in g of male children and as a result of policies requirin couples to limit Sex selection for non-medical reason raises serious moral, legal, and social issues. the principal concerns are that the practice of sex selection will :

distort the natural sex ratio leading to a gender imbalance and b. rain force discriminatory and sexist stereotypes towards women by devaluing females.

a.

In some countries, such as India and China, it is commonly known that the practice of sex-selective abortion has resulted in distortions of

the natural sex ration, in favour of males. In addition, there is concern that sex selection involves inappropriate control over nonessential characteristics of children and may place a potential psychological burden on, and hence cause harm to, sex-selected offspring. Sex selection can take place before a pregnancy is established, during pregnancy

through

prenatal

sex

detection

and

selective

abortion,

or

following birth through infanticide or child neglect. Sex selection is sometimes used for family balancing purposes but far more typically occurs because of a systematic preference for boys. Although the relatively recent availability of technologies for the early determination of sex has provided an additional method

for sex selection, this is not the

root cause of the problem. Where the underlying context of son preference does not exist, the availability of techniques to determine sex does not necessarily lead to their use for sex selection. |a he yi: ee concerns are raised depending on the type and pis dein ection and whether or not it occurs in sperm of embryos.

~iiheon aia eae of effective prenatal diagnostic tools, such as chronic brebirth od es VS), amniocentesis and ultrasound in the 1970s made din the) .-earigol1oo0s, iCentification © a reality! eicntantagia, of embryos for transfer following in vitro fertilization (IVF ) sexing was develope d, enabling highly reliable preconception

PART II]

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497

sex selection. More recently, sperm separation by flow cytometry has enabled a less invasive method of sex selection. In most societies, where sons are preferred for cultural and economic reasons, the preference for male offspring can manife st in a number of ways ranging from differential allocation of house hold resources and medical care, to neglect of female offspring and female infanticide. Attempts to eradicates son preference in India by legal

prohibition of sex selection have not succeeded. In order to addres s the practice of sex selection, the Indian Government introduced the Prenat al Diagnostic Techniques (Regulation and Prevention of Misuse) Act in 1994 which limits the use of prenatal diagnosis to a list of selected congenital conditions and prohibits using these techniques for sex determination of

the fetus.). These regulations, however, have not been strictly enforced,

The Supreme Court of India has issued detailed directives to the national and State Governments to raise awareness on the law on sex determination and for increased surveillance of all clinics providing. The term New Reproductive technologies (NRT) denotes the entire spectrum of moder medical techniques targeted at woman bodies, processes or products and they include : (Q Sex selection Technique,

(i) Non-coital Reproductive Technique, (ti) Long-coital Reproductive Technique, (iv) Miscellaneous Techniques like hymenot plasty etc. NCRT marks the beginning of a process, where by the women’s control over their bodies and sexuality is being progressively reduced. (1) Surrogancy, which is the modern technology to replace a human womb. The foetus has to be grown atleast for a substantial period of its growth within the mother’s womb. Under the process, the woman growing the child inside her uterus need not be its "genetic mother". The surrogate mother is one who womb is “hired for growing the baby. This is a great insult to womanhood and the motherhood. Often the woman whose womb is hired is tortured to for hiring or offered substantial amount. It is great torture to the woman who after delivery had to part with the child. Once she refuses to do so, she is subjected to both physical and mental torture. (2)

Contraceptives

: It may be amusing but correct that ninety

(3)

nine percent of the contraceptives and research on contraception techniques are used for female contraception, inspite of the fact that female reproductive system is highly complex and consists of intricately balanced hormonal Cycle, while the male reproductive system is comparatively less complicated. This is nothing but sex bias and domination over female. Diagnostic Curettage (D & C) of uterus : Scraping of the

CE EN FROM DOMESTIC VIOLEN LAWS ON PROTECTION OF WOM

498

[PART Il

Curette for the removal the h wit s) eru (ut ity cav a anterior of normal tissues OF to obtain of new growths or other ab d . Curettage is usually advise ses gno dia sue tis for al eri mat ation of pregnancy. It may in abortions a medical termin an incomplete abortion. By also be resorted to when there is d © s) of the woman is scraped an this method the womb (uteru or any other tissue, for the matter therein, be it a foetus ght out. pathological investigation is brou ncy before the period of Abortion is the termination of pregna r at 28th week. However for viability which is considered to occu ility is brought down to either international acceptance, the limit of viab expelled foetus weighs less 20th week or foetus weighing 500 gms. If the miscarriage which is mostly than 500 gms, it is called abort us. The term . used by the patient is synonymous with abortion

if caused by Union the Indian Penal Code, causing an abortion, even s it is done to the pregnant woman herself is a criminal offense, unles imprisonment save the life of the woman. The Offense is punishable by for a person of three years, by fine, or by both. The MTP Act provides for an abortion to be performed by a registered medical practitioner in a Government hospital provided. in his opinion. ¢ continuance of the pregnancy, (which at the time must not exceed twelve weeks and) ; ¢ involves a risk to the life of the woman or a grave injury to her physical or mental health ; or ° There is a substantial risk that the child, when born, would suffer such physical or mental abnormalities as to be seriously handicapped. A pregnancy caused by rape is presumed to constitute a grave injury to the mental health of the pregnant woman. The Act also allows an abortion to be performed when the pregnancy occurs due to the failure of any device or method used by any married woman or her husband for the —— limiting the number of children. Where the pregnancy is more

-

elve weeks but less than twenty weeks, the opinion regarding the

medical the medical necessity for an abortion in the above circumstances must be formed in good faith by two medical practitioners. When the

pregnancy is less than 12 weeks, the opinion of one medical practitioner is necessary for the approval of an abortion. All abortions must be performed

in

of the nt hospital, regardless of the length

a Government

pregnancy.

‘ pez en Code, which was enacted in 1860 and was written ear t ritish law at the time of is creation, declared induced

eft ~agm

— . Induced ge".

abortion was defined as purposely "causing

ortion practitioners would

either be incarcerated

for u

ee years, fined, or both, women undergoing~abertions could = im aa for up to seven years and also be charged an additional fine ; y exception was when abortion was induced in order to save the

PART Il]

THE PROTECTION OF WOMEN FROM DOMESTIC VIOLENCE ACT, 2005

499

life of the woman. Despite the fact that this passage in the penal code was changed in Great Britain in 1967. India did not change it until 1971. Countless women died attempting illegal abortions as a result of the penal code, and it was a combination of this and the growing population that made the country reconsider its initial stance. In 1964, the Central Family Planning Board of the Government of India met and formed a committee designed to examine the subject of abortion from medical, legal, social, and moral standpoints. The Abortion Study Committee, spent the next two years studying the issue, and submitted a report with its suggestions in December 1966. This report considered the penal code to be too restrictive and recommended that the law's qualifications should be relaxed, many of these suggestions were included in the subsequent Medical Termination of Pregnancy (MTP) Act. As per India’s Abortion Laws only qualified doctors under stipulated conditions can perform abortion on a woman in an approved cline or hospital. The Indian abortion laws fall under the Medical Termination of Pregnancy (MTP) Act, which was enacted by the Indian Parliament in the year 1971. The MTP Act came into effect from April 1, 1972 and was once amended in 1975. The Medical Termination of Pregnancy (MTP) Act of India clearly states the conditions under which a pregnancy can be ended or aborted, the persons who are qualified to conduct the abortion and the place of | implementation. Some of these qualifications are as follows : ¢ Women whose physical and/or mental health were endangered by the pregnancy

e Women facing the birth of a potentially handicapped or malformed child e

Rape

¢ Pregnancies in unmarried girls under the age of eighteen with the consent of a guardian e Pregnancies in "lunatics" with the consent of a guardian ¢ Pregnancies that result are a result of failure in sterilisation The length of the Pregnancy must not exceed twenty weeks in order to qualify for an abortion. At the time the Act was passed, people feared the overcrowding of hospitals and an increase in promiscuity in teenagers, young adults, and young widows, Sex-selective abortions favouring males was also a concern. Any woman coming to a heath facility seeking termination of pregnancy the following aspects have to be assessed and found appropriate : * Game of the mind of patient and her acceptability of minimum three follow-up visits * ready for surgical procedure if failure or excessive bleeding occurs

500

FROM DOMESTIC VIOLENCE LAWS ON PROTECTION OF WOMEN

[PART II

e family support minor as per MTP Act 1971 ¢ permission of guardian in case of facility ° easy access to appropriate health care s of pregnancy. But an Abortion in India can be done till 20 week een weeks 12 and 20. Only opinion of a second doctor is necessary betw by the MTP Act are registered medical practitioners as prescribed prostol for medical authorised to prescribed mifepristone with miso Mifepristone with abortion (Definition 2 (d) of Section 2 and MTP rule 3). g seven misoprostol for termination of early pregnancy not exceedin as weeks, may be prescribed by a registered medical practitioner y prescribed under Section 4(b) and rule (1), for surgical and emergenc back-up when such a back-up is indicated. This may include primary health care-clinic or hospital-based set-up. Initial workup, counseling, prescription and administration could be in a clinic or in the consulting room. Home administration of misoprostol may be advised at discretion in certain cases with an access to 24 hours emergency services.

In the case of Dr. Meeru Bhatia Prasad v. State, 2002 Cri LJ 674, the victim was subjected to ultrasonography and aminacentesis tests, where by she developed septic because of insertion of infected needle in abdomen and she also had to undergo an operation. But even assuming that she had consented to such tests but definitely not insertion of a needle causing septic to her. In the case of Surendra chauhan v. State of M.P., AIR 2000 SC 1436, the A-2 was certainly not competent to terminate the pregnancy nor his clinic had the approval of the Government. Even basic facilities for abortion were not available in his clinic. Same was the case in State v. Dr. Jaquim Antonio D’Silva, 1999 (4) Crimes 244 (Goa). In the case of Alisa Sharma v. State, 2006 (3) Crimes 369 (Delhi), the victim was administered on sachet containing some power / medicine inducing that it will do good to her health, though it was given to prevent the child to be born. Though the child was born the mother-in-law, sister-in- law and husband were held guilty. ; (34. Stridhan.—The word "Stridhaan’, is, derived from the words stri" meaning woman and "dhana" meaning property. Essentially a word and concept, which comes down centuries from the Hindu smritis, but has today, permeated all forms of marriages in all castes and religions The existence of Stridhan is an ingrained part of Indian culture from limes of yore. As male dominated as the society may be, the existence of the custom of ‘bride price’ indicates that women understood the ot cae of financial independence and Safe guarding their interests ng before the feminist movement mode it popular to do so - Rig ore II ix, 2 defines that stri dhan means woman's property. n tne entire his tory of Hindu law, woman's rights to hold and di property has been recognised. iecipoicss The Dayabhaga School doesn’t reco gnize gifts of immovable property by husband as stridhan. Unde r all the schools of Hindu Law payments mode to a Hindu female in lump sum or periodically for her maintenance

PART Il]

THE PROTECTION OF WOMEN FROM DOMESTIC VIOLENCE ACT, 2005

501

and all the arrears of such maintenance constitute strid han. Similarly, all

movable or immovable properties transferred to her by way of an absolute gift in lieu of maintenance constitute her stridhan.

A full bench in Vinod Kumar Sethi v. State of Punjab, AIR 1982 P& -H 372 held that dowry and traditional presents mode to a wife at the time of the marriage constitute her stridhan. Under Hindu Succession, Act, there is no distinction between the gifts received by her from relatives or strangers and at any stage of her life. and all gifts that she receives will be her absolute proper ty. Ornaments received by her at the time of her marriage are ordinarily her stridhan property. Section 27 of the Hindu Marriage Act, 1955 says that in any proceeding under this Act, the Court may make such provisions in the decree as it thinks just and proper with respect to any property presented, at or about the time of marriage, which may belong jointly to both the husband and the wife. Refusal by husband to return the gift items given to wife at the time of marriage makes the husband liable for prosecution. The Section does not bar the right of the aggrieved person to file criminal complaint under Section 406 I.P.C. If property belonging to the complainant is criminally misappropriated by the accused. The Section empowers a Court while deciding a matrimonial dispute to also pass a decree in respect of property, which may jointly belong to both the husband and wife. This section at best provides a civil remedy to an aggrieved wife and does not in any way take away her right to file a criminal complaint if the property belonging to her is criminally misappropriated by her husband.

The gifts made to the girl before, during and after the marriage by the father, mother and brother present-in law of the girl are the part of the Stridhan. Section 27 and Section 14 of the Hindu Succession Act do not abolish the concept of Stridhan. She is the absolute owner of such properties and can deal with it is any manner she likes. The husband has

no right or interest in it, expect that in the lines of extreme distress as in illness etc. Though the husband can utilize it but he is bound to restore it when he is able to do so. When husband refuses to return Stridhan property of wife, she can take recourse to above provisions to recover the same.

‘Stridhan’ is a traditional concept in Indian Hindu Society which has been derived from two Sanskrit works ‘Stri’ and ‘dhan’ which means ‘Woman’s property’. Usually, stridhan is passed from mother to daughter, unless the woman decides otherwise. Besides the ornaments and trousseau given at marriage, stridhan also includes all the gifts of money,

property, jewellery and so on received by the woman before, during and after marriage from her family, her husband's family, friends and even

strangers. It includes property inherited by the woman from her ey

of

husband's family ; property received by her under a compromise, adve1 ¢

possession or in lieu of maintenance ; property obtained in partition ; an

LL

————

Lr

hmmm

tah

LAWS ON PROTECTION OF WOMEN FROM DOMESTIC VIOLENCE

502

However. gifts to th property bought using proceeds from strid han. part of her stridhan. husband by the woman for her relative will not be r law. Section 14 o A woman’ right to her stridhan is protected unde Act. 1956 read with Section 27 of the Hind the Hindu ea owner of suc! Marriage Act, 1955 make a female Hindu an absolute (2) sce 37 property. In the case of Pratibha Rani v. Suraj Kumar, 1985 and it the Supreme Court of India explained the concept of ‘Stridhan” legal position under the Indian Laws. The Supreme Court of India hel; that "a Hindu married woman is the absolute owner of her stridha property and can deal with it in any manner she likes and, even if it i placed in the custody of her husband or her in-laws they would b deemed to be trustees and bound to retum the same if and whe: demanded by her”. It is. therefore, manifest that the position of stridhan of a Hind: married woman's property during convertures is absolutely clear an unambiguous ; she is the absolute owner of such property and can dea with it in any manner she likes-she may spend the whole of it or give i away at her own pleasure by gift or will without any reference to he husband. Ordinarily, the husband has no right or interest in it with th

sole exception that in time of extreme distress, as in famine, illness or th like the husband can utilize it but he is morally bound to restore it or it value when he is able to so. This right is purely personal to the husban and the property so received by him in marriage cannot be proceede against even in execution of a decree for debt, such being the nature an character of stridhan of woman. If her husband or any other member his family who are in possession of such property. Dishonestl misappropriate or refuse to return the same, they may be liable to b prosecuted.

As stated in the case of Vinod Kumar v. State, AIR 1982 P & H 37 (FB), the concept of stridhan is not affected by the Hindu Succession Ac (Section 14) nor the Hindu Marriage Act. So also held in the case of Bhe Sher Jang Singh v. Virinder Kaur, 1979 Cri LJ 493. As also stated in th case of Vinod Kumar (supra) traditional presents to bri cann take

to have been barred by the Act.

:

aie

=

(1) Gifts made before the nupital fire, explaine d by Katyanan to mean gifts at the time of marriage before the fire which i the (2)

witness of the nupital (adhyagani). Gifts made at the bridal procession, that is. says Katyayan:

ing led from the residenc of ehe parents to that of her husband (pad a vandanika) (3) Gifts made in token of love. - sa Says Katya yana, thos ) e through affection by her father-in-la w and sosthen daa (pritidatta) and those made at the time of her makin obeisance at the feet of elders (pad a vandanika) (4) Gifts made by father, (S) Gifts made by mother.

PART Il}

THE PROTECTION OF WOMEN FROM DOMESTIC VIOLENCE ACT, 2005

(6)

503

Gifts made by brother.

All the commentators agreed that the above is not exhaustive enumeration of stridhana. To the above list Vishnu added :— (1) Gifts made by a husband to his wife On supersession, that wife another of his taking is, as the occasion ‘(adhipendanitta). (2)

Gifts subsequent, that is sap Katyayana, those made after marriage by her husbands relations or her parents relations (anwadhayakabt),

(3)

Sulka. or marriage-fee, a term which is used in different senses in different schools,

(4)

Gifts from sons

and

relations. Vishnu

does not make

any

special mention of gifts made at the bridal procession. It would be manifest from the above that from times immemorial Hindu law has recognized individual ownership of the wife with regard to the aforementioned articles of dowry and traditional presents given at the time of wedding. Continued recognition of this fact and the individual ownership of the Hindu wife with regard there to is manifest from the well settled rule that Stridhan cannot be a attached for the debts of her husband. Equally will acknowledged is that the husband has no right of alienation to that which is the Stridhan of his wife. It is wholly idle, it was said that articles of dowry and traditional presents

given at the time of the wedding cannot be the individual property of a Hindu wife. The bride is entitled to retain her ownership irrespective matrimonial home.

of her entry and

presence

in the

35. Same sex marriage.—The Supreme Court of US recently ruled that married same-sex couples were entitled to federal benefits and, by declining to decide a case from California, effectively allowed same-sex marriages there. The rulings leave in place laws banning same-sex marriage around the nation, and the Court declined to say whether there was a constitutional right to such unions. But in clearing the way for same-sex marriage in California, the nation’s most populous state, the Court effectively increased to 13 the number of states that allow it. The decisions will only intensify the fast-moving debate over reflected the one same-sex marriage, and the clash is the Supreme Court Anthony M. around the nation. In the hushed Courtroom Justice

the federal law in Kennedy announced the majority opinion striking down rk.

a civil rights landma a stately tone that indicated he was delivering while Justice Antonin After he finished, he sat stonily, looking ahead, sent. Scalia unleashed a cutting dis federal Defense of Marriage The vote in the case striking down the of y was joined by the four members Act was 5 to 4, and Justice Kenned

[PART ti

NCE LAWS ON PROTECTION OF WOMEN FROM DOMESTIC VIOLE

504

ely extend many benefits the Court's liberal wing. The ruling will immediat ns, and it will allow to couples married in the states that allow such unio through executive the Obama administration to broaden other benefits actions.

a legal The case on the federal law was the more important one from same-sex perspective, setting the terms for challenges to state bans on

marriage.

Dissenting from the bench, Justice Scalia said that that declaration took "real check." This ruling of US Court may have some impact in India too, may not be so immediately but sooner or later.

alimony.—The relating to—Including 36. Maintenance—Law Section 125 of under both concept of ‘maintenance’ In India is covered the Code of Criminal Procedure, 1973 (Section 125) and the personal laws. This concept further stems from article 15(3) reinforced by Article 39 of the Constitution of India, 1950 (the ‘Constitution’. Under Indian law, the term ‘maintenance’ includes an entitlement to food, clothing and shelter, being typically available to the wife, children and parents. It is a measure of social justice and an outcome of the natural duty of a man to maintain his wife, children and parents, when they are unable to maintain themselves. The object of maintenance is to prevent immorality and destitution children.

and

ameliorate

the economic

condition

of women

and

Maintenance can be claimed under the respective personal laws of people following different faiths and proceedings under such personal laws are civil in nature Proceedings initiated under Section 125 however, are criminal proceedings and, unlike the personal laws, are of a summary

nature and apply to everyone regardless of caste, creed of religion. The

object of such proceedings however is not to punish a person for his past neglect. The said provision has been enacted to prevent vagrancy by compelling those who can provide support to those who are unable to Support themselves and have a moral claim to support Maintenance can

be claimed

either at the interim

Stage,

Le., during the pendency

of proceedings, or the final stage. Chapter III of Hindu Adoption & Maintenance Act, 1956 in Sections 18 to 28 deals with law relating to maintenance reading as follows : Maintenance of wife—(1) Subject to the provisio ns of this section, a Hindu wife, whether married before or after the commencement

Act, agshall

be entitled

; to be maintained

by her husband

of this

during her

(2) A Hindu wife shall be entitled to 1ive separately fr husband without forfeiting her claim to rhatitenian ces Bente (a) If he is guilty of desertion, that is to sa y, of abandoni without reasonable cause and without her angel against her wish, or of willfully neglecti ng her ;

PART Il]

THE PROTECTION OF WOMEN FROM DOMESTIC VIOLENCE ACT, 2005

505

(b)

If he has treated her with such cruelty as to cause a reasonable apprehension in her mind that it will be harmful or injurious to live with her husband ; (c) If he is suffering from a virulent from of leprosy ; (d) If he has any other wife living ; (e) If he keeps a concubine in the same house in which his wife is living or habitually resides with a concubine elsewhere : (f) If he has ceased to be a Hindu by conversion to another religion ; (g) if there is any other cause justifying her living separately ; (3) A Hindu wife shall not be entitled to separate residence and maintenance from her husband if she is unchaste or ceases to be a Hindu by conversion to another religion. Maintenance of Widowed daughter-in-law—(1) A Hindu wife, whether married before or after the commencement of this Act, shall be entitled to be maintained after the death of her husband by her father-in-law. PROVIDED and to the extent that she is unable to maintain herself out of her own earnings or other property or, where she has no property of her own, is unable to obtain maintenance— (a)

from the estate of her husband or her father or mother, or

(b) from her son or daughter, if any, or his or her estate. (2) Any obligation under sub-section (1) shall not be enforceable if the father-in-law has not the means to do so from any coparcenary property in his possession out of which the daughter-in-law has not obtained any share, and any such obligation shall cease on the re-marriage of the daughter-in-law.

Maintenance of children and aged parents—(1) Subject to the provisions of this section of this section a Hindu is bound, during his or her lifetime, to maintain his or her legitimate or illegitimate children and

his or her aged or infirm parents. (2) A legitimate or illegitimate child may claim maintenance

from

his or her father or mother so long as the child is a minor. (3) The obligation of a person to maintain his or her aged or infirm parent or a daughter who is unmarried extends insofar as the parent or

the unmarried

daughter,

as the case

may be, is unable

to maintain

himself or herself out of his or her own earnings or other property. a_

childless

this of purposes the defined—For Dependents : deceased the of relatives "dependants means the following () his or her father ;

Chapter

Explanation.—In step-mother.

his

section

(ii) his or her mother ;

"parent"

includes

(ii) his widow, so long as she does not re-marry

STIC VIOLENCE LAWS ON PROTECTION OF WOMEN FROM DOME

506

[PART Il

sed son or the son (iu) his or her son or the son of his predecea long as he is of predeceased son of his predeceased son, so a minor :

to obtain PROVIDED and to the extent that he is unable maintenance, in the case of a grandson from his father’s or mother’s estate, and in the case of a great-grand son, from the estate of his father or mother or father’s father or father’s mother ; (v) his or her unmarried daughter, or the unmarried daughter of his predeceased son or the unmarried daughter of a predeceased son of his predeceased son, so long as she remains unmarried ; PROVIDED and to the extent that she is unable to obtain maintenance, in the case of a grand-daughter from her of estate in the case father's or mother’s and great-grand-daughter from the estate of her father or mother or father’s father or father’s mother ; (vd his widowed daughter PROVIDED and to the extent that she is unable to obtain maintenance

:

(a) from the estate of her husband, or (b) from her son or daughter if any, or his or her estate ; or (c) from

her father-in-law

or his father

or the

estate

of

either of them :

(vii) any widow of his son or of a son of his predeceased son, so long as she does not remarry : PROVIDED and to the extent that she is unable to obtain maintenance from her husband's estate, or from her son or daughter, if any, or his or her estate ; or in the case of a grandson's widow, also from her father-in-law’s estate (vii) his or her minor illegitimate son, so long as he remains a minor ;

(o)

his or her illegitimate unmarried.

daughter,

so long as she remains

Maintenance of dependents—(1) Subject to the provi sions of sub section (2) the heirs of a deceased Hindu are bound of maintain the dependants of the d : ; Siiacadl

€

deceased out of the estate inherited by them from the

(2) Where.

a dependant has not obtained, by testamentary pag succession, any share in the estate of a Hindu dying after the em etagge = of this Act, the dependant shall be entitled, subject to the Provisions of this Act, to maintenance from those who take the estate

(3) The liability of each

of the persons who takes the estate shall be aproportion to the valvalue of the sha in re or part of the estate taken by him

a (4) Notwithstandin section (3). g contained in sub section (2) or sub no person whoanything is himself a dependant

shall be liable to

PART Il]

THE PROTECTION OF WOMEN FROM DOMESTIC VIOLENCE ACT, 2005

507

contribute to the maintenance of others, if he or she has obtained a share or part the value of which is, or would, if the liability to contribute were enforced, become less than what would be awarded to him or her by way of maintenance under this Act. Amount of maintenance—(1) It shall be in the discretion of the Court to determine whether, and if so what. maintenance shall be awarded under the provisions of this Act, and in doing so the Court shall have due regard to the considerations set out in sub-section (2), or sub-section (3), as the case may be, so far as they are applicable.

(2) In awarded to regard shall (a) (b) (c)

determining the amount of maintenance, if any, to be a wife, children or aged or infirm parents under this Act, be had to— the position and status of the parties ; the reasonable wants of the claimant ; if the claimant is living separately, whether the claimant is justified in doing so ; (d) the value of the claimant’s property and any income derived from such property, or from the claimant's own earnings or from any other sources ; (e) the number of persons entitled to maintenance under this Act. (3) In determining the amount of maintenance, if any, to be awarded to a dependent under this Act, regard shall be had to.— (a) the net value of the estate of the deceased after providing for the payment of his debts ; (b) the provision, if any, made under a will of the deceased in respect of the dependant ; (c) the degree of relationship between the two ; (d)

(e)

the reasonable wants of the dependant ; the dependant between the past relations

and _ the

deceased ; (f) the value of the property of the dependant and any income derived from such property ; or from his or her earnings or from any other source ; (g)

the number this Act.

of dependants

entitled

to maintenance

under

37. Claimant to maintenance should be a Hindu.—No person she has shall be entitled to claim maintenance under this chapter if he or

ceased to be a Hindu by conversion to another religion. of

Amount

Maintenance

may

be

altered

on

change

of

circumstances—The amount of maintenance, whether fixed by a decree encement of this of Court or by agreement, either before or after the comm a material change in the Act, may be altered subsequently if there is circumstances justifying such alteration. Debts

to

have

priority—Subject

to

the

provision

contained

in

[PART II

DOMESTIC VIOLENCE LAWS ON PROTECTION OF WOMEN FROM

508

contracted or payable by the Section 27 debts of every descrip tion ms of his dependants for dece Leeased shall have priority over the clai maintenance under this Act. ndant’s claim for Maintenance when to be a charge—A depe ge on the estate of the maintenance under this Act shall not be a char created by the will deceased or any portion thereof, unless one has been ent between the of the deceased, by a decree of Court, by agreem e, dependant and the owner of the estate or portion, or otherwis Effect of transfer of property on right to maintenance—Where a dependant has a right to receive maintenance out of an estate, and such estate or any part thereof its transferred, the right to receive maintenance may be enforced against the transferee if the transferee has notice of the right or if the transfer is gratuitous ; but not against the transferee for consideration and without notice of the right. Law of maintenance under Hindu Law—Maintenance to wife refers to the payments, which a husband, under certain circumstances is under an obligation to pay. Obligation of payment of maintenance can either during the subsistence of the marriage or after the dissolution of the marriage. Maintenance to wives can further be divided into two— 1. Interim maintenance and maintenance pendente lite 2.

Permanent

maintenance

The interim maintenance is payable from the date of presentation of the petition till the date of dismissal of the suit or passing of the decree. Interim maintenance is supposed to meet the immediate needs of the petitioner. And maintenance pendente lite is for providing the litigation expenses to the claimant.

Under Section 24 of Hindu Marriage Act, 1955 (HMA), either the wife or husband can apply for interim maintenance. The basis of the claim for interim maintenance is that the claimant has no independent income of his/her own to support himself/herself. The provision is silent on the quantum of maintenance and it is upon the discretion of the Court to

determine the quantum.

Similarly,

maintenance

pendente

lite is to be

provided to the claimant who does not have an independent income and

the Pa financicial need of litigation expenses has to be provided by the other Parsi and Christian

Laws—The Section 39 of the Parsi Marria e Bey ya Act, 1936 (PMDA) and Section 36 of the Indian Divorce rt die ) are similar to Section 24 of HMA However Section 36 of IDA

pa in the respect that the maintenance pendente lite and interim ntenance can only be claimed by the wife and not be the husband Muslim Law—There is no prov isio i n of maintenan i

and interim maintenance

The personal

Provisio isi n laws

and
{naval or air] forces 4 * *.

or isthe servant of a railway company or local authority, the Court may, if itappears to it that the summons may be most conveniently so served, send it for service on the defendant to the head of the office in whic h he is employed together with a copy to be retained by the defendant.

——-on _ soldS iers, Sail e ors or m airmen i .—Wher c e the e defendant Subs. by AO . TSS for “His Majesty's” Subs The

by Act 10 of 1927, Section 2 and Sch | for “or naval” Warne

Bg i

PART Il}

THE PROTECTION OF WOMEN FROM DOME STIC VIOLENCE ACT, 2005

is a soldier,

Summons

'[sailor] or [airman],

669

the Court shall send the

for service to his commanding

officer togeth

er with a copy to be retained by the defendant. 29. Duty of person to whom sum mons is delivered or sent for service.—(1) Where a summons is delivered or sent to any person for service under Rule 24, Rule 27 or Rule 28, such person shall be bound to serve it. if poss ible, and to return it under his signature, with the written acknowledgment of the defendant, and such Signature shal l be deemed to be evidence of service. (2) Where from any cause service is impo ssible, the summons Shall be returned to the Court with a full statement of such

Cause and of the steps taken to procure service, and such

statement shall be deemed

30.

(2)

to be evidence of non-service.

Substitution of letter for summons.—(1) The Court may, notwithstanding anything hereinbefore contained, substitute for a summons a letter signed by the Judge or such officer as he may appoint in this behal f, where the defendant is, in the opinion of the Court. of a rank entitling him to such mark of consideration. A letter substituted

under sub-rule (1) shall contain all the

particulars required to be stated in a summons, and subject

to the provisions of sub-rule respects as a summons.

(3), shall be treated

in all

(3) A letter so substituted may be sent to the defendant by post

or by a special messenger selected by the Court, or in other manner which the Court thinks fit : and, where defendant has an agent empowered to accept service, letter may be delivered or sent to such agent. Chapter VI of the Code of Criminal Procedure, Sections 61 to 90 with processes yo compel appearance, reading as follows : PROCESSES TO COMPEL APPEARANCE

any the the

dela

A.—Summons

61.

Form

of summons.—Every

summons

issued

by a Court

under this Code shall be in writing, in duplicate, signed by the presiding officer of such Court, or by such other officer as the High Court may, from time to time, by rule direct, and shall bear the seal of the Court. 62. Summons how served.—(1) Every summons shall be served by a police officer, or subject to such rules as the State Government may make in this behalf, by an officer of the Court issuing it or other public servant. i¢ ee

Ins. by Act 35 of 1934, Section

2 and

Sch.

Ins.

2 and

Sch.

by Act

10 of

1927,

Section

I.

[PART II

EN FROM DOMESTIC VIOLENCE LAWS ON PROTECTION OF WOM

(2) The summons

personally on shall, if practicable, be served

ring Or tendering to him the person summoned, by delive ons. one of the duplicates of the summ s is so served shall, if so (3) Every person on whom a summon ipt therefor on the required by the serving officer, sign a rece back of the other duplicate. bodies and societies.— 63. Service of summons on corporate be effected by Service of a Summons on a corporation may r principal serving it on the secretary, local manager or othe registered officer of the corporation, or by letter sent by ion in post, addressed to the chief officer of the corporat India, in which case the service shall be deemed to have been effected when the letter would arrive in ordinary course of post. an means “corporation” this _ section, Explanation—IiIn incorporated company or other body corporate and includes

- 64.

a society registered under the Societies Registration Act, 1860 (21 of 1860). Service when persons summoned cannot be found.—Where the person summoned cannot, by the exercise of due diligence, be found, the summons may be served by leaving one of the duplicates for him with some adult male member of his family residing with him, and the person with whom the summons is so left shall, if so required by the serving officer, sign a receipt therefor on the back of the other duplicate.

Explanation.—A servant is not a member of the family within the meaning of this section. 65.

Procedure when service cannot be effected as _ before provided.—lIf service cannot by the exercise of due diligence be effected as provided in Section 62, Section 63 or Section 64, the serving officer shall affix one of the duplicates of the summons to some conspicuous part of the house or homestead in which the person summoned ordinarily resides ; and thereupon the Court, after making such inquiries as it thinks fit, may either declare that the summons has been duly served or order fresh service in such manner

66.

Service

on

as it considers proper. Government

servant.—(1)

Where

the

person

summoned is in the active service of the Government, the Court issuing the summons shall ordinarily send it in duplicate to the head of the office in which such person is employed ; and such head shall thereupon cause the

Summons to be served in the manner provided by Section 62, and shall return it to the Court under his signature

PART |!]

THE PROTECTION OF WOMEN FROM DOMESTIC VIOLENCE ACT, 2005

671

with the endorsement required by that section. (2) Such signature shall be evidence of due serv ice. 67. Service of summons outsid e local limits—When a Court desires that a summons issued by it shall be served at any place outside its local jurisdiction, it shall ordinarily send Such summons in duplicate to a Mag istrate within whose local jurisdiction the person Summon ed resides, or is, to be there served. 68. Proof of service in such cases and when serving officer not present.—(1) When 2 suiiumnons issu ed by a Court is served outside its local jurisdiction, and in any case where the officer who has served a summons is not present at the hearing of the case, an affidavit, pur porting to be made before a Magistrate, that such Summon s has been served, and a duplicate of the summons purpor ting to be endorsed (in the manner provided by Section 62 or Section 64) by the person to whom it was delivered or ten dered or with whom it was left, shall be admissible in evidence, and the Statements made therein shall be dee med to be correct unless and until the contrary is proved. (2) The affidavit mentioned in this section may be attached to the duplicate of the summons and returned to the Court. 69. Service of summons on _ witness by _ post.—_(1) Notwithstanding anything contained in the preceding sections of this Chapter, a Court issuing a Sum mons to a witness may, in addition to and simultaneous ly with the issue of such summons, direct a copy of the sum mons to be served by registered post addressed to the witness at the place where he ordinarily resides or carries on business or personally works for gain. (2) When an acknowledgment purporting to be signed by the witness or an endorsement purporting to be made by a postal employee that the witness refused to take delivery of the summons has been received, the Court issui ng the summons may declare that the summons has been duly served.

70.

(2)

B.—Warrant of Arrest Form of warrant of arrest and duration.—(1) Every warrant of arrest issued by a Court under this Code shall be ° writing, signed by the presiding officer of such Court and shall bear the seal of the Court. Every such warrant shall remain

in force until it is cancelled

by the Court which issued it, or until it is executed. rg

Power to direct security to be taken.—(1)

Any Court issuing

M DOMESTIC VIOLENCE LAWS ON PROTECTION OF WOMEN FRO

672

[PART Il

may in its discretion a warrant for the arrest of any person that, if such person direct by endorsement on the warrant his attendance executes a bond with sufficient sureties for eafter until before the Court at a specified time and ther whom the otherwise directed by the Court, the officer to shall warrant is directed shall take such security and release such person from custody. (2) The endorsement shall state— (a) the number of sureties ; (b) the amount in which they and the person for whose arrest the warrant is issued, are to be respectively bound ; (c) the time at which he is to attend before the Court. (3) Whenever security is taken under this section, the officer to whom the warrant is directed shall forward the bond to the Court.

72.

Warrants to whom directed—(1) A warrant of arrest shall ordinarily be directed to one or more police officers ; but the Court issuing such a warrant may, if its immediate execution is necessary and no police officer is immediately available, direct it to any other person or persons, and such person or persons shall execute the same.

(2) When a warrant is directed to more officers or persons than one, it may be executed by all, or by any one or more them. 73.

of

Warrant may be directed to any person—(1) The Chief Judicial Magistrate or a Magistrate of the first class may direct a warrant to any person within his local jurisdiction for the arrest of any escaped convict, proclaimed offender or of any person who is accused of a non-bailable offence and is evading arrest.

(2) Such person shall acknowledge in writing the receipt of the warrant, and shall execute it if the person for whose arrest it was issued, is in, or enters on, any land or other property under his charge.

(3) When the person against whom such warrant is issued is arrested, he shall be made over with the warrant to the nearest police officer, who shall cause him to be taken

before a Magistrate having jurisdiction in the case, unless

74.

security is taken under Section 71. Warrant directed to police officer—A warrant directed to any police officer may also be executed by any other police officer whose name is endorsed upon the warrant by the officer to whom it is directed or endorsed .

PART I]

THE PROTECTION OF WOMEN FROM DOMESTIC VIOLENCE ACT, 2005

673

75.

Notification of substance of warrant.—The police officer or other person executing a warrant of arrest shall notif y the substance thereof to the person to be arrested, and, if so required, shall show him the warrant. 76. Person arrested to be brought before Court without delay.—The police officer or other person executing a warrant of arrest shall (subject to the provisions of Section 71 as to security) without unnecessary delay bring the person arrested before the Court before which he is required by law to produce such person : Provided that such delay shall not, in any case, exceed twenty four hours exclusive of the time necessary for the journey from the place of arrest to the Magistrate’s Court. 77. Where warrant may be executed.—A warrant of arrest may be executed at any place in India. 78. Warrant forwarded for execution outside Jurisdiction.—(1) When a warrant is to be executed outside the local jursdiction of the Court issuing it, such Court may, instead of directing the warrant to a police officer within its jurisdiction, forward it by post or otherwise to any Executive Magistrate or District Superintendent of Police or Commissioner of Police within the local limits of whose jurisdiction it is to be executed ; and the Executive Magistrate or District Superintendent or Commissioner shall endorse his name thereon, and if practicable, cause it to be executed in the manner hereinbefore provided. (2)

The

Court

issuing

a warrant

under

sub-section

(1) shall

forward, along with the warrant, the substance of the information against the person to be arrested together with such documents, if any, as may be sufficient to enable the Court acting under Section 81 to decide whether bail should or should not be granted to the person. 79.

(2)

Warrant directed to police officer for execution outside jurisdiction.—(1) When a warrant directed to a police officer is to be executed beyond the local jurisdiction of the Court issuing the same, he shall ordinarily take it for endorsement either to an Executive Magistrate or to a police officer not below the rank of an officer in charge of a police station, within the local limits of whose jurisdiction the warrant is to be executed. Such Magistrate or police officer shall endorse his name thereon and such endorsement shall be sufficient authority

to the police officer to whom

the warrant

is directed

to

execute the same, and the local police shall, if so required, assist such officer in executing such warrant.

[PART Il

NCE LAWS ON PROTECTION OF WOMEN FROM DOMESTIC VIOLE

674

there is reason to believe that the delay occasioned by obtaining the endorsement of the Magistarte or police officer within whose local jurisdiction the warrant is to be executed, will prevent such execution, the police officer to whom it is directed may execute the same without such endorsement in any place beyond the local jurisdiction of the Court which issued it. warrant Procedure on arrest of person against whom the outside issued.—When a warrant of arrest is executed district in which it was issued, the person arrested shall, unless the Court which issued the warrant is within thirty kilometres of the place of arrest or is mearer than the Executive Magistrate or District Superintendent of Police or Commissioner of Police within the local limits of whose jurisdiction the arrest was made, or unless security is taken — under Section 71, be taken before such Magistrate or District Superintendent or Commissioner.

(3) Whenever

80.

81.

Procedure by Magistrate before whom such person arrested is brought—{1) The Executive Magistrate oor District Superintendent of Police or Commissioner of Police shall, if the person arrested appears to be the person intended by the Court which issued the warrant, direct his removal in custody to such Court :

Provided that, if the offence is bailable, and such person is ready and willing to give bail to the satisfaction of such Magistrate, District Superintendent or Commissioner, or a direction has been endorsed under Section 71 on the warrant and such person is ready and willing to give the security required by such direction, the Magistrate, District Superintendent

or Commissioner

shall

take

such

bail or

security, as the case may be, and forward the bond. to the Court which issued that warrant : Provided further that if the offence is a non-bailab le one, it shall

be lawful for the Chief Judicial Magistrate (subject to the

provisions of Section 437), or the Sessions Judge , of the district in which the arrest is made on considerat ion of the information and the documents referred to in sub-section

(2) of Section 78, to release such person on bail.

(2) Nothing in this section shall be deemed to prevent a police officer from taking security under Sect ion 71. 82.

C.—Proclamation and attachment Proclamation for person abscondin g—(1) If any Court has reason to believe (whether after tak ing evidence or not) that we person against whom a war rant has been issued by it as absconded

or

is concealing

himself

so

that

such

PART Il]

THE PROTECTION OF WOMEN FROM DOMESTIC VIOLENCE ACT, 2005

675

warrant cannot be executed, such Court may publish a written proclamation requiring him to appear at a specified Place and at a specified time not less than thirty days from the date of publishing such pro clamation. (2) The proclamation shall be pub lished as follows :— (Q(a@) it shall be publicly read in some conspicuous place of the town or village in which such person ordinarily resides ;

(b) it shall be affixed to some conspi cuous part of the house or homestead in which such person ordinarily resides or to some conspicuous place of suc h town or village ; (c) a copy thereof shall be affixed to some conspicuous part of the Court-house : (i? the Court may also, if it thinks fit, direct a copy of the Proclamation to be published in a daily newspaper circulating in the place in which suc h person ordinarily resides.

(3) A

statement in writing by the Court issuin g the proclamation to the effect that the proclamation was duly published on a specified day, in the manner specified in clause (i) of sub-section (2), shall be conclusive evidence that the requirements of this section have been complied with, and that the proclamation was published on such day.

(4) Where a proclamation published under sub-section (1) is in resp ect of a person accused of an offence puni shable under Section 302, 304, 364, 367, 382, 392, 393, 394, 395, 396, 397, 398, 399, 400, 402, 436, 449, 459, or 460 of the Indian Penal Code, and such person fails to appear at the specified place and time required by the proclamation, the

Court

may,

after making

such

inquiry as it thinks

fit,

pronounce him a proclaimed offender and make a declaration to that effect. (5) The provisions of sub-sections (2) and (3) shall apply to a declaration made by the Court under sub-sect ion (4) as they apply to the proclamation published under subsection 1). 83.

Attachment of property of person absconding.—(1) The Court issuing a proclamation under Section 82 may, for reasons

to be recorded in writing, at any time after the issue of the proclamation, order the attachment of any property, movable or immovable, or both, belonging to the proclaimed

person :

Provided that where at the time of the issue of the proclamation the Court

is satisfied,

by affidavit or otherwise,

that

the

ESTIC VIOLENCE LAWS ON PROTECTION OF WOMEN FROM DOM

676

person

in relation

to whom

the proclamation

[PART Il is to be

issued,—

whole or any part of his (a) is about to dispose of the property, or or any part of his property le who the ove rem to ut abo is (b) rt,

Cou from the local jurisdiction of the ultaneously with the issue it may order the attachment sim of the proclamation. the attachment of any property (2) Such order shall authorise district in which it is belonging to such person within the attachment of any made ; and it shall authorise the hout such district property belonging to such person wit te within whose (when endorsed by the District Magistra district) such property is situate. a debt or other (3) If the property ordered to be attached is section shall movable property, the attachment under this be made— (a) by seizure ; or (b) by the appointment of a receiver ; or (). by an order in writing prohibiting the delivery of such property to the proclaimed person or to any one on his behalf ; or (d) by all or any two of such methods, as the Court thinks fit. (4 If the property ordered to be attached is immovable, the attachment under this section shall, in the case of land paying revenue to the State Government, be made through the Collector of the District in which the land is situate, and in all other cases— ae

(a) by taking possession ; or

(b) by the appointment of a receiver ; or (c) by an order in writing prohibiting the payment of rent on delivery of property to the proclaimed person or to any one on his behalf ; or (d) 4 all or any two of such methods, as the Court thinks (5

—-

If the property ordered to be attached consists of live- stock or is of a perishable nature, the Court may, if it thinks it expedient, order immediate sale thereof, and in such case the proceeds of the sale shall abide the order of the Court.

(6) The powers, duties and liabilities of a receiver appointed under this section shall be the same as those of a receiver a

under

the Code

of Civil Procedure,

1908

(5 of

PART Il]

THE PROTECTION OF WOMEN FROM DOMESTIC VIOLENCE ACT, 2005

84.

677

Claims and objections to attachment.—(1) If any claim is preferred to, or objection made to the attachment of, any property attached under Section 83, within six months from

the date of such attachment, by any person other than the proclaimed person, on the ground that the claimant or objector has an interest in such property, and that such interest is not liable to attachment under Section 83, the

claim

or objection

shall be inquired

into, and may

be

allowed or disallowed in whole or in part : Provided that any claim preferred or objection made within the period allowed by this sub-section may, in the event of the death of the claimant or objector, be continued by his legal representative.

(2) Claims or objections under sub-section (1) may be preferred or made in the Court by which the order of attachment is issued, or, if the claim or objection is in respect of property attached under an order endorsed under sub-section (2) of Section 83, in the Court of the Chief Judicial Magistrate of the district in which the attachment is made.

(3) Every such claim or objection shall be inquired into by the Court in which it is preferred or made : Provided that, if it is preferred or made in the Court of a Chief Judicial Magistrate, he may make it over for disposal to any Magistrate subordinate to him.

(4) Any person whose claim or objection has been disallowed in whole or in part by an order under sub-section (1) may, within a period of one year from the date of such order, institute a suit to establish the right which he claims in respect of the property in dispute ; but subject to the result of such suit, if any, the order shall be conclusive. 85.

Release, sale and restoration of attached property.—(1) If the proclaimed person appears within the time specified in the proclamation, the Court shall make an order releasing the property from the attachment.

(2) If the proclaimed person does not appear within the time specified in the proclamation, the property under the attachment shall be at the disposal of the State Government ; but it shall not be sold until the expiration of six months from the date of the attachment and until any claim preferred or objection made under Section 84 has been disposed of under that section, unless it is subject to speedy and natural decay, or the Court considers that the sale would

be for the benefit

of the owner

; in either of

which cases the Court may cause it to be sold whenever it thinks fit.

NCE LAWS ON PROTECTION OF WOMEN FROM DOMESTIC VIOLE

678

(3)

' 86.

[PART I

If, within two years from the date of the attachment, any person whose property is or has been at the disposal of the (2), appears sub-section under Government, State voluntarily or is apprehended and brought before the Court by whose order the property was attached, or the Court to which such Court is subordinate, and proves to the satisfaction of such Court that he; did not abscond or conceal himself for the purpose of avoiding execution of the and that he had not such netice of the warrant, proclamation as to enable him to attend within the time specified therein, such property, or, if the same has been sold, the net proceeds of the sale, or, if part only thereof has been sold, the net proceeds of the sale and the residue of the property, shall, after satisfying therefrom all costs incurred in consequence of the attachment, be delivered to him. Appeal from order rejecting application for restoration of attached property.—Any person referred to in sub- section (3) of Section 85, who is aggrieved by any refusal to deliver property or the proceeds of the sale thereof may appeal to the Court to which appeals ordinarily lie from the sentences of the first-mentioned Court. D.— Other rules regarding processes

87. Issue of warrant in lieu of, or in addition to, summons.—A Court may, in any case in which it is empowered

by this

Code to issue a summons for the appearance of any person, issue, after recording its reasons his arrest—

in writing, a warrant for

(a) if, either before the issue of such summons, or after the issue of the same but before the time fixed for his appearance, the Court sees reason to believe that he

has absconded or will not obey the summons ; or (b) if at such time he fails to appear and the summons is proved to have been duly served in time to admit of his appearing in accordance therewith and no reasonable excuse is offered for such failure. 88. Power to take bond for appearanc e.—When any person for whose appearance or arrest the offi cer presiding in any Court

is empowered

to issue

a summons

or warr

ant, is present in such Court, such offi cer may require such person to execute a bond, with or without sureties, for his appearance in such Court, or any other Court to which the case may be transferred for tria l. 89, Arrest on breach of bond for appearance.—Wh en an person who is bound by any bond taken under this Code 4

PART Il]

THE PROTECTION OF WOMEN FROM DOMESTIC VIOLENCE ACT, 2005

90.

679

appear before a Court, does not appear, the offic er presiding in such Court may issue a warrant directing that such person be arrested and produced before him. Provisions of this Chapter generally applicablé to summonses and warrants of arrest—The provisions containe d in this Chapter relating to a summons and warrant, and their issue, service and execution, shall, so far as may be, apply to every summons and every warrant of arrest issue d under this Code.

14. Counselling.—(1) The Magistrate may, at any stage of the proceedings under this Act, direct the responde nt or the aggrieved person, either singly or jointly, to undergo coun selling with any member of a service provider who possess such qualifications and experience in counselling as may be prescribed. (2) Where the Magistrate has issued any direction under sub-section (1), he shall fix the next date of hearing of the case within a period not exceeding two months. SYNOPSIS

les

2, eument

ee.

Of COMM

|

6-5.

a, och

3. Procedure to be followed by Counsellors. 4. Qual@es@ being a Cotmeelior... : ... 35 5.

-Whe=@enneciior shodidwmmat)....

1

oe

ee

679

ues

oh se blake. .... 680 ................... 680 Pe, a

...... Be .... c 682 es ts wees... 683

6. Counsellor to act under general supervision of Court or Protection Caro. . ———. — subnattt India eee ed a report to the Government of India advising it to amend

that Section 6 of the Act be dion 4eepee Act 1890, it suggestyed Ate ed so as ‘to allow the mother the custody of a minor till it alerts ptetes the age of 12 years’. In its infinite wisdom this was necessary to prevent the father from ‘ using complete submission of his wife’. : Th

Minority nia ee beth shoul oe ays down

the

nn

and Guardianship

ee

Act,

aoe ee

1956 contains

a

that custody of a child upon the age of five

arily be with the mother. Under other personal laws, thought

PART Il]

THE PROTECTION OF WOMEN FRO M DOMESTIC VIOLENCE ACT, 2005

741

minor. The word ‘welfare’ has to be taken in its widest sense, and must include the child's, moral as well as well as physical well- being, and also have regard to the ties of affection. The English and Indian decisions are repl ete with such statements that : (i) the children of tender years shou ld be committed to the custody of the mother, (ii) older bodys should be in the custody of the father, and (iii) older girls in the custody of the moth er. But these are judicial statements of general nature and there is no hard, and fast rule. As to the children of tender years it is now a firm ly established practice that mother, should have their custody since father cannot provide that maternal afection which are essential for thei r proper growth. It is also now for properpsychological development of children of tender years ma is indispensable. He Apex Court in the case of Mausami Moitra Ganguli v. Jayamnti Ganguli, AIR 2008 SC 2262, has conistently held that in deciding cases of child custody ‘the first and paramount consider ation is the welfare and interest of the child and not the rights of the parents under a statute’ The Principles of law in relation to the custody of child are well settled. It is trite that while determining the question as to which parent the care and

control of a child should be committed, the first and paramount consideration is the welfare and interest of the child and not the rights of the parties under a statute. Indubitably the provisions of law pertaining

to the custody of a child contained in either the Guardians and Ward Act. 1890 or the Hindu Minority and Guardianship Act, 1956 also held out the welfare of the child as predominant consideration. In fact no statute, on the subject, can eschew or obligerate the vitalfactor of the welfare of the minor. The question ofthe welfare of the child is again to be consideration in the background of facts and circumstances of the case. Each case to be decided on its own facts and other decided cases can hardly serve as binding precedents in such matters.. In the case of Rosy

FROM DOMESTIC VIOLENCE LAWS ON PROTECTION OF WOMEN

742

[PART I

ality is one of the 73 SC 840, held that ‘gender equ tution, and, therefore, the father by reason r a sti a con m a our of on s ple nci pri basic have a preferential right

ascribed to of dominant personality cannot be the rdianship since both fall within over the mother in the matter of gua thing for any child to grow up in the same category. It is the most natural ld gets the best protection and company of one’s mother’ and ‘a chi even in nature’. Again it was the educaton only throught the mother t ‘we make it clear that we sagacity of the Supreme Court which held tha

ons and comments made by the do not subscribe to the general observati always preferable to the High Court in favour of mother as parent to be pite the over arching father to retain custody of the child’. Des child custody it is observations of the Supreme Court in the matter of ch decides a case thus. often, the subjectivity of an individual judge whi nces of social of child custody. In the modern changed circumsta ld as human conditions, yield to the consideration of welfare of the chi ful beings so that they may grow in normal balanced manner to be use n member of the society.. The Courts are to strike a balance betwee the l welfare of the child and rights of the parents. Though the natura guardians are enumerated in Section 6 the right is not absolute and the Court has to give paramount consideration to the welfare of the minor, as stated by the Apex Court, in the case of Mohini v. Virendra, AIR 1977 SC 1359. In Tara Chand Mavar v. Basanti Dev, 1989 (1) DMC 402 the Rajasthan High Court, stated that scntimental considerations ought not to prevail over the welfare of the minor.

Under the Muslim Law the first and foremost right to have the custody of children belongs to the mother and she cannot be deprived of her right so long as she is not found guilty of misconduct. Mother has the right of custody so long as she is not disqualified. This right is known as right of hizanat and it can be enforced against the father or any other person. The mother’s right of hizanat was solely recognized in the interest of the children and in no sense it is an absolute right. Christian law per se does not have any provision for custody but the

issues are well solved by the Indian Divorce Act which is applicable to all

of the religions of the country. The Indian Divorce Act, 1869 contains provisions relating to custody of children. Section 41 of the said Act

page with the powers to make orders as to custody of children in suit or separation.-In any suit for obtaining a judicial separation the Court

may from time to time, before making its decree, make such interim

yea and may make such provision in the decree, as it deems proper hems = gsi to the custody, maintenance and education of the minor

ren, the marriage of whose parents is the subject of such suit, and may,ifit think fit, directproceedings to be taken f sA under the protection of the said Coit pod gestyn,vip

ane agrade laws of England the law pertaining to custody of child ped 5 succinctly stated as----where in any proceeding before any

pithy

i.‘pramand or upbringing of minor is in question, the Court in & that question, must regard the welfare of the minor as the first

PART Il]

THE PROTECTION OF WOMEN FROM DOMESTIC VIOLENCE ACT, 2005

743

and paramount consideration. and must not take into consideration whether from any otherpoint of view the claim of the father in respect of such custody or upbringing is Superior to that of the mother, or the claim of the mother is superior to that of the father. In relat ion to the custody or upbringing of the minor, a mother has the same right and the authority as the law allo ws to the father, and the right s and authority of mother and father are equal and are exercisable by either without the other.

Section 17 of the Guardianship 7 Wards guardianship of the minor reads as follows : 17.

Act,

1890

relating to

Matters to be considered by the Court in appointing guardian.—(1) In appointing or declaring the guardian of a minor, the Court shall, subject to the provisions of this Section, be guided by what, consistently with the law to which the minor is subject, appears in the circumstances to be for the welfare of the minor.

(2) In considering what will be for the welfare of the minor, the Court shall have regard to the age, sex and religion of the minor, the character and capacity of the proposed guardian and his nearness of kin to the minor, the wishes, if any, of a deceased parent, and any existing or previous relations of the proposed guardianwith the minor or his property. (3) If the minor is old enough to form an intelligent preference, the Court may consider that preference. (5) The Court Shall not appoint or declare any person to be a guardian against his will. Section 13 of the Hindu Minority and Guardianship Act, speaks about welfare of the minor wiih regard to guardianship and custody 13. (1) In the appointinent of declaration of any person as guardian of a Hindu minor by a Court, the welfare of the minor shall be the paramount consideration. (2) No person shall be entitled to the guardianship by virtue of the provisions of this Act or of any law relating to guardianship in marriage among Hindus, if the Court is of opininon that his or her guardianship will not be for the welfare of the minor. Where divorce in inevitable, better battles cannot be the option to settle issues of child custody and access. Custody of a child, when parents divorce, only implies as to who the child will physically reside

with., whereas both parents continue to be natural guardians. Since in India there are many religions therefore we have many personal law thus in the matter of child custody we follow the personal laws of their respective religions. Under the Hindu Law this is governed by the Hindu Minority and Guardianship Act 1956 and Guardians and

[PART Il

FROM DOMESTIC VIOLENCE LAWS ON PROTECTION OF WOMEN

744

Wards Act 1890..

d is given to Under the Muslim law the custody of a chil an as right of hizanat.. Under the Chiristi

the motehr this rights is called Act, 1869, applicable to all the Law, reference be made to Indian Divorce vided in Parsi

dren is pro religions. Under Parsi Law the custody of the chil Divorce of the children is provided in Parsi Marriage and

Law the custody Act, 1936 under Section 49. dy of the It is to be however noted that under this Section the custo ose of welfare of child to be granted is only "temporary" with the sole purp being that both the aggrieved person and the child. The predominent idea aggrieved the respondent should not be able to put any pressure on the l person and blackmail her by causing torture to the child. Menta harassment and emotional is the form of domestic violence which can also be caused to the aggrieved person in directly by causing physical torture on the child.

22. Compensation orders.—In addition to other reliefs as may be granted under this Act, the Magistrate may on an application being made by the aggrieved person, pass an order directing the respondent to pay compensation and damages for the injuries, including mental torture and emotional distress, caused by the acts of domestic violence committed by that respondent. The Magistrate respondent to pay :

COMMENTARY is empowered to pass

an

order

directing

the

(a) compensation or (b)

damages or

(c) both to the aggrieved party. It can be granted for the injuries for : () mental torture and (i) emotional distress caused to the aggrieved person on account of domestic violence by the respondent. It is not mentioned here as to how the quantum of compensation or damages will be adjudged by the Magistrate. No procedure has been laid down for the purpose. It is provided in this Section that in addition to the monetary relief, the Magist rate is empowered to pass an order directing the respondent to pay

compensation and damages for the injuries, including mental torture and Se te

distress,

caused

to the

aggrieved

person

by the

Acts of nels jen committed by the respondent. For getting such a relief ee pe is gp or damages or both the aggrieved woman should make "“C ompensation"—Meaning of. —The ; di word"compensation" is : 1. the Act is OF or process cu of maki ng i, amends ee for

PART Il]

something indemnity

THE PROTECTION OF WOMEN FROM DOMESTIC VIOLENCE ACT, 2005

745

; 2. ; 3.

something given as re paration for loss, injury , etc.; (Life Sciences & Allied Applications /Physiology) the attempt to conceal or offset one's shortcomings by the exaggerated exhibition of qualities regarded as desirable ; 5.something, typically money, awarded to some one in recognition of los s, suffering, or injury :; the action or process of awarding compensation ; 6. something that counterbalances or makes up for an undesirable or unwelcome state of Compensation means Mo ney given or received as payment or reparation for a service. los s or personal injury. Injury claims consist of personal injury, serious inj ury, professional negligenc e etc. In ordinary parlance “compe nsation” means anything given to make things equivalent : a thi ng given to or to make amends for loss, recomplance remuneration or Pay ; it need not therefore he in terms of

damages, the injury seffeed must be one recognized by law as warran ting redress, and must have actually bee n sustained by the individual. The law recognizes three major categories of damages Compensatory damages-- which are intended to restore what a plaintiff has lost as a result of a defendant's wrongful conduct, nominal damages, which consist of a small sum awarde d to a plaintiff who has suffered no substantial loss or injury but has nev ertheless experienced an invasion of rights ; and punitive damages. which are awarded not to compensate a plaintiff for injury suffered but to pen alize a defendant for particularly egregious, wrongful conduct. In specific Situations, two other forms of damages may be awarded treble and liquidat ed. In respect to compensatory damages, a defendant is liable to a plaintiff for all the natural and direct conseque nces of the defendent's wrongful Act. Remote consequences of a defe ndant's Act or omission cannot form the basis for an award of compensatory damages. Consequential damages, a type of compensatory damag es, may be

746

FROM DOMESTIC VIOLENCE LAWS ON PROTECTION OF WOMEN

[PART Il

f is not caused directly or tif ain apl by ed fer suf s los the awarded when defendant but results from the a of t duc con ul ngf wro the by immediately satory damages must

sure of compen defendant's action instead. The mea h be difficult to fix the amount wit can it gh hou alt le. gib tan and l be rea ing ing claims such as pain and suffer certainty, especially in cases involv amount of compensatory damages or emotional distress in assessing the rcise good judgment and common to be awarded, the Court must exe knowledge of economics and sense. based on general experience and delines, the Court has wide social affairs. Within these broad gui is deemed appropriate, discretion to award damages in whatever amount dencein the case. so long as the amount is supported by the evi rent injuries A plaintiff can recover damages for a number of diffe ct. The plaintiff suffered as a result of another person’s wrongful condu tly from a harm can recover for a physical impairment if it results direc considers caused by the defendant. The Court in determining damages, physical the present as well as long-range effects of the injury on the with well-being of the plaintiff. who must demonstrate the disability reasonable certainty. Compensatory damages can be awarded for mental impairment, such as a loss of memory or a reduction in intellectual capacity suffered as a result of a defendant's wrongful conduct. A plaintiff may recover compensatory damages for both present an dfuture physical pain and suffering. Compensation for future pain is permitted when there is a reasonable likelihood that the plaintiff will experience it ; the plaintiff is not permitted to recover for future pain and suffering that is speculative. Mental pain and suffering can be considered in assessing compensatory damages. Mental pain and suffering includes fright. and humiliation, anxiety, trauma, grief, emotional nervousness, indignity. Historically, a plaintiff could not recover damages for mental pain and suffering without an accompanying physical injury. Today, most jurisdictions have modified this rule. allowing recovery for mental anguish alone where the Act precipitating the anguish was wilful or intentional, or done with extreme carelessness or recklessness.

Ordinarily, mental distress brought on by sympathy for the injury of another will not warrant an award of damages, although some jurisdictions may allow recovery if the injury was caused by the willful or malicious conduct of the defendant. Compensatory damages of an economic nature may also be recovered by an injured party. A plaintiff

may recover for loss of earnings resulting from an injury. The measure of lost earnings is the amount of money that the plaintiff might reasonably have earned by working in her or his profession during the time the plaintiff was incapacitated because of the injury. In the case of a permanent disability, this amount can be determined by calculating the earnings that the injured party actually lost and multiplying that figure out tothe age of retirement-with adjustments. If the amount of earnings actually lo st cannot be determined with certainty, the plaintiffs average earnings or general qualities and qualifications for the occupation in which she or he has been employed are considered. Evidence of past

PART II]

THE PROTECTION OF WOMEN FRO M DOMESTIC VIOLENCE ACT, 2005

747

foreseeable consequence of a dis abling injury of a permanent or lingering nature. The amount of dam ages is determined by cal culating the Capacity to earn prior to the injury and the amount he or she is capable of earning after the injury, in view of his or her life expectanc y.

In other actions, expenses awa rded as part of compensatory damages may include medical, nursing, and prescription drug costs ; the costs of future medical treatment. if nec essary ; or the costs of restoring a damaged vehicle and of rentin g another vehicle while repairs are performed. Nominal damages are generally recoverable by a plaintiff who successfully establishes that he or she has suffered and injury caused by the wrongful conduct of a defendant, but cannot offer proof of a loss that can be compensated. As for damage, if is only a general nam e for the monetary loss to the owner, for different reasons, in othe r words, the genus of which destruction and deterioration are only the species. “Damage” may be the result either of purely natural caus es and action of time such, for example, as happens when a consignme nt of fruits rots for bad storage, exposure or mere delay. Whenever the amount to whcih the plaintiff is entitled to can be as certained by calc ulation or fixed by any scale or other positive data, it is said to be "liq uidated" damages or made clear. But when the amount to be recovered dep ends on all circumstances of that case and on the conduct of the part ies and is fixed by opinion or estimate, the damages are said to be unliquid ated damages. Actual damages are real, substantial and just damages in compensation for his real and actual loss or injuiry as opposed to “nominal damages" and on the other to “exemplary” or “punitive” damages.

23.

Power to grant interim and ex parte orders.—(1)

In

any proceeding before him under this Act, the Magi strate may pass such interim order as he deems just and prop er. (2) If the Magistrate is satisfied that an application prima facie discloses that the respondent is committing, or has committed an act of domestic violence or that there is a likelihood that the respondent may commit an act of domestic violence, he may grant an ex parte order on the basis of the

[PART Il

ESTIC VIOLENCE LAWS ON PROTECTION OF WOMEN FROM DOM

748

scribed, of the aggrieved pre be may as m, for h suc in t davi affi tion 20, Section 21 or, person under Section 18, Section 19, Sec t the respondent. as the case may be, Section 22 agains SYNOPSIS oe: * CORN eR... 90° Phrase—"Magistrate is satisfied’) WSs... +: ..- +. sac; @ PAppeal not reumion. pitceies > + 4. Nature of e& parte Order. | os

«eS

+

4 cum

+ pe

748

OU

ORR

pObject,

Ey

eit

+ +s

+ Se

* + sees

cumen es, 2.ocr

oi ee

748

749 749

749 be: > 4) eee « - + ~ saute Interim order$... 750 G Deems just GNG BTOpe;r. «ou om wikeeene) > +> + suimeienes > st Fe menam

K

COMMENTARY 1. Object.—There are two limbs of this provision. The Magistrate may pass "interim order" as he may deem just and proper. The second is, the Magistrate may pass an order under Sections 19, 20,21 or 22 ex parte. Such exparte order is to be passed if satisfied that the application is prime facie discloses that the respondent : (0 is continuing or (i)

has

an

committed

liklihood

that

the

Act

of domestic

respondent

may

violence

commit

or

an

there

is

Act

of

domestic violence.

Such satisfaction of prima facie needs to be on the basis of the affidavit in such form as may be prescribed. The Affidavit needs to in Form (iii) under the Rules.

2. Phrase—"Magistrate is satisfied"\—The Magistrate is empowered to pass order on basis of materials which formed basis for his satisfaction of prima facie, case. The pharase need not be incorporated in

the order. But his satisfaction

must be clear from

the order. The

important word here is "satisfied", which implies that the duty of the

Court is to give an order if satisfied that the case has been prima facie

established on the basis of an affidavit is prescribed form. The word ‘satisfaction" is a term of considerable expansiveness. The word

‘satisfied" has been understood to mean free from anxiety, doubt, perplexity, suspense or uncertainty. In this context it is synonymous with

convice the understanding" ! or "convince beyond a reasonable doubt”. In order that the Magistrate is relieved from all doubts or uncertainty and for his mind to be reasonably certain or free from doubt ;it is necessary that he should permit parties concerned to place before him sufficient material justifying initiation of the proceeding to pass the order as envisaged. The word "satisfied" has ofcourse several other technical meanings of which are of quite diffusive significance but in the context of the present provision, it must be prima facie, disclosed on the basis of the affidavit in the prescribed form that the respondent : (a)

is committing or

(b)

has committed

an act of domestic violence or

PART Il]

THE PROTECTION OF WOMEN FROM DOMESTIC VIOLENCE ACT , 2005

749

(c) there is liklihood that such act of domestic violen ce may be committed

3. Appeal not revision.—An _ order, whether interim order or €xparte order is appeable und er Section 29 of the Act and no revision lies against such order.

4. Nature of ex parte ord er.—It needs to be with regard to Protection Orders under Sectio n 18 ; Residence Orders und er Section 19 ; Monetary Reliefs under Sec tion 20 ; Custady Orders und er Section 21 22. But before Passing an ord er exparte, the Magistrate mus t be prima facie satisfied an affidavit that there is liklihood that the respon dent : (a) is committing or (b)

has committed

an act of domestic violence or

(c) there is liklihood that the res pondent may commit an act of domestic violence.

5. Interim orders.—Exparte and interim orders can be granted by the Magistrate in excercise of the powers under this Section. Nothin g is

given to the Magistrate. Now, he has to be Satisfied as to what can be ‘just and order" in the insterest of the aggrieved person. The Magistrate can pass interim order under Section 23 (1) exparte. But that ex parte, order could be passed only after service of notice as

provided under Rule 12 (3) of the pass an ex parte ad interim order provided under Section 23 (2). In passed without noticde, or service

Rules. The Magistrate, however, can without notice to the respondent, as case an ex parte, ad interim order is of notice on the respondent, on his

appearance, after granting an opportuni ty to the respondent to object the claim and on hearing the applicant and the respondent, a final interim orde

r under modification

Section of the

23 (1) is to be passed with or with or without ad-interim order. If on service of noti ce, the

respondent fails to appear, Magistrate is to Pass a final ex parte, interim order under Section 23 (1) with or withou t modification of the ad interim order. Magistrate shall take all care and caut ion in granting ad interim ex parte, order under Section 23 (2). Such relief is to be granted only if urgent orders are warranted on the facts and cir cumstances of the case and delay would defeat the purpose or where an interim orders is

absolutely necessary either to protect the aggrieve per d son or to prevent any domestic violence or to preserve the then existing posi tion.

The Apex Court in case of United Commercial Bank v. Bank of India and Others, (1981) 2 SCC 766, observed that no injunction could be

granted under Order 39, Rules 1 and 2 of the Code unless the plaintiff

750

[PART I

ESTIC VIOLENCE LAWS ON PROTECTION OF WOMEN FROM DOM

e case, meaning thereby that there establishes that he had a prime faci the parties or a serious question to was a bona fide, contention between ed to make out a prima facie, case be tried. Where, on facts, the party fail the claims of the party, no order or that triable issues arise at least qua stated on the case of United could be passed in favor of such party. As 1 SC 1426 no injunction could Commercial Bank v. Bank of India, AIR 198 they have a prima facie be granted unless the plaintiffs establish that n the

, contention betwee case, meaning thereby that there was a bona fide rt is to prima facie, parties or a serious question to be tried. The Cou order. There had to determine the matter in controversy needing urgent y. be good prima facie case in favor of the aggrieved part A prima facie case does not mean a case proved tothe hilt but a case which can be said to be established if the materials in support of which were believed. While determining whether on the evidence laid it was possible to arrive at the conclusion in question and not whether that was not only Conclusion which could be arrived at on that evidence. May be the Magistrate considering the question on affidavit may itself had arrived at a different conclusion. It is not however to substitute its own judgment for the judgment in question. A prima facie case is made out when it is such that if un contradicted and if believed it will be sufficient to prove the matterl in quention. Interim direction.

order

is to take

effect

prov

isionally,

or

until

further

While deciding prima facie case, the Magistrate is not resolving the disputed question of fact but giving interim relief to the party. The ingredients of Order 39 Rules 1 and 2 of the Code of Civil Procedure for grant of injunction do not apply in orders to be passed under Section, but Magistrate had to determine that there is a prima facie, case warranting relief. 6. Deems just and proper.—Iin different legislations the pharase useed is "just and convenient" or "just and equitable", but here in Section 23 (1) the words used are “deems just and proper". To pass such interim order as deems just and proper to the Magistrate. "Just" means quided by truth ; reason justice and fairness ; equitable ; based on right ; in

keeping with truth or fact ; true ; correct ; consistent with what is morally

right, righteousness ; precisely ; properly merited ; possible ; based on or behaving according to what is morally right and fair. : having a basis in or conforming to fact or reason ; conforming to the standard of correctness ; morally upright or good. Another definition of “just” is conforming or conformable to rectitude or justice ; not doing wrong to any ; violating no right or obligation ; upright ; righteous ; true "proper" means adapted or appropriate to the purpose or circumstances “sagt suitable ; conforming to established standards of behaviour or manner : characterized by appropriateness or Suitability ; upto a reguired or regular standard. Therre is same amount of discretion in the Magistrate to pan interim order as he deems just and proper Cut such order must

PART Il]

THE PROTECTION OF WOMEN FROM DOMESTIC VIOLENCE ACT, 2005

751

be based on the facts stated on affidavit and must relate to domestic violence, with the sole intent ion to protect and safeguard the aggrieved acted with reasons, guided by tru th and such reasonsmust be pro per and

24. Court to give copies of order free of cost.—The Magistrate shall, in all cases whe re he has passed any order

COMMENTARY Object.—The Court shall give copies of any order passed under the Act, free of costs to : (a) the parties to the application ; (b) the officer-in-charge of the police station in the jurisdiction of which the Magistrate has been approa ched and () any service provider located within the local limits of the jurisdiction of Court and also the service provided who filed the domestic incident report.

25. Duration and alteration of orders.—( 1) A protection order made under Section 18 shall be in forc e til] the aggrieved person applies for discharge. (2) If the Magistrate, on receipt of an applicat ion from the aggrieved person or the respondent, is satisfied that there is a change in the circumstances requiring alterati on, modification or revocation of any order made under this Act, he may, for

reasons to be recorded in writing pass such orde r. as he may deem appropriate. COMMENTARY Object.—The

Protection

Order made

under Section

18 of this shall

remain in force, till the aggrieved person applies for discharge. It remain enforceable at the will of the aggrieved person, till she makes aplication to the Magistrate for discharge of the said order. But Magistrate can also be given an applicationby the aggrieved person or respondent for : (a)

alteration or

(b)

modification

or

will an the teh

[PART Il

FROM DOMESTIC VIOLENCE LAWS ON PROTECTION OF WOMEN

752

(c) revocation

strate however had to be of any order made under ‘the Act. The Magi in the panines of any such order that a change efore shall have to itt veerull passing of such an order and he prin

an order. he must be record the reasons in writing on passing such tion. Under Rule 14 satisfied and record the reasons of his such satisfac that the application (17) however, The Magistrate is also to be satisfied for such an order is not vitiated by : (i) force ; or (ii) fraund ; or

(iii) corecion or

(iv) any other factors and also record his reasons for such satisfaction in writing along with passing of such an order. He may also take an undertaking or surety by the respondent, which amongst others may include that such domestic shall not be made to the aggrieved person. What other things are to be included in such undertaking or surety will be in the discretion of the Magistrate under the facts and circumstances of the case. It is however to be noted that nothing is being mentioned in this section or the Rules as what should contain in such understanding or the surety but considering the scheme and object of the legislation it is imperative that such an undertaking or surety be taken from the respondent. Under sub-section (1) the application can discharge of the order made under Section 18 only.

only

be

made

for

But under under-sub-section (2) the application can be made for alteration, modification or revocation of any order under the Act. An application under sub-section (1) can be’ made only by the aggrieved

person,

not

by the

respondent,

but

an

application

under

sub-section (2) can be made by aggrieved person or the respondent.

26.

Relief in other suits and legal proceedings.—(1)

Any relief available under Sections 18, 19, 20, 21 and 22 may also be sought in any legal proceeding, before a Civil Court,

Family person

Court or a Criminal Court, affecting the aggrieved and the respondent whether such proceeding was

initiated before or after the commencement

of this Act.

(2) Any relief referred to in sub-section (1) may be soug ht for in addition to and alongwith any other relief that the

aggrieved person may seek in such before a Civil or Criminal Court.

suit

or

]egal eerTocesaie

(3) In case any relief has been obtained by the aggr ieved

person in any proceedings other than a proceeding under this

PART Il]

THE PROTECTION OF WOMEN FRO M DOMESTIC VIOLENCE ACT, 2005

753

Act, she shall be bound to inf orm the Magistrate of the grant of such relief. SYNOPSIS SRS

2.

(COP 5I SOI Nic es e G ee . 753 Order passed by Family Court wit hout report of Protection Officer. .. . .753

3. Provision not violative of Articl e 20(1) of Constitution.

........._- 754

COMMENTARY

any relief as contained in Sectio ns 18 (Protection Order) Sectio n 19 (Residence Orders). Section 20 (monetary relief), Section 21 (cu stody orders) and Section 22 (compensatio n orders) can also be sought by the aggrieved person in such P ro cee ding. This would be apart from any other relief that the aggrieved person in such suit or proceeding. Such proceedings or suit may be under Section 498 A IPC or under Marria ge Laws or before the family Court or any other allied law or laws or Court whether Civil or criminal. The only thing is that the aggrieved person must inform the Magistrate that any other proceeding or suit has been initiated in any other Court and the relief obtained therein. 2. Order passed by Family Court wit hout report of Protection Officer.—In the case of M.Palani v. Meen akshi, AIR 2008 Mad 162, it was contended that since the Family Court had not received the report of the Protection Officer, it could not have passed the order under these provisions. This contention was rejected. Under the proviso of Section 12 (1) of the Act

it has been made clear that before passing an order by the Magistrate, he shall take into consideratio n the dome

from the protection officer. But no such prov iso enumerated under Section 26 of the said , Act. legislaturs is that even if an application is filed Family Court or a Criminal Court by the aggr ieved be passed by them after taking into consider ation

stic incident report or provision has been If the intention of the before the Civil Court. person, an order shall any domestic incident

report received from the protection officer or the serv ice provider, then the legislature would have incorporated such prov iso or pro vision as in the case

of Section 12 (1), in even Section 26 also, whic h the legislature had not done. Hence such a report is not contem plated when an order is to be passed by the Family Court or Civil Court or a Crim inal Court. The intention of legislature is, therefore, clear that reliefs under Sections 18 to 22 of the Act can also be granted in a pending proce eding

before a Family Court, but, however, for filing an independent proce eding seking reliefs under the aforesaid sections, the aggrieved party has to approach the concerned Magistrate having jurisdiction as_ per the provisions of Section 27 of the Act as stated in the case of Smt.Kumari

Behera v. State of Orissa, AIR 2010 Orissa 68.

[PART II

FROM DOMESTIC VIOLENCE LAWS ON PROTECTION OF WOMEN

754

20(1) of Constitution.—The 3. Provision not violative of Article ns 18 to 22 of pre fict a er the provisions of Sectio

reliefs granted und reliefs to do with conviction and such civil in nature and have nothing Prataprai from Civil Court and hence held in Bipin

can be sought for even Bhatt v. Union of India, AIR 2011

(NOC) 205 (Guj), such provisions 20 (1) of the constitution. cannot be said to be violative of Article

Magistrate of 27. Jurisdiction.—(1) The Court of Judicial as the case may the first class or the Metropolitan Magistrate,

be, within the local limits of which—

(a) the person aggrieved permanently or temporarily resides or carries on business or is employed; or (b) the respondent resides or carries on business or is employed; or (c) the cause of action has arisen, a protection

order

and other orders under this Act and to try offences this Act.

under

shall

be the competent

Court

to grant

(2) Any order made under this Act shall be enforceable

throughout India. SYNOPSIS

See. 2: 754

ee.

oe...

2 Gen...

754

a he.

=

ae

\

i.

COMMENTARY 1. Scheme.—This provision relates to jurisdiction matters. The application can be filed before :

(a) Judicial Magistrate of First Class or

(b) The Metropolitan Magistrate. as the case may be with the local limits of which

:

() The aggrieved person permanently or temporarily resides ; or (i) The aggrieved person carries on her business or (ii) The aggrieved person is employed or (iv) The respondent resides or (vl) The respondent carries on his business or

(vi) The respondent is employed or (vii) other

The cause of action has arisen.

Such Courts shall be competent to grant a protection order and orders

under

this

Act

and

try

offences

important that any order passed by such throughout India. 2.

Cause

of action.—A

cause

under

Courts

of action,

this

Act.

It is

shall be enforceable

in law,

is'a

set of facts

PART II]

THE PROTECTION OF WOMEN FRO M DOMESTIC VIOLENCE ACT, 2005

755

sufficient to justify a right to sue or the enforcement of a right against another party. The term als o refers to the legal theory upon which a nothing the party to whom it is addressed of an allege d fault which resulted in damages from whc ih it originates. To pursue a cause of action, a plaintiff pleads or alleges fac ts in a complant, the pleading that initiates a lawsuit. A cause of action

The fact or combination of facts that gives a person the right to seek judicial redress or relief against another. Also the legal theory for ming the basis of a lawsuit. The cause of action is the hea rt of the complaint. which is the pleading that initiates a lawsuit Without an adequately stated cau se of action the plaintiffs case can be dis missed at the outset it is not sufficie nt merely to state that certain events occurred that entitle the plaintiff to relief. All the elements of each cau se of action must be detailed in the complaint. The claims must be Sup ported by the facts, the law, and a conclusion that flows from the applic ation of the law to those facts. The cause of action is often stated in the form of syllogism, a form of deductive reasoning. The facts or cir cumstances that entitle a person to seek judicial relief may create more tha n one causel of action. A cause of action can arise from an Act, a failure to perform a legal obligation, a breach of duty, or a viol ation or invasion of right. The importance of the act, failure, breach, or violation lies in its legal effect or characterization and in hgow the facts and circumstances, considered as a whole, relate to applicable law. A set of facts may have no legal effect in one situation, whereas the same or simi lar facts may have significant legal implication in another situation. The cause of action is the basis of a lawsuit founded on legal grounds and alleged facts which, if proved, would constitute all the "elements’ required by statute.

Order II Rule 3 of the Code of Civil Procedur e deals with joinder of causes of Act, reading as follows : 3. (1) Save as otherwise provided, a plain tiff may unite in the Same suit several causes of action against the same defending or the same defendants jointly ; and any plaintiffs having causes of action in which they are join tly interested against the same defendant or the same defendan ts jointly may unite such causes of action in the same suit.

(2)

Where

causes

of action

are united,

the jurisdiction

of the

Court as regards the suit shall depend on the amount value of the aggregate subject-matters at the date instituting the suit.

or of

(PART Il

M DOMESTIC VIOLENCE LAWS ON PROTECTION OF WOMEN FRO

756 28.

Procedure.—(1)

Save

provided in this

as otherwise

12, 18, 19, 20, 21. 22 and Act, all proceedings under Sections shall be governed by the 93 and offences under Section 31 cedure, 1973 (2 of 1974). Pro al min Cri of e Cod the of s ion provis prevent the Court from (2) Nothing in sub-section (1) shall

al of an application laying down its own procedure for dispos (2) of Section 23. under Section 12 or under sub-section

Court of 29. Appeal.—There shall lie an appeal to the h the order Session within thirty days from the date on whic on or the made by the Magistrate is served on the aggrieved pers respondent, as the case may be, whichever is later. COMMENTARY Scope and ambit.—The word "order" used in this Section connotes all types of orders passed by the Magistrate under the Act. including

orders granting interim maintenance under sub section (1) of Section 23

as well as ex-parte, interim maintenance granted under sub-section (2) of

Section 23. Since the word "order" is not qualified by any suffix or prefix in Section 29, the legislative intent is that each and every type of order, irrespective of its description and nature passed by a Magistrate has been made apealable to the Court of Sessions Judge under Section 29, therefore the petition under Section 482 Cr PC was held not maintainable. The appellate Court however will interfere with the excercise of discretion by the Magistrate, if it is found that discretion was excercised arbitrarily, capriciously, perversely or if it is found that the

Court had ignored settled principles of law regulating grant or refusal of interim relief. The procedural order not determining or deciding the rights or liabilities of the parties are not appealable.

CHAPTER V MISCELLANEOUS 30. Protection Officers and members of service ae to be public servants.—The Protection Officer and a ae service providers, while acting or purporting to act sede

nce of any of the provisions of this Act or any rules or

rs made thereunder shall be deemed to be public servants ; within t 21 of the Indian Penal Code (45 ion of 186 a meaning of Sect SYNOPSIS oe

a Cr ee 2. Public Servant as defined in the Penal Code.

|

756

......

757

COMMENTARY 1.

sii Scope.—It

is provided

under

this

Section

that

the

protection

«= PART Il}

THE PROTECTION OF WOMEN FRO M DOMESTIC VIOLENCE ACT, 2005

757

Officers and members of ser vice providers, while acting or purporting to Act in pursuance of any of the provisions of this Act or any rules or orders made there under sha ll be deemed to be public ser vants. 2.

Public Servant as define d in the Penal Code.—

21.

"Public servant’—The person falling under following namely :—

Words" public servant" don ote a any of the descriptions her einafter

Second.—Every Commissioned Officer in the Military, Naval or Air Forces of India : Third.—Every Judge including any person empowered by law to discharge, whether by himself or as a member of any body of persons, any adjudicatory fun ctions : Fourth.—Every officer of a Court of Justice (including a liquidator, receiver or commissioner) whose duty it is, as such officer, to investigate or report on any matter of law or fact, or to make

authenticate, or keep any docume nt, or to take charge or dispose of any property, or to execute any judicial pro cess, or to administer any oat h, or to interpret, or to p reserve order in the Court, and every person specially authorized by a Court of Justice to perform any of such duties ; Fifth—Every juryman, assessor, or member of a p anchayat assisting a Court justice or public servant ; Sixth.—Every arbitrator or other pers on to whom any cause or matter has been referred for decision or report by any Court of Justice, or aby any other competent public authority ; Seventh.—Every person who holds any office by virtue of which he is empowered to place or keep any parson in confinement ; Eighth.—Every officer of the Governmen t whose duty it is, as such officer, to prevent offences, to give information of offences, to bring offenders to justice, or to protect the public health, safety or convenience : Ninth.—Every officer whose duty it is as such officer, to take, receive, keep or expend any property on behalf of the

Government, or to make any survey, assessment or contract on behalf of the Government, or to execute any revenue-process, or to investigate, or to repor t, on any matter affecting the pecuniary interests of the Gove rnment), or to make, authenticate or keep any document relating to the pecuniary interests of the Government. or to prev ent the infraction of any law for the protection of the pecuniar y interests of the Government : Tenth.—Every officer whose duty it is, as such officer, to take.

[PART Il

FROM DOMESTIC VIOLENCE LAWS ON PROTECTION OF WOMEN

758

y or receive, keep or expend any property, to make any surve

assessment

lar or to levy any rate or tax for any secu

or to make, common purpose of any village, town or district,

ning of authenticate or keep any document for the ascertai the rights of the people of any village, town or district ;

e of which Eleventh.—Every person who holds any office in virtu

an he is empowered to prepare, publish, maintain or revise an electoral roll or to conduct an election or part of election ; Twelfth—Every person— or (a) in the service or opay of the Government remunerated by fees or commission for the performance of any public duty by the Government ; (b) in the service or pay of a local authority, a corporation established by or under a Central, Provincial or State Act or a Government company as defined in Section 617 of the Companies Act, 1956 (1 of 1956). Illustration A Municipal Commissioner is a public servant. Explanation 1.—Persons falling under any of the above descriptions are public servants, whether appointed by the Government or not.

Explanation 2.—Wherever the words " public servant" occur, they shall be understood of every person who is in actual possession of the situation of a public servant, whatever legal defect there may be in his right to hold that situation. Explanation

3.—The

word

"election"

denotes

an

election

for the

purpose of selecting members of any legislative, municipal or other public authority, of vhatever character, the method of selection to which is by, or under, any law prescribed as by election.

31.

Penalty

for

breach

of

protection

order

by

respondent.—(1) A breach of protection order, or of an interim protection order, by the respondent shall be an offence under

this Act and shall be punishable with imprisonment of either description for a term which may extend to one year, or with fine which may extend to twenty thousand rupees, or with both. (2) The offence under sub-section (1) shall as far as practicable be tried by the Magistrate who has passed the order, the breach of which has been alleged to have been caused by the accused.

(3) While framing charges under sub-section (1), the Magistrates may also frame charges under Section 498-A of the Indian Penal Code (45 of 1860) or any other provision of that

Code or the Dowry Prohibition Act, 1961

(28 of 1961), as the

PART Il]

THE PROTECTION OF WOMEN FROM DOMESTIC VIOLENCE ACT, 2005

759

case may be, if the facts disclo se the commission of an offenc e under those provisions. , SYNOPSIS we RRsie beta te. saa .te 759 Baers of SATO S Leet s. .. om ae. ee 759 3. Provisions relating to framing of Cesk). 1:SeAE obiR c.iw s ane 759 COMMENTARY NE

Penal Code or any any of the provisio ns of the said Code or the Dowry prohibition Act, as the case may be, if the facts and circumstances so disclose that an offence was also cam mitted under such provisions of law. 2.

Extracts of Section 498-A IPC.

498-A. Husband or cruelty.—Whoever, being woman, subjects such imprisonment for a term be liable to fine.

relative of husband of a woman subjecting her to the husband or the relative of the husband of a woman to cruelty shall be punished with which may extend to three years and shall also

Explanation.—For the purposes of this secti on, "cruelty" means— (a) any wilful conduct which is of such a natu re as is likely to drive the woman to commit suicide or to cause grav e injury or danger to life, limb or health (whether mental or physcal) of the woman ; or (b) harassment of the woman where such hara ssment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on acco unt of failure by her or

any person related to her to meet such demand. 3. Provisions relating to framing of charges.—The

purpose of framing a charge is to give intimation to the accused of clear, unambiguous and precise notice of the nature of accusation that the accused is called upon to meet in the course of a trial. (See V.C.Shukla v. State Through C.B.I.,

1980 Supplementary SCC

92). A prima facie, case must be made out before a charge can be framed .

Basically, there are three pairs of Sections in the Code of Criminal Procedure, 1973. Those are Section 227 and 228 which relating to sessions trial ; Section 239 and 240 relatable to trial of warrant cases : and Section 245 (1) and (2) qua trial of summons cases. In the case of Satish Mehra v. Delhi Administration and Another (1996) 9 SCC 766. a two it was observed that if the accused succeeds in producting any

760

FROM DOMESTIC VIOLENCE LAWS ON PROTECTION OF WOMEN

[PART Il

Or framing of charge reliable material at the stage of taking cognizance ty of the case, it is bili aina sust very hich might fatally affect even the be looked into by the anata that no such material should iehiet the object Court at that stage. It was held that ns

of providing

an

as envisaged in opportunity to the accused of making submissio , 1973 is to enable the Section 227 of the Code of Criminal Procedure to conduct the trial. If Court to decide whether it is necessary to pro ceed that early stage would the materials produced by the accused even at saying that such clinch the issue, why should the Court shautl it out more time in the documents need be produced only after wasting a lot e is nothing name of trial proceedings. It was further observede that ther

uments in the Code which shrinks the scope of such audiendce to oral arg

er even and therefore, the trial Court would be within its power to consid material which the accused may produce at the stage contemplated in Section 227 of the Code. Section 226 of the Code obliges the prosecution to describe the charge brought against the accused and to state by what evidence the guilt of the accused would be proved. The Next provisions enjoins on the Session Judge to decide whether there is sufficient ground lto proceed against the accused. In so deciding the Judge has to consider (1) the record of the case and (2) Ithe documents produced therewith. He has then to hear the submissions of the accused as well as the prosecution on the limited question whether there is sufficient ground to proceed. The object of providing such an opportunity as is envisaged in Section 227 of the code is to enable the Court to decide whether it is necessary to proceed to conduct the trial. If the case ends there it gains a lot of time of the Court land saves much human efforts and cost. If the materials produced by the accused even at that early stage would clinch

Ithe issue, why should the Court shut it out saying that such documents need be produced only after wasting a lot more time in the name of trial

proceedings. Similar situation arise under Section 239 of the Code (which deals with trial of warrant cases] on police report). In that situation the Magistrate has to afford the prosecution and the documents sent therewith. At these two stages the Code enjoins on the Court to give audience to the accused for deciding whether it is necessary to proceed to the nexlt State. It is a matter of exercise of judicial mind. There is nothingin the code which shrinks the scope of such audience to oral arguments. If the accused succeeds in producing any reliable material at

that stage which might fatally affect event the very sustainability of the ai Pe is unjust to suggest that no such material shall be looked into by

previ“al at that stage. Here the "ground" may be any valid ground g insufficiency of evidence to pro ve charge.

The Apex Court in the case of State of Maharashtra v. Som Nath Thapa, (1996) 4 SCC 659 observed that at the stage of framing charge the

Court has to apply its mind to the question whether or not there is any

ground for presuming the commission of the offence by the accused. As framing of charge affects a person's liberty substantially, need for proper ' consideration of material warranting such order was emphas ized. In the

PART Il]

THE PROTECTION OF WOMEN FRO M DOMESTIC VIOLENCE ACT, 2005

761

case of the V.C. Shukla v. State Through C.B.I., 1980 Supp SCC 92, it was stated that’ the purpose of fra ming a charge is to give intima tion to the

What should be contents of the charge are stated in Section 21] of the Code of Criminal Procedure, reading as follows : "Contents of charge.—(1) Every charge under this Code shal] State the offence with which the accused is charged. (2) If the law whicdh creates the offence gives it any specific name, the offence may be descri bed in the charge by that name only.

(3) If the law which creates the offence does not give it any specific name, so much of the definiti on of the offence must be stated as to give the accused noti ce of the matter with which he is charged. (4) The law and section of the law agai nst which the offence is Said

to have

been

charge.

committed

Shall be mentioned

in the

(5) The fact that the charge is mad e is equivalent to a Statement that every legal condition required by law to constitute the offence charged was fulfilled in the particular case. (6) The charge shall be written in the lang uage of the Court. (7) If the accused, having been previous ly convicted of any offence, is liable, by reason of such previous conviction, to enhanced punishment, or to punishment, of a different kind, for a subsequent offence, and it is intended t prove such previous conviction for the purpose of affecting the punishment which the Court may think fit to award for the subsequent offence, that fact date and place of the previous conviction shall be stated in the charge ; and if such statement has been omitted, the Court may add it at any time before esentence is passed." The effect of error in framing the charge is state in Section 215 of the Code of Criminal Procedure reading as follows : “Effect of errors.—No error in Stating either the offen hce or the particulars required to be stated in the charge, and no omission to state the offence or those particulars, shall be regarded at any stage of the case as material, unless the accused was in fact misled by such error or omission. and it has occasioned a failure of justice." The effect of omission to frame charge etc. are stated in Section 464

of the Code of Criminal Procedure, reading as follows : "464.

Effect of omission

to frame,

or absence

of, or error in,

762

M DOMESTIC VIOLENCE LAWS ON PROTECTION OF WOMEN FRO

charge.—(1)

No finding sentence

[PART Il

or order by a Court

of

invalid merely on competent jurisdiction shall be deemed or on the ground of the ground that no charge was framed rge including any error, omission or irregularity in the cha pinion of the any misjoinder of charges, unless, in the o justice Court of appeal, confirmation or revision, a failure of

has in fact been occasioned thereby. is of opinion (2) If the Court of appeal, confirmation or revision

that a failure of justice has in fact been occasioned, may—

it

(a) in the case of an omission to frame a charge, order that a charge be framed and that the trial be recommenced from the point immediately after the framing of the chargte ; (b) in the case of an error, omission or irregularity in the charge, direct a new trial to be had upon a charge framed in whatever manner it thinks fit :

Provided that if the Court is of opinion that the facts of the case are such that no valid charge could be preferred against the accused in respect of the facts proved. it shall quash the conviction ;" In the case of Willie (William) Staney v. State of Madhya Pradesh reported in (1955) 2 SCR 1140, it was observed that—"We see no reason for straining at the meaning of these plain and emphatic provisions unless ritual and form are to be regarded as of the essence in criminal trials. We are unable to find any magic or charm in the ritual of a charge.

It is the substance of these provisions that count and not their outward form. To hold otherwise is only to provide avenues of escape for the guilty and afford no protection to the innocent. In the case of State of Andhra Pradesh v. Cheemalapati Ganeswara Rao, AIR 1963 SC 1850, it was

Stated that the object in saying what has the pffences alleged to which they will have to answer and nothing more. Similar was the view in the case of Rawalpenta Venkaluand another v. The State of Hyderabad, reported in AIR 1956 SC 171. IN the case of K. Prema S. Rao and another v. Yadla Srinivasa Rao, (2003) 1 SCC 217, the Apex Court held that mere omission or defect in framing of charge does not disable the criminal Court from convicting the accused for the offence which is found to have

been proved on the evidence on record. The provisions of Section 221, Cr P.C. takes care of such a situation and Safeguards the powers of the

criminal Court to convict an accused for an offence with which he is not charged although on facts found in evidence he could have been charged oc pe offence. In the case of Dalbir Singh v. State of U.P., (2004) 5 , it was held that in view of Section 464, it is possible to convict the accused for an offence for which no charge was framed unless the Court

is of the opinion

that the failure of justice will occasion

in the

process. In K. Prema S. Rao and another v. Tadla Srinivasa Rao. (2003) 1

PART Il]

THE PROTECTION OF WOMEN FROM DOM ESTIC VIOLENCE ACT, 2005

763

SCC 217 the Apex Court held that though the charge specifically under Section 306 IPC was not framed but all the ingredients constituting the offence were mentioned in the statement of charges and that mer e

offence for which no charge was framed unless the Court is of the opinion that the failure of justice will occasion in the process and the Court had to examine whether the accused was awa re of the basic ingredients of the offence for which he is being convicte d and whether the main facts sought to be establish against him were explained to him clearly and whether he got a fair chance to defend himself In Annareddy Sambasiva Reddy and others v. State of Andhra Pra desh ; (2009) 12 SCC 546 the Supreme Court dealt with the Same question and held that if the ingredients of the Section charged with are obvious and implicit, conviction under such head can be Sus tained irrespective of the fact whether the said section has been mentio ned or not in the charge. The basic question is one of prejudice. Section 227 and 228 ; Sections 239 and 240 and Section 245 of the Code of Criminal Procedure relating framing of charges, read as follows : 227. Discharge.—If, upon consideration of the recor d of the case and the documents submitted therewith, and after hearing the submissions of the accused and the prosecut ion in this behalf, the Judge considers that there is not sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doning. 228. Framing of charge.—(1) If, after such consi deration and hearing as aforesaid, the judge is of opinion that there is ground for presuming that the accused has committe d an offence which— (a) is not exclusively triable by the Court of Sessi on, he may, frame a charge against the accused and, by order , transfer the case for trial to the Chief Judicial Magistrate, and thereupon the Chief Judicial Magistrate shall try the offence in accordance with the procedure for the trial of warrant-cases instituted on a police report ; (b) is exclusively triable by the Court, he shall frame in writing a charge against the accused. (2) Where the Judge frames any charge under clause (b) of subsection (1), the charge shall be read and explained to the accused and the accused shall be asked whether he pleads guilty of the offence charged or claims to be tried. 239. When accused shall be discharged.—If, upon considering

[PART Il

FROM DOMESTIC VIOLENCE LAWS ON PROTECTION OF WOMEN

764

nts sent with it under the police report and the docume ation, if any, of the Section 173 and making such examin ary and after giving accused as the Magistrate thinks necess the accused an opportunity of being

the prosecution and rge against the heard, the Magistrate considers the cha the accused, accused to be groundless, he shall discharge and record his reasons for so doing. deration, 240. Framing of charge—(1) If, upon such consi is of examination, if any, and hearing, the Magistrate ed opinion that there is ground for presuming that the accus has committed an offence triable under this Chapter, which such Magistrate is competent to try and which, in his opinion, could be adequately punished by him, he shall frame in writing a charge against the accused.

(2) The charge shall then be read and explained to the accused, and he shall be asked whether he pleads guilty of the offence charged or claims to be tried. 245. When accused shall be discharged.—(1) If, upon taking all the evidence referred to in Section 244, the Magistrate considers, for reasons to be recorded, that no case if out which, made been has accused againstthe unrebutted, would warrnt his conviction, the Magistrate shall discharge him.

(2) Nothing in this Section shall be deemed to prevent a Magistrate from discharging the accused at any previous stage of the case if, for reasons to be recorded by such Magistrate, he considers the charge to be groundless. This form is prescribed under the Code of Criminal Procedure. Form No. 32

CHARGES (See Sections 211, 212 and 213) I. Charges With One Head.—

(1)(a)

I, (name and office of Magistrate, etc.), hereby charge you

(name of accused person) as follows :— (b) On Section 121, that you, on or about the day of, at, waged war against the Government of India and thereby committed an offence punishable under Section 121 of the Indian Penal Code, and within the cognizance of this Court.

(c) And I hereby direct that you be this Court on the said charge. | [to be substituted for(b)] :—

(Signature and Seal of the Magistrate)

(2) On Section 124. ' That you, on or about the day of, at, with the aie of inducting the president o f India [or, as the case may be, the overnor), and thereby committed

an offencepunishable

under Section

PART Il]

THE PROTECTION OF WOMEN FRO M DOMESTIC VIOLENCE ACT, 2005

765

124 of the Indian Penal Code, and within the cognizance of this Court. (3) On Section 161. That you, being a public servan t in the and thereby committed an off ence punishable under Sectio n Indian Penal Code, and within the cognizance of this Court.

161 of the

(S) That you, on or about the day of, at, in the course of the trial o f before, stated in evidence that --which statement you either kne w or believed to be false, or did not bel ieve to be true, and thereby com mitted an offence punishable under Sectio n 193(On Section 193.) of the Ind ian Penal Code, and within the cogniz ance of this Court. (6) That you, on or about the day of, at, committed culpable homicide not amounting to murder , Causing the death of, and thereb y (7)

Suicide

That you, on or about the day of, at, abetted the commission of by A.B..

a

person

in

a state of intoxication, and thereb y an offence punishable under Sectio n 306 (On Section 306.) of the Indian Penal Code, and within the cog committed

nizance of this Court.

(8) That you, on or about the day of, at voluntarily caused grievous hurt to, and thereby committed an offe nce punishable under Section 325 (On Section 325.) of the Indian Penal Code, and within the cognizance of this Court.

(9) That you, on or about the day of, at, robbed (state of name), and thereby committed an offence punishable under Section 392 (On Section 392.) of the Indian Penal Code, and within the cognizance of this Court. (10) That you, on or about the day of ; at, committed dacoity, an offence punishable under Section 395 of the India Penal Code, and within the cognizance of this Court. II. Charges With Two Or More Heads.—

| 0)EES , (Name and office of Magistrate, etc.), here by charge you (name of accused person) as follows :— (b)

On

Section

241.

First—That

you,

on

or about

the day of, at,

knowing a coin to be counterfeit, delivered the same to another person, by name, A.B., as genuine, and thereby committed an offence puni shable

under Section 241 of the Indian Penal Code, and within the cognizance of the Court of Session.

Secondly—That you, on or about the of day of ; at, knowing a coin to be counterfeit attempted to induce another person, by name, A.B., to

FROM DOMESTIC VIOLENCE LAWS ON PROTECTION OF WOMEN

766

[PART II

committed an offence punishable y reb the and e, uin gen as it e eiv rec Code, and within the congnizance under, Section 241 of the Indian penal

of the the Court of Session. ed by the said Court on the (c) And I hereby direct that you be tri said charge. (Signature and seal of the Magistrate)

(To be substituted for (b)] :— on or about the. (2) On Section and 302 and 304 First-That you,

3 thereby day of, at, committed murder by causing the death of and

Indian 3 Penal committed an offence punishable under Section 302 of the Code, and within the cognizance of the Court of Session. Secondly—That you, on or about the day of, at, by causing the death of, committed culpable homicide not amounting to murder, and thereby committed an offence punishable under, Section 304 of the Indian Penal Code, and within the cognizance of the Court of Session. (3) On Sections 379 an 362. First-That you, on or about the day of. at, committed theft, and thereby committed an offence punishable under Section 379 of the Indian Penal Code, and withhin the cognizance of the Court of Session. Secondly-That you, on or about the day of, at, committed theft, having made preparation for causing death to a person in order to the committing of such theft, and thereby committed an offence punishable under Section 382 of the Indian Penal Code, and within the cognizance of the Court of Session.

Thirdly-That you, on or about the day of, at, committed theft, having made p reparationfor causing restraint to a effecting of your escape after the committing of committed an offence punishable under Section Code, and within the cognizance of the Court of

person in order to the such theft, and thereby 382 of the Indian penal Session.

Fourthly-That you, on or about the day of, at, committed theft, having made preparation for causing restraint to a person in order to the effecting of your escape after the committing of such theft, and thereby committed an offence punishable under Section 382 of the India P enal

Code, and within the cognizance of the Court of Session. (4) Alernative charge on sectom 193. That you, on or about the day of, at, in the course of the inquiry into, before, stated in evidence that"

and that you, on or about the day of at in the course of the trial of before stated in the evidence that one of which statements you either knew or believed to be false, or did not believe to be true. and thereby committ ed

an offence punishable under Section 193 of the Indian Penal Code, and within the cognizance of the Court of Session. (In cases tried by Magistrates substitute "within m y cognizance"," for "

of the Court of Session" ) III.

g

r "within the cognizance

Charges For Theft After Previous Conviction. (name and office of Magistrate, etc.), hereby charge you (name

PART II]

THE PROTECTION OF WOMEN FROM DOMESTIC VIOLENCE ACT, 2005

of acused person) as follows :— That you, on or about the day of at committed

767

theft, and thereby

as the case may be). And you, the said (name of acc used), stand further charged tha t you, before the committing of the said offence, that is to say, on the day

And I hereby direct that you be trie d, etc.

32.

Cognizance

and

proof.—(1)

Notwit

hstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), the offence under sub-se ction (1) of Section 3] shall

be cognizable and non-bailable. (2) Upon the sole testimony of the aggrieved person,

Court

may

conclude

that an

offence under

sub-section

Section 31 has been committed by the acc used.

the

(1) of

SYNOPSIS he cs

is

sy

ee

767

COMMENTARY

1. Scheme.—tThe offences under Section 3] (1) shall be cognizable and non-bailable. The sobtestimony of the aggr ieved person is the enough proo

f that the o ffence under Section 31 was committe d. The proof of the offence unde

r sole testimony of the aggrieved has been subj ect of great controversy, but under Section 376 IPC too convicti on can be based on the sole testimony of the prosecutrix. It is the wisd om of legislature as to why and how they brought the offence under Sect ion 31 of this Zct, at

par with the offence of rape under Section 376 rc:

2. Sole testimony.—In the case of Bhanwar Singh v. State of Rajasthan, 1998 (3) Crimes 515 (Raj.) the prosecutrix aged about 35

years, a widow, was the victim of sexual assault by two perso ns. She was serving on [Vth class employee in the Municipality Office. The accused persons were stated to be drivers by profession and used to drive their jeeps in roads from one place to another. It was their usual practice to carry passengers. The prosecutrix having completed her office duty, had some purchasing in the market and at 8 p.m. reached the bus stand.

There

were

about

ten

persons

waiting

for

the

bus

for

different

destinations. The A-1 brought his jeep at the bus stand and gave calls to

FROM DOMESTIC VIOLENCE LAWS ON PROTECTION OF WOMEN

768

[PART Il

a Kathla. The prosecutrix boarded the passengers going to village Gud jeep, the accused fore the passengers could have boarded the

jeep se ire

ese

with fast speed. After run of 100 or 200

speed when A-2 got in. The paces, the accused lowered down the was told that there was prosecutrix tried to get down from the jeep but ahead. ge, at some distance same more passengers going to the same villa

d to get down from But when no passenger was seen ahead, she again trie

other and A-1 the jeep but was not allowed to do so and A-2 caught hold

ons stopped increased the speed of the jeep. Thereafter, the accused pers they had the vehicle at a desolate place and raped her one by one. When tor finished the sex acts with the lady, they saw the light of the trac coming from the other side. They left the place in the vehicle leaving the prosecutrix. She could reach home at night and told her woe to her deaf and blind mother-in-law. There was no other male member in her house. In the morning she went to the police station but was asked by the constables at the gate of the police station to come with some male member. He then was accompanied to the police station, by the nephew of her mother-in-law, who could be available only in the evening. After she reported the matter, the investigation started. Both the accused persons were convicted and sentenced by the Trial Court. Relying on the decisions like Koja Ram v. State of Rajasthan,

1995 (2) Crimes 359 (Raj.); V.R. Murthy v. State, 1995 (2) Crimes 365 (Cal.); Kishniya v. State of Rajasthan, 1988 (1) Crimes 278 (Raj.); Malik Singh v. State, 1988 RCC 179 (Raj.); Prabhu Lal v. Uttam Chand, 1988 Cri LJ (Raj.) 561; Sajjan Singh v. State, 1991 R.C.C. 159 (Raj.); Goma Tuka Ram v. State of Maharashtra,

of Haryana,

Pradesh, accused

1995

1992

1991 (1) Crimes 783 (Bom.); Daler Singh v. State

Cri LJ 614

(1) Crimes

persons,

880

(P&H)

and

Bharat v. State of Madhya

(M.P.), it was

that the absence

of evidence

urged on behalf of the in corroboration

to the

sole testimony of the prosecutrix material contradictions and inconsistencies in her statement absence of injuries in her person and the inordinate delay in lodging the FIR in the case, make the prosecution case against the accused persons highly doubtful and the benefit of doubt should be given to the accused. It was held that every case is required to be decided on its own merits after appreciating the evidence

in the light of the facts and circumstances attending upon the light of the

facts and circumstances attending upon the commission of the offence in that case. Therefore, rules of appreciation of evidence in criminal cases cannot be laid down in a straight jacket so as to be made applicable in all cases. Each case has to be decided on its own merits or demerits. In one case the testimony of dozens of witnesses may not inspire confidence

in the Court, in another single testimony may be found of sterling worth and hence sufficient to make the basis of conviction of the accused. In

one case of sexual assault on a girl or woman absence of injuries on person may be fatal to the success of the prosecution case, in anotherher it may no be so. In some cases delay may be fatal, in other there may be

PART Il]

THE PROTECTION OF WOMEN FROM DOMESTIC VIOLENCE ACT, 2005

769

evidence may be laid down for uni versal application in cases which are to be decided on appreciation of dir ect circumstantia] evidence, bro ught on the record of the case.

such an accusation against a man. Once such a accusation is made by her then it is to be appreciated that she is a victim of an offence and, therefore, falls in the category of an inju red witness and not in that of an accomplice. Her testimony, is therefor e, to be examined at the altar of probability, reasonableness and confid ence arising satisfaction. If her lone testimony inspires confidence it should be accepted and the guilty convicted. Corroboration to her testim ony save that which should naturally come from the setting of fact s, natural and normal human conduct of the parties involved, from the way of life they are accustomed to Dive and other such facts and circumsta nces which should naturally attend upon the commission of the offence in a particular case, is not necessary for basing the conviction of the acc used. The various cases cited, lay down no diffe rent proposition of law. Those were decided on the basis of the facts and circumstances obtaining there in and in the light of presence or absence of relevant facts having a bearing on the guilt or innocence of the accused therein. In the case of Bhanwar Singh (supra), the factual matrix was not disputed. What was disputed was that a false accusation had been made or at any rate, the delay caused in lodging the FIR and some inco nsistencies in the Statement

of the

prosecutrix

rendering

the

entire

prosecution

case

doubtful. Regarding false prosecution, the defence was totally lacking in it and hence rejected. It did not appeal to reasons that prosecutrix, a widow having two children would stake her own honour and respect for the sake of a person who was distantly related to her sister's husband in

another village. Her False implication by the prosecutrix was total ly ruled

out. The prosecutrix was doing the job and there nothing unusual for her to go in the morning and came back in the evening, particularly when her

own kiddies and blind and deaf mother-in-law were living in the villa ge

and the village was connected by road and vehicles on that road were available. Her reaching the bus stand in the evening to return to her village was also not an abnormal or unusual conduct on her part. The accused persons were drivers of the jeeps on that route. She had

770

M DOMESTIC VIOLENCE LAWS ON PROTECTION OF WOMEN FRO

[PART II

too. The d persons on earlier occasions travelled in the jeeps of the accuse plying sons to know the accused persons as

prosecutrix thus, had rea village. The accused persons too their vehicles on the route going to her from and y be expected to know her as a widow coming

may reasonabl of their own youth as going to the village. The accused persons in view ught of committing the also the youth of the prosecutrix could have tho d opportunity to ghastly crime against her. It could given them goo ted in the jeep. commit the crime on her. It was unusual for her to get sea g

mbed a runnin It was not an uncommon sight that passengers cli railway d vehicle. as A-2 did. After the accused persons had crosse the to crossing and had came to a lonely place it was not abnormal for A-2 have started taking liberty with her. Being a young man, he was able to overpower her and could have resisted her from raising alarm and cries. The clothes which were seized from her were torn. That indicated that she was not a willing party. The story unfolded by her was not at all unnatural, improbable or a doubtful story, in the setting of the facts naturally attending upon the commission of the crime. It was held that the prosecution in the case quite plausible, natural and inspired confidence and hence the conviction and sentence awarded on the accused persons was upheld. In the case of Iram Chooba Singh v. State of Manipur, 1991 (1) Crimes 513, the prosecutrix was an unmarried girl. One day while she was talking on the road with her boy friend, she was seen by her father. At that time her boy friend Aken Singh left in a cycle. She was much frightened and afraid to face her father who might have given her good beating for talking to a boy on the road. She then decided to elope with Aken Singh and went out in search of her. Since she could not find her, she went to the house of a lady known to her and told her about her misery. Her husband told the prosecutrix that Aken Singh was known to him and he can find him out, but since he come late in the night, she was to stay in the night in their house till he comes back. In the night the prosecutrix slept with the lady in the same bed. The accused slept in another bed which was placed perpendicular to his wife’s bed in the same

room. At about 11.30 p.m. the accused told the prosecutrix that Aken Singh had come and asked her to go to the kitchen and open the back door. When she opened the back door she fond none. By that time the accused had followed her to the kitchen, caught her from behind near the back door and committed rape on her by force, without her consent and against her will. After the completion and against her will. After the ip yg of rape, the accused pulled her to his wife's bed and made her ne Semreneiice his wife. At day break she complained to the lady that sb usband had violated her virginity and asked her become his second wile. Thereupon the lady quarrelled with her husband and made preparations for going to her parental house but the accused managed to prevent her from leaving the house. On the following day the prosecutrix a thi to her step-mother. The entire prosecution case rested on the

evidence only. The High Court relying on Apex Court decisions observed

PART Il]

THE PROTECTION OF WOMEN FROM DOMESTIC VIOLENCE ACT , 2005

771

that in a rape case convic tion can be based solely on the evidence of the prosecutrix if the evidence was found to be true havi ng regard to the facts and circumstances of the case. In the present case, it was found that Meiteis were the majority of the population of the Sta te of Manipur and they were veisnoles by rel igion and they belonged to a male dominated

possibility of the lady being an acc omplice could not also be ruled out. She might have remained passive lyin g on her bed without making any attempt to rescue the prosecutrix on the pressure made by the accused. When the prosecutrix complained to her, she just pretended to revolt against her husband. The fact that her ang er was subsided within a short period supported the view that her anger was a mere show and not from her heart. Thus, the passive attitude of the lady could be explained in many ways and was not against the hum an conduct in any manner. Hence, the High Court did not find any infi rmity or improbability in the statement of the prosecutrix. The statement of the prosecutrix finds support from the evidence of the Medical Officer who examined her. The forearm and outer aspect of the upper arm, bruise on the leftside of the left forearm, abrasion on the left side below the chin, abras ion on the

772

(PART I

DOMESTIC VIOLENCE OM FR N ME WO OF N TIO TEC PRO ON LAWS

the left side of neck go to r ove s nes der ten and t foo ht outer aspect of rig er body which would came got injuries on such parts oth

show that she shed down with great force and pu was she if und gro the h wit into contact eling resisting and struggling in kne le whi nd ou gr the t ins aga e would rul doctor there was recent rupture of the of ce den evi per as in Aga on. iti pos tion of the accused could be rested the hymen etc. Hence, held that convic on utrix accused and was made to die on the sole testimony of the prosec e torn and her undergarments also the floor. The hooks of the blouse wer d that she was weeping and after were removed forcibly. She also depose and went to nearby shop. The the incident she came out of the house ported by the medical evidence. evidence of the prosecutrix was fully sup

set up by the accused was PWs 2 and 3 showed that the plea of alibi n. false. Her testimony could be fully relied upo Pradesh, 1990 (1) In the case of Ram Dittu v. State of Himachal the statement of the Crimes 149 (H.P.), it appeared to the High Court that it was_ thoroughly and prosecutrix did not inspire confidence itted the unbelievable. There was no reason for the accused to have comm had at all offence at the place narrated by her, since if the accused done in wanted to commit the offence, the same could have easily been of the Ghorat itself and not in the open place., So also held in the case Smt. Pushpa v. State of Rajasthan, 1990 (3) Crimes 388 (Raj.) that no reliance could be placed on the testimony of the prosecutrix. In the case of Vinod Kumar v. State of Madhya Pradesh, 1990 (3) Crimes 616 (M.P.), it was held that it is a settled law that if the testimony of the prosecutrix had not suffered from any infirmity in the facts and circumstances of the case or even if her evidence was not corroborated in material particulars, the rule of corroboration need not be insisted. In a rape case, the eye-witness account could only be rendered by the prosecutrix and none else.

In this case of Trial Judge had placed explicit reliance on the testimony of the prosecutrix. And the High Court, having been taken through the entire evidence on record, found no discrepancy in the material particulars which could go to the root of the matter. A girl or woman in the tradition bound non permissive society of the country would be extremely reluctant even to admit that she had been raped and

thus, required to take the risk of permanent danger of her chastity throughout her life. Every woman is conscious of this danger and that is why woman in this country are reluctant even to report the matter to the police. In this case it was not pginted out as to why the prosecutrix would aged implicate the accused persons when they were unknown to her. i Aspe

|pone

finding the lonely and un-escorted woman

decided

he tat dentcaton para,Nodoubtmedial epeea8 tinea

at hee %prec to enjoy her physically fearing no reappraisal from ee

ubt, medical r

on her person. One of the accused ean:

aa

ERT

oar e and the prosecutrix was threatened with dire consequences if she not act according to their wishes. In such a situation, the prosecutrix

PART Il]

THE PROTECTION OF WOMEN FROM DOMESTIC VIOLENCE ACT, 2005

773

except to surrender, was not expected to fight with the accused persons. It was observed, that the victim of such a crime would only describe the real culprits and would not falsely impl icate the wrong persons if the crime is having committed. The convicti on and sentence of the accused persons was upheld by the High Court.’ In the case of Ramcharan v. State of Mad hya Pradesh, 1983 (3) Crimes 165 (M.P.), it was held that in a rape case, the oral testimony of the prosecutrix particularly when she is married and grown up women must be scrutinized with abundant caut ion and care to ensure that it was not concocted or embellished to any extent. The story given by her and tried to be supported by his father-in-la w and her husband did not appear to be convincing. Another circumst ance to discredit her oral testimony,

was the negative nature of medical evidence . The prosecutrix had stated that she was felled on the ground by the accused who had also given tooth-bite on her right cheek, but there were no external injuries on the person of the prosecutrix. Ther efore, it was held that the prosecution story regarding the alleged rape was not free from doubt and as such the accused deserved to be acquitted. In the case of Labh Singh v. State of Madhya Pradesh, 1986 (3) Crimes 176 (M.P.), the prosecutrix was a married nurse , aged about 42 years. The prosecutrix alleging rape on her did not say that she had offered any resistance or she was manhandled and subjected to any assaults. In this case the prosecution story was not free from doubts. She actually boarded the truck for going to Seoni. The accu sed happened to be a driver and another was the conductor. The accused did not stop the truck at Seoni. After some other passengers got downs from the truck and when the prosecutrix was all alone with the drive r and the conductor, they were alleged to have committed rape on her and to have left her in the village. She was medically examined and found to have several contusions and abrasions on the part of her body, as per medic al injury report. The Trial Court, though did not rely on identifica tion proceedings, convicted the accused persons based on the testi mony of

the prosecutrix and her husband. The High Court found that the trial Court

was

right

in

disbelieving

the

test

identification

parade.

The

prosecutrix was found to have been corroborated by her husband only,

the other witness turning hostile. The prosecutrix did not say that her mouth was gagged with any piece of cloth although her husband stated

that his wife had informed him about this. The prosecutrix had stated about a head injury which was not be found in the injury report although there were several other injuries on her knees, thighs, elbows, mandible, cheeks etc. In the face of highly week and scanty evidence against the accused, it was held that he was entitled to benefit of doubt. In the case of Swarn Singh v. State of Punjab, 1995 (3) Crimes 775 (P & H), there was no other evidence except that of the prosecutrix. Her evidence did not find support from the medical evidence nor from the testimony of her husband. There was also delay in lodging FIR.

[PART Il

STIC VIOLENCE LAWS ON PROTECTION OF WOMEN FROM DOME

774

1995 (3) State of Odisha, In the case of Fanibhushan Behera v. prosecutrix

Crimes

of the 537 (Orissa), it was held that the evidence

under Section 376 I.P.C. alone was efficient to maintain the conviction prosecutrix, reinforced There was absolutely unshaken testimony of the spot immediately. by the evidence of the villagers who reached the In the case of Mangi Ram alias Mangi Lal v. State of Rajasthan, 1995

had 116 (Raj.) the allegations were that the accused (3) Crimes 22 years. committed the offence of rape on the prosecutrix aged about The claim of the prosecutrix and other prosecution witnesses that she

was held by arms by A-1 and her mouth was shut by A-1, thus aiding in getting commission of rape by the accused A-2, the learned Trial Court found this part of the evidence to be unbelievable. So A-1 was acquitted

and A-2 was convicted of the offence of rape. It was contended on behalf of the accused A-2 that if the testimony of the prosecutrix in relation to commission of any offence by A-1 ie. in relation to his holding her hands and gagging her mouth to enable A-2 to commit rape on her, was to be discarded, it was a wrong to accept the remaining testimony. Hence it was contended that the commission of rape was highly improbable. It was stated by the prosecutrix that the accused persons, after committing rape ran away having snatched her golden earnings. This part of the testimony too was not believed, not only by the Trial Court but the High Court too. It was held by the High Court that if the witness had chosen to state a deliberate falsehood, namely, the snatching away of the ear-rings by the accused, while running away after committing rape, her in relation testimony, without unacceptable to rape becomes’ corroboration. No such corroboration was forthcoming in this case. The witnesses were found to have stated falsely that A-1 was involved in holding the hands of the prosecutrix and gagging her mouth. The witnesses had stated falsely that the accused persons committed robbery

by snatching the ear-rings of the prosecutrix and it was held that consequently their statement that A-2 committed rape was likely to be

once: teordbie i inspire confidence, as said by the High Court.

PC Sane at Aad not committed the offence under Section 376 PC. prosecutrix could not be believed in this regard. In the case of Mannava

Venkateswarlu v. State.

1995 (2) Crimes

854 (A.P.), the prosecutrix a married woman was alleged to have ravis hed by the accused. On the fateful day, the prosecutrix, having gone for agricultural

monitoring and operations, as proceeding, towards her field where the accused coming from the opposite direct ion asked her to submit for sexual intercourse with him. The victim resisted and infact took a dried mirchi stick and beat the accused on his legs. But the accused with his brute force dragged the victim to a low lying area surrounded by shrubs. The victim had resisted the violence on her bod and scratched on the face and body of the accused. She raised cries but the accused gagged her mouth with cloth. The scene was such that there

was

nobody either or in the Surroundings

and the place was

also

such that it was not visible. Inspite of the resistance offered by the victim one

PART Il)

THE PROTECTION OF WOMEN FROM DOMESTIC VIOLENCE ACT, 2005

715°

the scruffle. The accused who was physically strong with brute force lifted her under-cloth and Saree, opened her blouse and committed rape on her. During the commission of rape, because of the victim's

who was working as carpenter there. The victim examined in the Court as PW-1, even though Subjected to lengthy cross-examination, nothing could be elicited to shake the truthness of her statement. Her statement was fully corroborated by PWs 5, 6 and 7 and also PWs 2, 3 and 4. It was held that the statement of the prosecutr ix with regard to the commission of rape had been amply corroborated and proved beyond all reasonable doubt and the offence against the accuse d was brought home. In the case of Lingraj Pillai v. State of Odis ha, 1995 (2) Crimes 612 (Odisha), the prosecutrix had clearly stat e that on the night in question after trying the hands of her mother and gagg ing her mouth. The accused pounced on her, forcibly made her lie on the ground, tried to unbutton her shirt, kissed on her cheeks and neck and forcibly lifting her saya tried to penetrate his penis inside her vagina. If this evidence was to be believed, it was clearly established that the accused committed the said acts with the strong determination to commit rape on her at any cost. She was supported by the testimony of PW 2, 8 and 9.

In the case of Guntuboyina Gangulu v. State of Andhra Pradesh, 1995 (2) Crimes 356 (A.P.), the prosecutrix was a married lady. On the unfortunate day, at about dusk time, while she was returning to her parents alone, she was stopped by the accused, put a piece of cloth in her mouth, carried her to the bushes nearly, fell her on the ground,

caught hold of her legs and hands and forcibly had sexual intercourse, even though she was resisting. P.W-2 a cousin of the prosecutrix

observed

the same,

while he was

in search

of the cattles. The

main

question in this case was whether the evidence of the prosecut rix could be accepted. Even prior to her marriage the accused used to make

gestures to her and after the marriage the incident took place , having not

lost his temptation to enjoy her at any time. The evid ence available on record and the medical evidence showed that. the injuries on the victim

established that she resisted the act. The delay in giving FIR was by itself was held to be not a ground to brush aside the case of prosecutrix. Even

if there was any discrepancy with regard to the medical evidence. still weight was given to the testimony of the victim. There was no reason for

her to sacrifice her life for the sake of same body and to involve a person falsely in the case, alleging that he was responsible for committing rape on her. There was no consent to the act as evidence from the injuries on her and the broken bangles. When a young able bodied man aged 26

FROM DOMESTIC VIOLENCE LAWS ON PROTECTION OF WOMEN

776

[PART Il

it was natural for her to surrender. , tion posi less help a in was who s, year made earlier to

to the gestures The factum that she was not responding that there were injuries, the commission of the offence and the fact inst her consent. Hence held clearly established that the act was done aga n 376 I.P.C. and

er Sectio that the accused was guilty of the offence und so convicted and sentenced. Crimes 359 In the case of Koja Ram v. State of Rajasthan, 1995 (2) years and the (Raj.), the prosecutrix was married and aged about 22 l day when accused was aged 21 years. She deposed that on the fatefu in an she was going to her field carrying meals for her husband, right earthen-ware. The accused stopped her and caught hold of her hand, whereupon the vegetables, etc., scattered on the path. She was dragged inside the field to a distance of 40 ft. Her statement was fall to the extent that the food articles had fallen in the path where her hand was caught, rather they were found inside the field where ultimately she was dragged. Even the pieces of broken bangles were found inside the field. There was no stains of vegetables on her lahenga which showed no resistance being put up. Her version was not believable on many counts. She deposed that the accused committed rape on her for a period of about one and half hour. Looking at the age of the prosecutrix and the accused, it was quite unnatural that if she was not a consenting party then why she did not make any alarm or make any hue and cry and put any resistance when she was being dragged. No marks of dragging were noticed on the path or inside the field. There was no marks of injury on the cheeks, breasts, back, hand or legs of the prosecutrix, although she stated that the accused had bitten 304 times on her cheeks with force and the accused squeezed her breasts at 5-6 places and that she had shown the marks of bites on her cheeks and redness on her breasts to the doctor, but the medical report did not reveal so. It was observed by the High Court that the testimony of the prosecutrix was replete with contradictions and inconsistencies of Himalayan magnitude. Her conduct was quite unnatural and against human conduct. Neither the ghagra alleged to have been stained with human blood and semen had been produced in the Court nor the chemical examination report of those stains and vaginal swab had been field in the Court. The doctor did not aad any conclusive report on opinion as to whether the prosecutrix was

= yiaadan Lai.

ee

her version at different stages. Her

e There Sain Oe fore thesin such circumst ances , ina the considerede opinion of the High } earned trial Court had not discussed, analysed and evaluated the evidence recorded in this case in the right prospective in holding th that

in holding the accused was guilty of the offence und er SectionP 376 e I.P.C. The High

Court held that t

376 LP.C.

In the

he accused was not guilty of the offence under Section

case

of Sadhara y v. State of Madhya Pradesh, 1995 (2 106 (M.P.), the medical evidence had completely demolished ihe estimony

nin

of the

prosecutrix

that

she

was

subjected

to rape

by the

PART Il]

THE PROTECTION OF WOMEN FRO M DOMESTIC VIOLENCE ACT, 2005

777

accused. The prosecutrix had not given consistent evidence. Her evidence on the point of rape was very vacillating, therefore, the testim ony of the

was in favour of her versio n. The prosecutrix version was corroborate and believed to sus tain conviction against the accuse d.

fully

the husband of the prosecutrix was absent from the village. In the absence of such evidence, if the husban d had left the village in the evening of the fateful day, the possibility of such injury being caused by any act of the husband could not be rule d out. Hence, the presence of injury in the genital canal of the prosecut rix could not be conclusively attributed to any act allegedly committe d by the accused. There was blood stains and semen stains on the Saya of the prosecutrix, but there was no evidence that the semen found ther ein was either) of the accused persons. The possibility of the semen being that of the husband could not be ruled out. That was all the more so, whe n there was no evidence showing that the saya in question was either a new one or the same had been washed and dried prior to the alleged occu rrence. It was highly pert

inent to not that although according to the pros ecutrix the accused persons made their ingress into the house through a hole created in the roof, the I.O. (PW-5) had deposed in unequivocal term s that he did not mark any violence in the roof although he visited the spot on the day following the night of occurrence. It was found on perusal of the evidence

of the prosecutrix and other witnesses, that there ewer ever y telling circumstances which strongly militated against he version of | the prosecutrix. There was of course nothing to show that the prosecutrix or her husband had any axe to grind against the accused persons giving

rise to the finding of a serious case of false allegation, but the same could not be a ground to rely on the uncorroborated testimony of the

[PART Il

FROM DOMESTIC VIOLENCE LAWS ON PROTECTION OF WOMEN

778 cutrix,

when

the

same

was

other

discredited

by

on t was created about the commissi a circumstances and so a d oub

telling of the

offence.

of Madhya Pradesh, 1993 (3) In the case of Abhay Kumar v. State was 18 years old married womans Crimes 1018 (M.P.), the prosecutrix the accused persons committed who had gone for easing herself when m a definite

could not for rape on her against her will. The medical report The trial judge placed opinion about rape being committed on her. roborated to which was cor reliance on the testimony of the prosecutrix,

ning the connected same extent, by the other witnesses concer testimony of the circumstances. There was no reason to discredit the used persons prosecutrix. She had very clearly stated that when the acc stance, but caught hold of her, she had raised a cry and offered some resi was held the two accused persons forced her to sexual intercourse. It give that since the prosecutrix was a married lady, the doctor could not any definite opinion about commission of forcible sexual intercourse, but the testimony of the prosecutrix inspired confidence that she was subjected to sexual intercourse as she was overpowered by two accused persons. There was no circumstance to suggest that she would falsely implicate the two accused persons. The conviction of the accused under Section 376 I.P.C. was maintained. In the case of Adam Tirky v. State of Odisha, 1993 (2) Crimes 33 (Odisha), the prosecutrix was a married woman (and her version was accepted by the Court as reliable. In the case of Sanya alias Sanyasi v. State of Orissa, 1993 (2) Crimes 927 (Orissa), the prosecutrix was a married woman) aged 28 years. On the date of occurrence, she was returning from the market along with others. She found that by mistake she had left some articles in the weekly bazar and therefore she returned to the market by keeping her bundle of articles in the hospital. When she came back, she found the packet missing. She could know that the accused had taken it. She found the accused near the river and collected the pocket from him and started going towards the village. Little thereafter she was suddenly caught hold by the accused and.she was forced to have sexual intercourse with him. Then, she went to her mother and narrated the incident. She had stated that she sustained injury on her mouth, and back side of the shoulder, left hand and thigh. She was examined by the doctor. She also said that it was her second marriage. It appeared from the evidence of the prosecutrix that she had suppressed a substantial part of the prosecution case as was originally brought by her in Section 161 statement. There were material discrepancies in her FIR and statement before the Court. The inconsistencies casted a doubt on the prosecution case. The injuries stated by the prosecutrix were absent in the medical opinion. Although lone testimony of the prosecutrix could be relied upon but in this case her testimony was not reliable and believable and could not be accepted as true and free from suspicion. Hence held that the conviction and sentence of the accused could not be maintained

PART Il]

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In the case of Chidda Ra m v. State, 1992 (2) Crim es 1140 (Delhi), the prosecutrix was held to be above the age of 16. The accused was brother-in-law of her sister and known to her. He su cceeded in elopping her by offering to Provide her good clothes and food. She went to his

was held that her testimony that the accused committed rape on her was belied from the facts which had come on record.

In the case of Mohammed Saleem v. State, (Delhi), the entire Prosecuti on case rested on

1991 (3) Crimes 459 the evidence of the

offence.

In the case of Iram Chaoba Singh v. State of Manipur, 1991 (1) Crimes 513 (Gau.) the prosecutrix was unmarried girl, who one day was talking to her boy friend on a path and suddenly saw her father who

must have seen her talking to a boy on the road. She became panicky. By the time her body friend left the place in the cycle. Being afraid to go to her house and face

beatings of her father she went to search of her boy friend to elope with him. Not finding him, she went to the house of her another known lady and told to her about the matter. The husband of the lady told prosecutrix that he knew her boy frie nd and would call him. but since he used to come late in the night the pros ecutrix had to stay night

in their house. In the night both the prosecutrix and the lady slept on

one bed. The lady was pregnant. The husband was sleeping on the bed which was placed perpendicular to his wife's bed in the sam e room. At

[PART Il

CE MEN FROM DOMESTIC VIOLEN LAWS ON PROTECTION OF WO

780

-

ix saying that her boy m, the accused called he prosecutr h the kitchen. her to open the door throug

en oe i. and asked Accordingly the prosecutrix

went

to the kitchen.

By that time,

the

notice, caught her from behind her t hou wit her ed low fol who d accuse consent and mitted rape on her without her

near the back door and com

to n of rape, the accused pulled her against her will. After the completio besides his wife. At day break she his wife's bed and made her lie down d had violated her virginity and complained to the lady that her husban y quarreled with ame his second wife. Thereupon the lad asked her to bec going to her parental house but her husband and made preparations for m going away. On the following the accused manager to prevent her fro e p mother. The prosecution cas day the prosecutrix complained to her ste version

utrix. Relying on her rested on the solitary evidence of the prosec the accused was convicted. Odisha, 1991 (2) In the case of Gagan Bihari Samal v. State of evidence that Crimes 842 (SC), the prosecutrix had clearly stated in her there she she had been taken to a solitary house in the hills of A-1 and d and was made to drink liquor and thereafter she was undresse after subjected to forcible intercourse by two accused persons, one and another. Her uncontroverted testimony had been accepted by all the Courts and Courts concurrently found that she was raped without her consent. It was clear evidence that the victim girl protested and struggled while she was subjected to sexual assault by the accused persons and that clearly evinced absence of consent on the part of the victim girl in such sexual inter-course. In the case of Ram Lal v. State, 1991 (2).Crimes 545 (P & H), the prosecutrix was a married woman, a simple lady of credulous nature. The prosecutrix belonged to Sangrur and had gone to Amritsar to the house

of her mother in connection with the marriage of her sister. In the meantime she paid a visit to Chandigarh and collected the address of her causin from Jalandhar enroute. The life and style in Chandigarh was certainly different from other cities. She went to the market in the autorickshaw and asked Ram Lal, when she met, about the address. He taking advantage of her simplicity told her that he knew her cousin. The

prosecutrix

believed

him.

Her

statement

in

this

regard

was

quite

consistent with probabilities of the case that she believed him. The said Ram Lal took her to a house. There the said accused raped her after

having given her threat and slapping her that if she raised alarm she would meet dire consequences. From there on Guddu took her to another place occurring her that she would be taken to her uncle's place. But she was placed in the clutches of another accused. And from there she could free herself before she could be raped again. There was a ring of truth in

her statement and there appeared to the High Court no reason to differ froin the evaluation of her testimony as made by the Trial Court. Once

the statement of the prosecutrix was found to be reliable absence of marks of injury on her person would not make any infirmity in the prosecutrix. She was all through under threat and could free herself

PART II]

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781

when got the “portunity. The acc used persons were found guilty of the offence of rape. In the case of State of Odisha v. Das ru Kisan, 199] (2) Crimes 437 (Odisha), the allegation against the accused was that he had sexual intercourse with the Prosecutrix a girl of 16 years age without her consent. Both Trial Court and Appell ate Court found her age to be above

injuries on her buttock and back, but the doctor found none. She stated that both her ‘sro

ther and sister (PW-2) saw the sexu al assault on her. Later she excluded the brother to have seen nor the brother was examined in the Court. Accused was lean and thin man and in assessment of

the prosecutrix she could have overpower ed him. She had an axe. Her sister had one and her brother too and so it was not all difficult to overpower the accused before the act of. The testimony of the prosecutrix mus t be appreciated in the background of the entire case and the Tria l Court must be alive to its responsibility and be sensitive while dealing with case of sexual molestation. If the evidence of the prosecut rix inspires confidence, it must be relied upon without seeking corrobor ation of her statement in material particulars. In this case it reliance may be placed to decisions in State of Punjab v. Gurmail Singh, AIR 1996 SC 1393; State of Rajasthan v. N.K. AIR 2000 SC 1812: State of Himachal Pradesh v. Lekh Raj, AIR 1999 SC 3916; Madan Gopal Kakkad v. Naval Dube y, (1992) 3 SCC 204 and State of Himachal Pradesh v. Gian Chand, AIR 2001 SC 2075. In the case of Mohan Lal v. State of Rajasthan, AIR 2003 SC 698, the Apex Court found that there were serious doubts about the truthfulness of the version of the prosecutrix and it was unsafe to rely upon her testimony. In case of Sufjan v. State of Madhya Pradesh, AIR 2002 SC 476, the Apex Court observed that the argument adopted by the High Court that the lady like P.W. 1 had no reason to falsely implicate the six persons for rape, appeared to be fragile one on the fact situation of the case. Without laying down a proposition of law that the uncorroborative testimony of the prosecutrix will not be sufficient for entering conviction for rape, but then the evidence of the solitary witness should inspire confi dence in judicial mind, and be of such a nature that the Court must be able to certify that the testimony was wholly reliable. In this case the prosecutri x was

married

twice

an

was

deserted

by her husbands

and

she claimed

that while she was proceeding alone in the dark on the night of occurrence though an open field, the sky was over cast and was drizzling in fall swing, she was caught hold of by six persons who one by one committed rape on her. She chose not to divulge this to anyone on the said night in spite of the fact that she could reach home and her mother confronted her for coming late. She did not divulge it to her mother or

anybody

that

she

else on the second

was

subjected

or even

to medical

on

the third day. It also appeared

examination,

but

the

prosecution

782

STIC VIOLENCE LAWS ON PROTECTION OF WOMEN FROM DOME

(PART II

ion before the thought if fit not to show the result of the medical examinat not brought Court and it was told to the Court as to why such report was rely on the in evidence. Apex Court held that the Court cannot evidence was uncorroborated testimony of the prosecutrix unless the said

, AIR wholly unreliable. In the case of State of Odisha v. Thakara Besra 2002 SC 1963, the testimony of the prosecutrix appear to be truthful and trustworthy being without any embellishments and exaggerations. She was corroborated by her immediate and subsequent conduct as also the medical evidence. In the case of Bhupinder Sharma v. State of Himachal Pradesh, AIR 2003 SC 4684, it was held that conviction of the accused

for the offence of rape can be based on the testimony of the prosecutrix without any corroboration. It is true that the evidence of the prosecutrix in a rape cape is to be given due weight. The sexual violence is a demunaioning act and it is an unlawful encroachment into the right to privacy and sancity of women. The Courts should also be strict and vigilant to protect society from such evils. It is in the interest of the society that serious crimes like rape should be effectively investigated. It is equally important that there should be fairness to all sides. In a criminal case, the Court has to consider the triangulation of interests. It is involves taking into account the position of the accused, the victim and his on her family and the public. The purpose of criminal law is to permit, everyone to go about their daily lives without fear of harm in person or property. It is true that the sole testimony of the victim of a sexual offence can be a basis for conviction provided, it is safe reliable and worthy of acceptance. The Court had occasion is many cases, to consider the nature of evidence required when the conviction mainly based on the testimony of the victim of the sexual offence. In the case of Balwant Singh v. State of Punjab, AIR 1987 SC 1080, the victim girl was aged 19 years old student. There was no eye witness. The police investigated the case and the case reported to be cancelled. The Apex Court held that both the learned Additional Sessions Judge and the High Court have believed the evidence of the prosecutrix and her father and there was no reason why their evidence should not be believed and the conviction was thus based solely on the evidence of the prosecutrix. In the case of Rafiq v. State of Uttar Pradesh, AIR 1981 SC 559, it was held that corroboration as a condition for judicial reliance on the testimony of a prosecutrix is not a matter of law

but a guidance of prudence under given circumstances. In the case of Kishan Lal v. State of Haryana, AIR 1980

SC 1252, it was held that we must bear i probability MM! Wretwhen at assessing mous g the testimonial potency of the version of the remarkable set of facts of bashfulness, the innocent

to improbabilise

the hypo

person of the victim, espec

PART Il]

THE PROTECTION OF WOMEN FROM DOMESTIC VIOLENCE ACT , 2005

783

life inherent in the prevalent sys tem. The realities of life have to be kept in mind while appreciating the evidence for arriving at the tru th. In the case of State of Rajasthan v. N.K. AIR 2000 SC 1812, the re is

victim provided such evidence insp ires confidence in the mind of the Court. The accused cannot cling to a fossil formula and insist on

the Apex Court in Rafiqv. State of Uttar Pradesh, AIR 1981 SC 96 with some anguish. The same view was echoed agai n in Bharwada Bhogiabhai and Hirjibhai v. State of Gujarat, AIR 1988 SC 753. It was observed in this case that in the Indian setting, refusal to act on the testimony of the victim of sexual assault in the absence of corr oboration as a rule, is

adding

insult to injury. A girl or a woman

in the tradition

bound

non

permissive society of India would be extremely reluctan t even to admit that any incident which is likely to reflect on her chas tity had ever occurred. She would be conscious of being ostracized by the soci ety and

(PART I

DOMESTIC VIOLENCE LAWS ON PROTECTION OF WOMEN FROM

784

crime is brought to light, there is in when in the pace of these factors the rather than fabricated. Just as e uin gen is rge cha the t tha nce built assura ch is not known or believed to a witness who has sustained an injury, whi to in the sense that he is least likely s nes wit t bes the is ed lict -inf self be of a victim of sex offence is dence exculpate the real offender, the evi corroboration entitled to great weight, absence of

notwithstanding.

As

ra v. Chandra Prakash stated in the case of State of Maharasht be adding insult to injury alchand Jain, AIR 1990 SC 658, it would Kew

to tell

a woman

ed unless it is that her chain of rape will not be believ

e of an accomplice to a corroborated in material particulars is in the cas or the woman who crime. Why should be the evidence of the girl wed with the aid of complains of rape or sexual molestation be vie ief or suspicion eit spectacles fitted with lenses tinged with doubt, disbel en is unfortunate that in our country the respect for wom g. win and cases of molestation and rape are steadily gro

is on decline Decency and

rt deal morality in public and social life can be protected only if Cou e of strictly with those who violate the social norms. Also held in the cas State of Punjab v. Ramdev Singh, AIR 2004 SC 1290, that a victim of rape stands at a higher pedestal than an injured witness; in the later case there being injury on the physical form, while in the former it is both physical as well as phsycological and emotional. Same view was taken in the case of Aman Kumar v. State of Haryana, AIR 2004 SC 1947. In the case of State of Himchal Pradesh v. Shree Knat Shekan AIR 2004 SC 4404, the Apex Court found no difficulty in accepting the version of the prosecutrix . This was the case of rape by a teacher on a student. The Apex Court refused to accept the plea of false accusation. In the case of Staie of Rajasthan v. Biram Lal, AIR 2005 SC 2327, the Apex Court found the evidence of the prosecutrix was worthy of credit and implicitly reliable. The order of acquittal by the High Court was set aside. An held in the case of State of Madhya Pradesh, v. Dayal Sahu, AIR 2005 SC

3570, if the statement of prosecutrix inspires confidence and accepted by the Courts, conviction can be passed only on the solitary evidence of the there are unless prosecutrix without any further corroboration compelling reasons which necessitates the Courts for corroboration of her statement. As held in the case of State of Himachal Pradesh v. Asha Ram, AIR 2006 SC 381, it is a settled principle of law that conviction can be founded on the testimony of the prosecutrix alone unless there are compelling reasons for seeking corroboration. The evidence of a prosecutrix is more

reliable than that of an injured witness.

In the case

of Vishnu v. State of Maharashtra, AIR 2006 SC 508, the statement of the

prosecutrix

was

quite

natural,

inspire

confidence

and _ merited

7 ieee In the case of Parbata v. State of Rajasthan, AIR 2006 SC ppeared to the Apex Court that the testimony of the prosecutrix was truthful and supported by medical evidence. It was observed that absence of any stains of semen on the clothes of the prosecutrix or the co aa were of no consequence in the case since the clothes of the appellant were seized and examined after four day of the occurrence.

PART Il]

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785

Minor discrepancies in ev idence did not warrant rej ection of the evidence of PW-2 and PW-s. It was observed by the Ap ex Court that their found in the case of Om Prakash v. State of Uttar Pradesh, AIR 2006 SC 2214, that there was no ground to disbelieve the version of the

based on the sole testimony of the prosecutrix. The corroborative evidence is not an imperative compon ent of judicial credence in every case of rape nor the absence of injuries can be constructed as evidence or consent. In the case of evidence of consent. In the case ot Rajinder alas Raju v. State of Himachal Pradesh, 200 9 (3) Crimes 22 (SC), it was stated that there was nothing on record that created any doubt/disbelief or a suspicion about the evidence of the pros ecutrix. The Apex Court ‘hei ipon the decision in State of Pun jab v. Gurmit Singh, (1996) 2 SCC 384; Varayan alias Naran v. State of Rajasthan, (2007) 6 SCC 465; Rad hu v. state of Madhya Pradesh, (2007) 12 SCC 57:’ State of Rajasthan v. N.K.

VIOLENCE WOMEN FROM DOMESTIC OF N TIO TEC PRO ON S LAW

786

[PART II

te of ons in Pratap Mishra v. Sta isi dec the d she gui tin dis (2000) 5 SCC 30; iv Ramarao Hadbe v. State of sh da Sa 41: C SC 3 77) (19 , sha Odi Hamed the case of Hameeda alias In 92. C SC 10 06) (20 ra, Maharasht utrix Crimes 348 (M.F.j) the prosec (3) 09 20 .. M.P of te Sta v. Khan a roving cross sion despite there being ver her in ed end ed in ma re ent and ony was found to be clear, cog examination over her. Her testim e of Ram

n. It was held in the cas trustworthy and could be relied upo 120 machal Pradesh, 2010 (1) Crimes Singh alias Chhaju v. State of Hi ix inspired confidence. More so her utr sec pro the of ony tim tes the ) (SC ical evidence and other witnesses. evidence was corroborated by the med

T) of Delhi, 2010 (i) Crimes 190 In the case of Phool Singh v. State (NC on the testimony of the (Delhi), there was the difficulty in acting her in elucited were contradictions major No prosecutrix. ony. As stated in the case of cross-examination to discard her testim desh, JT 2009 (9) SC 9. any Rajinder alias Raju v. State of Himachal Pra ng experience for a woman statement of rape is an extremely humiliati ance any one lent and until she is a victim of sex crime she will not bal secutrix, the the real culprit. While appreciating the evidence of the pro ting women would Courts must always keep in mind that no self respec her and put her honour at sake by falsely alleging communion of rape on timony is therefore, ordinarily a look for corroboration of her tes unnecessary and uncalled for. In the case of Santosh Moolya v. State of Karnataka, 2010 (2) Crimes 405 (SC), the oral testimony which is found to be cogent, reliable, convincing and trust worthy has to be accepted.

In the case of Dimple Gupta (minor) v. Rajiv Gupta, (2007), 10 = & & 30, the Apex Court held that a person coming from altogether different back ground and having no education may not be able to give a precise account of the incident. However, that cannot be a ground to reject her testimony. The Court observed that in a case like rape, "it is impossible to lay down with precision the chain of events, more particularly, when illiterate villagers with no sense of time are involved. A similar view was taken in the case of Virendra (2008) 16 SCC 582.

alias

Buddhu

v. i State of Utt ar Prades a oa

In the case of Vijay alias Chinee v. State of Mad (3) Crimes 212 (SC), the testimony of the a ee erie upon and it was held that it was not a case of consent. There is no legal compulsion to look for any other evidence to corroborate the evidence of sof Rb oo before recording an order of conviction, as stated in State “4 imachal Pradesh v. Raghuvir Singh, (1993) 2 SCC 622, reiterated in e case

of Wahid

Khan v. State of Madhya

Pradesh,

(2010)

2 SCC

9,

i g reliance on the d ecisio placin n of Rameshwar v. State of Rajasthan, AIR 3059. SC. 64.

=

33.

Penalty

for not

discharging

duty

by Protection

cer.—If any Protection Officer fails or refuses to discharge his duties as directed by the Magistrate in the protection order without any sufficient cause, he shall be punished with

PART Il}

THE PROTECTION OF WOMEN FROM DOMESTIC VIOLENCE ACT, 2005

787

rupees, or with both. COMMENTARY | The Protection Officers are appointed to play an impo eimplementation of the Pro rtant role in th visions under this Act. If they fair or refuse to

protection order by the respondent, which shows how important is the role of the protection office r under the Provisions of this Act.

34. Cognizance of offe nce committed by Prot ection Officer.—No Prosecution or other legal proceeding shall lie ag

ainst the Protection Office r unless a complaint is fil ed with the previous sanction of the State Government

Me.

or an

SYNOPSIS

ee) NE moten sag 2. Provisions regarding sancti on as contained in Code of Cri minal Debate: eid. een elimina COMMENTARY

1. Section

officer

787 ae

787

Scheme.—For Prosecution of the protectio n officer under 33, previous sanction of the State Government or an offi cier

197.

Prosecution of Judges and pub lic servants.—(1)

When any person who is or was a Judge or Magistrate or a public servant not removable from his offi ce Save by or with the sanction of the Government is accused of any offence alleged to have been committed by him while acting or purporting to Act in the discharge of his official duty, no Court shall take cognizance of such off ence except with the

previous sanction— (a) in the case ofa person who is empl oyed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of the

Union, of the Central Government

:

788

[PART I

OM DOMESTIC VIOLENCE LAWS ON PROTECTION OF WOMEN FR

employed or, as the case is o wh son per a of e cas (b) in the mmission of the alleged may be, was at the time of co n with the affairs of a offence employed, in connectio : Provided that where the ‘State, of the State Government a person referred to in alleged offence was committed by a Proclamation issued clause (b) during the period while constituuon was in under.clause (1) of article 356 of the apply as if for the force in a State, clause (b) will ing therein, the expression "State Government" occurr e substituted. expression" Central Government" wer of any offence alleged to (2) No Court shall take cognizance the Armed Forces have been committed by any member of to Act in the of the Union while acting or purporting the previous discharge of his official duty, except with sanction of the Central Government. direct that the (3) The State Government may, by notification, class or provisions of sub-section (2) shall apply to such the category of the members of the Forces charged with in, maintenance of public order as may be specified there whereever they may be serving, and thereupon the provisions of that sub-section will apply as if for the expression "Central Government" occurring therein, the expression "State Government” were substituted.

(3A) Notwithstanding anything contained in sub-section (3), no

Court shall take cognizance of any offence, alleged to have been committed by any member of the forces charged with the maintenance of public order in a State while acting or

purporting to Act in the discharge of his official duty during the period while a Proclamation issued under clause (1) of article 356 of the Constitution was in force therein,except with the previous sanction of the Central Government. (3B) Notwithstanding anything to the contrary contained in this Code or any other law, it is hereby declared that any sanction

accorded

by

the

State

Government

cognizance taken by a Court upon such sanction,

or

any

during

the period commencing on the 20th day of August, 1991 and ending with the date immediately preceding the date on which the Code of Criminal Procedure (Amendment) Act, 1991, received the assent of the President, with respect to an offence alleged to have been committed during the period while a Proclamation issued under clause (1) of article 356 of the Constitution was in force in the State, shall be invalid and such

it shall be competent matter

to accord

cognizance thereon.

for the Central

sancti on

and

Government

in

for the

ne

Seen

(4) The Central Government or the State Government, as the case may be, may determine the person by whom, the

PART Il}

THE PROTECTION OF WOMEN FRO M DOMESTIC VIOLENCE ACT, 200 5

789

minner in which, and ‘he offence or offences for whi ch, the Prosecution of suc

h Judge. Magis-trate or public servant is to be conducted, and may specify the Court before whi ch the trial is to be held.

COMMENTARY When and so long the protec tion officer does any thing und er the provision of this Act, in good faith or intends to do in good faith, no suit, damage caused or likely to be caused by any thing done by him in good faith.

36. Act not in derogation of any other law.—The Provisions of this Act shall be in addition to, and not in derogation of the provisions of any other law, for the time being in force. COMMENTARY The provisions of this Act shall always be in addition to the like provisions contained in the Provision s of any other law for the time bei ng in force.

37. Central

Power of Central Government may,

Government to make rules.—(1) by notification, make rules for

Carrying out the provisions of this Act. (2) In particular, and without prejudice to the generality of the foregoing power, such nules may pro vide for all or any of the following matters, namely : (a) the qualifications and experience which a Protection

Officer shall possess

under sub-section

(2) of Section 8: (b) the terms and conditions of service of the Protection Officers and _ the other officers subordinate to him, under sub-section (3) of Section 8; (c) the form and manner in which a domestic incident report may be made under Clause (b) of subsection (1) of Section 9:

(d)

the form and the manner in which an application for protection order may be made to the Magistrate

under Clause (c) of sub-section

(1) of Section 9:

790

(PART Il

CE MEN FROM DOMESTIC VIOLEN LAWS ON PROTECTION OF WO

is to be filed under (e) the form in which a complaint

Clause (d) of sub-section (1) of Section 9;

by the Protection the other duties to be performed (1) of Section Officer under Clause (i) of sub-section ss

service providers (g) the rules regulating registration of

under sub-section (1) of Section 10; sub-section (h) the form in which an application under (1) of Section

12 seeking reliefs under this Act may

ion be made and the particulars which such applicat ion, shall contain under sub-section (3) of that sect (1) () the means of serving notices under sub-section of Section 13;

of notice to be

of service

() the form of declaration

made by the Protection Officer under sub-section (2) of Section 13;

(k) the qualifications and experience in counselling which a member of the service provider shall possess under sub-section (1) of Section 14;

(J) the form in which an affidavit may be filed by the

aggrieved person under sub-section (2) of Section 23; (m) any other matter which has to be, or may be, prescribed. (3) Every rule made under this Act shall be laid, as soon as may be after it is made,

before each House

of Parliament,

while it is in session, for a total period of thirty days which may be

comprised

in

one

session

or

in

two

or

more

successive

sessions, and if. before the expiry of the session immediately following the session or the successive sessions aforesaid, Houses agree in making any modification in the rule or Houses agree that the rule should not be made, the rule poe have effect only in such modified form or be

effect, as the case modification

may

or annulment

be; so, however, shall

be without

that any prejudice

both both shall of no

such to the

validity of anything previously done under that rule. COMMENTARY

This provision contains the rule making powers of the Central Government, for carrying out the provisions of thisi Act. Such rules h to be published by Gazette Notification.

r

PART III APPENDICES APPENDIX

1

THE PROTECTION OF WOMEN FROM DOMESTIC VIOLENCE RULES, 2006 In exercise of the powers conferred by section 37 of the Protectior. of Women from Domestic Violence Act, 2005 (43 of 2005), the Central Government hereby makes the following rules, namely:1.

Short title and commencement.—(l) These rules may called the Protection of Women from Domestic Violence Rules, 2006.

be

(2) They shall come into force on the 26th day of October, 2006. 2.

Definitions.—In

these

rules,

unless

the

context

otherwise

requires,-

(a)

“Act'

means

the

Protection

of Women

from

Domestic

Violence Act, 2005 (43 of 2005);

“Complaint' means any allegation made orally or in writing by any person to the Protection Officer; of a service provider a member means () "Counsellor’ competent to give counselling under sub-section (1) of section 14; (d) "Form" means a form appended to these rules;

(b)

(e)

“Section means

a section of the Act;

;

(f/ words and expressions used and not defined in these rules but defined in the Act shall have the meanings respectively assigned to them in the Act. 3. Qualifications and experience of Protection Officers.—(1) The Protection Officers appointed by the State Government may be of the Government or members of non-governmental organizations: Provided that preference shall be given to women. (2) Every person appointed as Protection Officer under the Act shall have at least three years experience in social sector. (3) The tenure of a Protection Officer shall be a minimum

period of

three years. (4) The State Government shall provide necessary office assistance or her functions to the Protection Officer for the efficient discharge of his under the Act and these rules. n who has 4. Information to Protection Officers.—(1) Any perso is being. or has been, reason to believe that an act of domestic violence information about it to the or is likely to be committed may give area either orally or in Protection Officer having jurisdiction in the writing. (791)

[APPENDIX 1

DOMESTIC VIOLENCE LAW ON PROTECTION OF WOMEN FROM

792

to the Protection Officer under (2) In case the information is given it to be reduced to in writing and sub-rule (1) orally, he or she shall cause by the person giving such shall ensure that the same is signed is not in a position to furnish information and in case the information l satisfy and keep a record written information the Protection Officer shal

information. of the identity of the person giving such the information (3) The Protection Officer shall give a copy of of cost. recorded by him immediately to the informant free aint of 5. Domestic incident reports.—(1) Upon receipt of a compl tic domestic violence, the Protection Officer shall prepare a domes and incident report in Form 1 and submit the same to the Magistrate n forward copies thereof to the police officer in charge of the police statio within the local limits of jurisdiction of which the domestic violence alleged to have beem committed has taken place and to the service providers in that area. (2) Upon a request of any aggrieved person, a service provider may record a domestic incident report in Form I and forward a copy thereof to the Magistrate and the Protection Officer having jurisdiction in the area where the domestic violence is alleged to have taken place.

6. Applications to the Magistrate.—(1) Every application of the aggrieved person under section 12 shall be in form II or as nearly as possible thereto.

(2) An aggrieved person may seek the assistance of the Protection Officer in preparing her application under sub-rule (1) and forwarding the same to the concerned Magistrate. (3) In case the aggrieved person is illiterate, the Protection Officer shall read over the application and explain to her the contents thereof. (4) The affidavit to be filed under sub-section be filed in Form III.

(2) of section 23 shall

(5) The applications under section 12 shall be dealt with and the orders enforced in the same Code of Criminal Procedure,

manner laid down 1973 (2 of 1974).

under section

125 of the

7. Affidavit for obtaining ex-parte orders of Magistrate.—Every affidavit for obtaining ex-parte order under sub-section (2) of section 23 Shall be filed in Form III. 8. Duties and functions of Protection the duty of the Protection Officer—

Officers —

de t shall be

() to assist the aggrieved person in making a complaint under the Act, if the aggrieved person so desires:

(i) to provide (ii

her

information

on

the

rights

of aggrieved

persons under the Act as given in Form IV which shall be in English or in a vernacular local language;

to assist section

the

person

in making

12, or sub-section

any

(2) of section

application 23

or any

provision of the Act or the rules made there under:

under other

APPENDIX 1] THE PROTECTION OF WOMEN FROM DOMESTIC VIOLENCE RULES, 2006

(iv)

(v)

(vi)

(vii)

(vii)

(x9

793

to prepare a "Safety Plan" including measures to prevent further domestic violence to the aggrieved person, in consultation with the aggrieved person in Form V, after making an assessment of the dangers involved in the situation and on an application being moved under section 12; to provide legal aid to the aggrieved person, through the State Legal Aid Services Authority; to assist the aggrieved person and any child in obtaining medical aid at a medical facility including providing transportation to get the medical facility: to assist in obtaining transportation for the aggrieved person and any child to the shelter; to inform the service providers registered under the Act that their services may be required in the proceedings under the Act and to invite applications from service providers seeking particulars of their members to be appointed as Counsellors in proceedings under the Act under sub-section (1) of section 14 or Welfare Experts under section 15; as appointment for applications the scrutinize to Counsellors

and

forward a list of available

Counsellors

to

the Magistrate; (xj to revise once in three years the list of available Counsellors by inviting fresh applications and forward a revised list of Counsellors on the basis thereof to the concerned Magistrate; (xii) to Provide all possible assistance to the aggrieved person and the children to ensure that the aggrieved person is not victimized or pressurized as a consequence of reporting the incidence of domestic violence; (xii) to liaise between the aggrieved person or persons, polices and service provider in the manner provided under the Act and these rules; (xiv) to maintain proper records of the service providers, medical facility and shelter homes in the area of his jurisdiction. (2)

In addition to the duties and functions assigned to a Protection

duty of officer under clauses (a) to (h) of sub-section 9, it shall be the every Protection Officer(a) to protect the aggrieved persons from domestic violence, in accordance with the provisions of the Act and these rules: (b)

to take

all reasonable

measures

to prevent

recurrence

of

in person, the aggrieved against violence domestic accordance with the provisions of the Act and these rules. f the Protection 9. Action to be taken in cases of emergency.—I information through e-mail Officer or a service provider receives reliable from the aggrieved person or from or a telephone call or the like either

LAW ON PROTECTION OF WOMEN FROM DOMESTIC VIOLENCE

"794

[APPENDIX 1

ve that an act of domestic violence is any person who has reason to belie itted and in a such an emergency situation,

being or is likely to be comm as the case may be, shall the Protection Officer or the service provider, shall accompany the seek immediate assistance of the police who may be, to the place Protection Officer or the service provider, as the case and record the domestic

of occurrence

incident report and present the

appropriate orders same to the Magistrate without any delay for seeking under the Act.

10.

Certain

other

duties

of the Protection

Officers.—(1)

The

l— Protection Officer, if directed to do so in writing, by the Magistrate shal (a) conduct a home visit of the shared household premises and make preliminary enquiry if the court requires clarification, in regard to granting ex-parte interim relief to the aggrieved person under the Act and pass an order for such home visit;

(b) after making appropriate inquiry, file a report on the other any or accounts assets,, bank emoluments, documents as may be directed by the court; (c) restore the possession of the personal effects including gifts and jewellery of the aggrieved person and the shared household to the aggrieved person; (d) assist the aggrieved person to regain custody of children and secure rights to visit them under his supervision as may be directed by the court (e

—

assist the court in enforcement of orders in the proceedings under the Act in the manner directed by the Magistrate, including orders under section 12, section 18, section 19, section 20, section 21 or section 23 in such manner as may be directed by the court.

(f) take the assistance of the police, if required, in confiscating any weapon involved in the alleged domestic violence. (2) The Protection Officer shall also perform such other duties as may be assigned to him by the State Government or the Magistrate in giving effect to the provisions of the Act and these rules from time to time. (3) The Magistrate may, in addition to the orders for effective relief in any case, also issue directions relating general practice for better handling of the cases, to the Protection Officers within his jurisdic tion and the Protection Officers shall be bound to Carry out the same. 11.

Registration

of

service

providers.—(1)

Any

voluntary

association registered under the Societies Registration Act, 1860 (21 of 1860) or a company registered under the Companie s Act, 1956 (1 of 1956) or any other law for time being in force with the objective of protecting the rights and interests of women by any lawful means including providing of legal aid, medical, financ ial or other assistance and

desirous of providing service as a service provider under the Act shall

APPENDIX 1] THE PROTECTION OF WOMEN FROM DOMESTIC VIOLENCE RULES, 2006

795

make an application under sub-section (1) of section 10 for registration as service provider in Form VI to the State Government.

(2) The State Government shall, after making such enquiry as it may consider necessary and after satisfying itself about the suitability of the applicant, register it as a service provider and issue a certificate of such registration: Provided that no such application shall be rejected without giving the applicant an opportunity of being heard.

(3) Every association or company seeking registration under sub-section (1) of section 10 shall possess the following eligibility criteria, namely:— (a) It should have been rendering the kind of services it is offering under the Act for at least three years before the date of application for registration under the Act and these rules as a service provider. (b) In case an applicant for registration is running a medical facility. or a psychiatric counseling centre, or a vocational training institution, the State Government shall ensure that the applicant fulfils the requirements for running such a facility or institution laid down by the respective regulatory or professions respective the regulating authorities institutions. (Q). In case an applicant for registration is running a shelter

home, the State Government shall, through an officer or any authority or agency authorized by it. inspect the shelter home, prepare a report and record its finding on the report, detailing that— ()

the maximum

capacity of such

shelter home

for intake

of persons seeking shelter; (i? the place is secure for running a shelter home for women and that adequate security arrangements can be put in place for the shelter home; (ii) the shelter home has a record of maintaining a other or connection telephone functional communication media for the use of the inmates; (3) The State Government shall provide a list of service providers in also various localities to the concerned Protection Officers and

the publish such list of newspapers or on its website. of (4) The Protection Officer shall maintain proper records by way the details of the maintenance of registers duly indexed, containing service providers. e for appearance 12. Means of service of notices.—(1) The notic

contain the names of in respect of the proceedings under the Act shall tic violence, the nature of the person alleged to have committed domes facilitate the identification domestic violence and such details which may of person concerned.

[APPENDIX 1

FROM DOMESTIC VIOLENCE LAW ON PROTECTION OF WOMEN

796

made in the following manner, (2) The service of notices shall be namely:— ngs under the Act (a) The notices in respect of the proceedi

r person shall be served by the Protection Officer or any othe

lf of the directed by him to serve the notice, on beha nt is Protection Officer, at the address where the responde ant stated to be ordinarily residing in India by the complain or aggrieved person or where the respondent is stated to be gainfully employed by the complainant or aggrieved person, as the case may be. (b) The notice shall be delivered to any person in charge of such place at the moment and in case of such delivery not being possible it shall be pasted at a conspicuous place on the premises. (Q For serving the notices under section 13 or any other provision of the Act, the provisions under Order V of the Civil Procedure Code, 1908 (5 of 1908) or the provisions under Chapter VI of the Code of Criminal Procedure, 1973 (2 of 1974) as far as practicable may be adopted. (d) any order passed for such service of notices shall entail the same consequences, as an order passed under Order V of the Civil Procedure Code, 1908 or Chapter VI of the Code of Criminal Procedure, 1973, respectively, depending upon the procedure found efficacious for making an order for such service under section 13 or any other provision of the Act and in addition to the procedure prescribed under the Order V or Chapter VI, the court may direct any other steps necessary with a view to expediting the proceedings to adhere to the time limit provided in the Act

(3) On

statement

on

the

date

fixed

for

appearance

of

the

‘respondent, or a report of the person authorized to serve the notices under the Act, that service has been effected appropriate orders shall be

passed by the court on any pending application for interim relief, after

hearing the complainant or the respondent, or both.

(4) When a protection order is passed restraining the respondent

from entering the shared household or the respondent is ordered to stay away or not to contact the petitioner, no action of the aggrieved person including an invitation by the aggrieved person shall be considered as waiving the restraint imposed on the respondent, by the order of the court, unless such protection order is duly modified in accordance with the provisions of sub-section (2) of section 25. ,

. 13. Appointment of Counselors.—(1) A person from the list of available Counsellors forwarded by the Protection Officer, shall be appointed as a Counsellor, under intimation to the aggrieved person .

(2) The following persons shall not be eligibl e to be gi namely:-

Counselors

in any proceedings,

appointed

as

APPENDIX 1] THE PROTECTION OF WOMEN FROM DOMESTIC VIOLENCE RULES, 2006

797

(i) any person who in interested or connected with the subject matter of the dispute or is related to any one of the parties or to those who represent them unless such objection is waived by all the parties in writing. (i) any legal practitioner who has appeared for the respondent in the case or any other suit or proceedings connected therewith. (3) The Counselors shall as far as possible be women. 14. Procedure to be followed by Counselors.—(1) The Counselor shall work under the general supervision of the court or the Protection Officer or both. (2) The Counselor shall convene a meeting at a place convenient to the aggrieved person or both the parties. (3) The factors warranting counseling shall include the factor that the respondent shall furnish an undertaking that he would refrain from causing such domestic violence as complained by the complainant and in appropriate cases an undertaking that he will not try to meet, or communicate in any manner through letter or telephone, electronic mail or through any medium except in the counseling proceedings before the counselor or as permissibly by law or order of a court of competent jurisdiction. (4) The Counselor shall conduct the counseling proceedings bearing in mind that that the counseling shall be in the nature of getting an assurance. that the incidence of domestic violence shall not get repeated. (5) The respondent shall not be allowed to plead any counter justification for the alleged act of domestic violence in counseling the fact e in that and any justification for the alleged act of domestic violenc c counseling the fact that and any justification for the act of domesti ing violence by the respondent is not allowed to be a part of the Counsel the proceeding should be made known to the respondent, before proceeding begin. (6)

The

respondent

shall furnish

an undertaking

to the Counselor

complained that he would refrain from causing such domestic violence as taking that he by the aggrieved person and in appropriate cases an under

through letter or will not try to meet, or communicate in any manner in the counseling telephone, e-mail, or through any other medium except proceedings before the Counselor. elor shall make (7) If the aggrieved person so desires, the Couns r. efforts of arriving at a settlement of the matte the Counselor shall be to (8) The limited scope of the efforts of es of the aggrieved person and arrive at the understanding of the grievanc

es and the efforts shall be to the best possible redressal of her grievanc for such redressal. focus on evolving remedies or measures (9) dispute

The Counselor by suggesting

nt shall strive to arrive at a settleme es measures for redressal of grievanc

of the of the

[APPENDIX 1

NCE LAW ON PROTECTION OF WOMEN FROM DOMESTIC VIOLE

798

into account the measures or remedies son by taking the terms for aks naa Sh coma and reformulating

ae

the settlement, wherever required.

the (10) The Counselor shall not be bound by the provisions of the or Indian Evidence Act. 1872 or the Code of Civil Procedure, 1908, the Code of Criminal Procedure, 1973, and his action shall be guided by an principles of fairness and justice and aimed at finding way to bring end domestic violence to the satisfaction of the aggrieved person and in making such an effort the Counselor shall give due regard to the wishes and sensibilities of the aggrieved person. (11)

The

Counselor

shall

Magistrate

to the

his report

submit

a

expeditiously as possible for appropriate action. (12)

dispute,

In the

event

he shall record

the

Counselor

the terms

arrives

at a resolution

of settlement

and

of the

get the same .

endorsed by the parties.

(13) The court may, on being satisfied about the efficacy of the solution and after making a preliminary inquiry from the parties and after, recording reasons for such satisfaction, which may include undertaking by the respondents to refrain from repeating acts of domestic violence, admitted to have been committed by the respondents, accept the terms with or without conditions.

(14) The court shall, on being so satisfied with the report of counseling, pass an order, recording the terms of the settlement or an order modifying the terms of the settlement on being so requested by the aggrieved person, with the consent of the parties. (15) In cases, where a settlement cannot be arrived at in the counseling proceedings, the Counselor shall report the failure of such proceedings to the Court and the court shall proceed with the case in accordance with the provisions of the Act. | (16) The record of proceedings shall not be deemed to be material on record in the case on the basis of which any inference may be drawn or an order may be passed solely based on it. (17) The Court shall pass an order section 25, only after being satisfied that the application for such an order is not vitiated by force, fraud or coercion or any other factor and the reasons for such

Satisfaction shall be recorded in writing in the order, which may include any undertaking or surety given by the respondent. 15.

Breach

of Protection

Orders.—(1)

An aggrieved rotecti

report a breach of protection order or an interim Protection Officer.

;

person

may

a

ay (2) Every report referred to in sub-rule (1) ) sh all |oe in writing by the informant and duly signed by her.

| (3) The Protection Officer shall forward a copy of such complaint with a copy of the protection order of whic h a breach is alleged to have taken place to the concerned Magistrate for appropriate orders.

APPENDIX 1] THE PROTECTION OF WOMEN FROM DOMESTIC VIOLENCE RULES, 2006

799

(4) The Aggrieved person may, if she so desires, make a complaint of breach of protection order or interim protection order directly to the Magistrate or the Police, if she so chooses.

(S) If, at any aggrieved person immediately rescue assist the aggrieved

time after a protection order has been breached, the seeks his assistance, the protection officer shall her by seeking help from the local police station and person to lodge a report to the local police authorities

in appropriate cases.

(6) When charges are framed under section 31 or in respect of offences under section 498A of the Indian Penal Code, 1860 (45 of 1860), or any other offence not summarily triable, the Court may separate the proceedings for such offences to be tried in the manner prescribed under Code of Criminal Procedure, 1973 (2 of 1974) and proceed to summarily try the offence of the breach of Protection Order under scction 31, in accordance with the provisions of Chapter XXI of the Code of Criminal Procedure. 1973, (2 of 1974). (7) Any resistance to the enforcement of the orders of the Court under the Act by the respondent or any other person purportedly acting on his behalf shall be deemed to be a breach of protection order or an interim protection order covered under the Act. (8) A breach of a protection order or an interim protection order shall immediately be reported to the local police station having territorial jurisdiction and shall be dealt with as a cognizable offence as provided under sections 31 and 32. (9)

Court

While enlarging the person on bail arrested under the Act, the may, by order, impose the following conditions to protect the

aggrieved person and to ensure the presence of the accused before the court, which may include— an order restraining the accused from threatening to commit or committing an act of domestic violence; from _ harassing, accused the preventing order (b) an telephoning or making any contact with the aggrieved person; (c) an order directing the accused to vacate and stay away from the residence of the aggrieved person or any place she is likely to visit;

(a)

(d)

an order prohibiting the possession or use of firearm or any

other dangerous weapon; (e) an order prohibiting the consumption of alcohol or other drugs; (f/ any other order required for protection, safety and adequate relief to the aggrieved person. 16. Shelter to the aggrieved person.—(1) On a request being or a service provider made by the aggrieved person, the Protection Officer charge of a shelter may make a request under section 6 to the person in

ESTIC VIOLENCE LAW ON PROTECTION OF WOMEN FROM DOM

800

[APPENDIX 1

under t the application is being made tha g tin sta y arl cle g, tin wri in e hom section 6. (2) When

est referred to in a Protection Officer makes a requ by a copy of the domestic incident sub-rule (1), it shall be accompanied or under section 10: report registered, under section 9

shelter to an aggrieved Provided that shelter home shall not refuse lodged a domestic incident person under the Act, for her not having ter in the shelter home. report, prior to the making of request for shel

home shall not (3) If the aggrieved person so desires, the shelter in the shelter home or disclose the identity of the aggrieved person against. communicate the same to the person complained eved 17. Medical Facility to the aggrieved person.—(1) The aggri make a person or the Protection Officer or the service provider may facility in request under section 7 to a person in charge of a medical . writing, clearly stating that the application is being made under (2) When a Protection Officer makes such a request, it shall be accompanied by a copy of the domestic incident report: Provided that the medical facility shall not refuse medical assistance to an aggrieved person under the Act, for her not having lodged a domestic incident report, prior to making a request for medical assistance or examination to the medical facility. the made, been has report incident domestic (3) If no person-in-charge of the medical facility shall fill in form I and forward the same to the local Protection Officer. (4) The medical facility shall supply a copy of the medical examination report to the aggrieved person free of cost. FORM

NO.

I

[See Rule 5(1) and (2) and

17(3)]

DOMESTIC INCIDENT REPORT UNDER SECTIONS 9(b) AND 37{2)(c) OF THE PROTECTION OF WOMEN FROM DOMESTIC VIOLENCE ACT, 2005 1. Details of the complainant/aggrieved person:

_ 2.

(1)

Name of the complainant/aggrieved

(2)

Age:

person:

(3) Address of the shared household: (4) Present Address: (5) Phone Number, if any: Details of Respondents: Relationship with the

aggrieved person

Address

Telephone No., | ifany — |

APPENDIX 1] THE PROTECTION OF WOMEN FROM DOMESTIC VIOLENCE RULES, 2006

3.

801

Details of children, if any, of the aggrieved person: (a)

Number of Children:

| (b) Details of Children: With whom a present residing

Date, place | Person who and time of caused

violence

Types of Violence , ;

domestic

Baharke.

Physical Violence

violence

Causing hurt of any kind (Please specify)

(i) Sexual Violence Please tick mark ajv } the column applicable Forced sexual intercourse

Forced

to watch

pornography

or

other obscene material

Forcibly others

using

you

to _ entertain

Any other act of sexual nature, abusing, humiliating, degrading or otherwise violative of your dignity (Please specify details in the space provided below)

(ii)

|

verbal and emotional abuse OJ Accusation/aspersion on character or conduct, etc.

your

|

Insult for not bringing Dowry etc.

|

Insult for not having a male child.

|

Insult for not having any child.

| |

humiliating Demeaning, undermining remarks/statement.

}

|

Ridicule

|

Name calling

| |

Forcing oe te Oe

college

or

you to not attend school, or any other educational

|

institution.

|

Preventing you from taking up a job.

|

|

agPreventing House.

you

from

leaving

the

~~

[APPENDIX 1

M DOMESTIC VIOLENCE LAW ON PROTECTION OF WOMEN FRO

802

oe

[]

Preventing you from particular person.

=

meeting

C1) Forcing you to get marricd against your will.

person of your choice.

|

of

()

Forcing you to marry a person his/their own choice.

&

Any other verbal or emotional abuse. in the space specify (Please provided below).

(iii) Economic violence CL) Not providing money for maintaining, you or your children.

L]

Not providing medicine, etc., children.

food, for you

clothes, or your

Forcing you out of the house you live in.

Preventing you from accessing or using any part of the house. Preventing or obstructing you from Carrying on your employment. Not

allowing

you

to take

up

an

employment.

Non-payment of rent in case rented accommodation.

of a

Not allowing you to use clothes or articles of general household use.

ier wee see aeSelling or

pawing your stridhan or any other valuables without informing you and without your consent. Forcibly taking away income or wages etc.

your

salary,

Disposing your stridhan

Non-Payment of other bills such as electricity, etc. Any other cE} §) ERLE

economic violence (Please specify in the provided below)

space

APPENDIX 1] THE PROTECTION OF WOMEN FROM DOMESTIC VIOLENCE RULES. 2006

(iv)

803

Dowry related harassment specify.

)

| (v)

Any other detail with dowry, please specify.

x

regard

to

oat

a ny other information regar ding acts of domestic violence against

you ory our children.

|

(Signature or thumb impression of the complainant/aggrieved person) 5.

List of documents attached

.

Name of document

—

“ae

Any other detail

in a a he Se ah — — a. ao ae =— er 2S so = 6.

Order

Domestic Sl. No.

that

you

need

under

the

Protection

of Women

from

Violence Act. 2005. Orders

Protection order under Section 18 2.

i

|Residence order under Section 19

Maintenance order under Section 20 4

Custody order under Section 21 |Compensation order under Section 22

5.

Any other order (specify)

7. pene

——

ia

Assistance that you need Assistance available

Yes/No /

|

,

:

Nature of Assistance

|

LENCE LAW ON PROTECTION OF WOMEN FROM DOMESTIC VIO

[APPENDIX 1

Shelter home Medical facilities

Legal aid l

Instructions

8.

ration of a for the Police Officer a ssisting in regist

Domestic Incident Report: oses an offence Wherever the information provided in this Form discl e officer shall under the Indian Penal Code or any other law, the polic initiate (a) inform the aggrieved person that she can also

criminal proceedings by lodging a First Information Report under the Code of Criminal Procedure,

1973.

(b) If the aggrieved person does not want to initiate criminal proceedings, then make daily dairy entry as per the information contained in the domestic incident report with a remark that the aggrieved person due to the intimate nature of the relationship with the accused wants to pursue the civil remedies for protection against domestic violence and has requested that on the basis of the information received by her, the matter has been kept pending for appropriate enquiry before registration of an FIR. (c) If any physical injury or pain being reported by the aggrieved person, offer immediate medical assistance and get the aggrieved person medically examined. (Counter Signature of Protection Officer/Service Provider)

Place: Date:

Name:

Address: (Seal) Copy forwarded to:Local Police Station Service Provider/Protection Officer

Aggrieved person

> is Pie Magistrate

FORM

NO. II

{See Rule 6(1)]

APPLICATION — fo)

TO THE MAGISTRATE UNDER SECTION 12 OF THE OF WOMEN FROM DOMESTIC VIOLENCE ACT, 2005

The Court of Magistrate

eee

eee eee ee eee

ee

ee

DOP

eee

ee

see

ee

ey

ener

APPENDIX 1] THE PROTECTION OF WOMEN FROM DOMESTIC VIOLENCE RULES, 2006

805

Application under section............ of the Protection of Women from Domestic Violence Act, 2005 (43 of

2005) SHOWETH: 1. That the application under section........... of Protection of Women from Domestic Violence Act, 2005 is being filed alongwith a copy of Domestic Incident Report by the:

(a) (b)

Aggrieved person: Protection Officer:

is O

(c)

Any other person on behalf

of the aggrieved person

O

(tick whichever is applicable) 2. It is prayed that the Honble court may take cognizance of the complaint/Domestic Incident Report and pass all/any of the orders, as deemed necessary in the circumstances of the case, (a) Pass protection orders under Section 18 and/or (b)

Pass residence orders under Section

19 and/or

Direct the respondent to pay monetary relief under Section 20 and/or (d) Pass orders under Section 21 of the Act and/or (e) Direct the respondent to grant compensation or damages under Section 22 and/or

(c)

(f) Pass

3.

such

interim

orders

as

the

court

deems

just and

proper; (g) Pass any orders as deems fit in the circumstances case. Order required:

(i) Protection Order under Section

0

of the

18

Prohibiting acts of domestic violence by granting an injunction against the Respondents from repeating any of the acts mentioned

in terms of column

4(a)/(b)/(c)/(d)/(e)/(/(g)

of the

application the entering from (s) Respondent Prohibiting school/college/ workplace Prohibiting from stopping you from going to your place of employment the entering from (s) Respondent Prohibiting school/college/any other place of your children Prohibiting from stopping you from going to your school ent Prohibiting any form of communication by the Respond with you ol Prohibiting alienation of assets by the Respondent Goeth Wosteit

LAW ON PROTECTION OF WOMEN FROM DOMESTIC VIOLENCE

O O O (ii)

[APPENDIX 1

Prohibiting operation of joint bank lockers/accounts by the Respondent and allowing the aggrieved person to operate the same. the from away to stay Respondent the Directing dependants/relatives/any other person of the aggrieved person to prohibit violence against them Any other order, please specify: Residence Order under section

19

An order restraining Respondent(s) from Dispossessing or throwing me out from the shared household Entering that portion of the shared reside

household

in which

|

Alienating/disposing/encumbering the shared household Renouncing his rights in the shared household An order entitling me continued access to my personal effects An order directing Respondent(s) to Remove himself from the shared household

SUOLRaUD OOO Secure same level of alternate accommodation or pay rent for the same

O (iii)

Any other order, Please specify: Monetary reliefs under section 20

0) Loss of earnings, amount Claimed O Medical expenses, amount claimed O) Loss due to destruction/damage or removal of property from the control of the aggrieved person, Amount claimed

O

Any other loss or physical or mental ciause 10(d) Amount

injury as specified in

claimed

Total Amount

claimed

OO Any other order, please specify (iv)

Monetary reliefs under Section 20

Directing the Respondent to pay the followin monetary relief:

expenses as P

Food, cloths, medications and other basis necessities, Amount

per month

School fees and related expenses Amount Household expenses Amount Any other expenses UC) st Loree Amount Total

per month per month per month per month

APPENDIX 1] THE PROTECTION OF WOMEN FROM DOMESTIC VIOLENCE RULES, 2006

807

O) Any other order, please specify (v) Custody Order under section 21 Direct the Respondent to hand over the custody of the child or children to the—

C) Aggrieved Person (vi)

CL) Any other person on her behalf, details of such person—— Compensation order under section 22

(vii) Any other order, please specify 4.

Details of previous litigation, if any

(a) C Under the Indian Penal Code, sections ....Pending in the court of

L) Disposed of, details of relief (b) LC) Under Cr. P.C, sections.......... Pending in the court of CL) Disposed of. details of relief (c) LJ Under the Hindu Marriage Act, 1955, sections.................... ona, eal Pending in the court op———_—_—_-

CL) Disposed of. details of relief (d) ( Under the Hindu Adoptions and Maintenance Act, 1956, SCC HORM of-

es. - 2.5. Zannoo oneePending in the court

(J Disposed of, details of relief (e) LJ Application for maintenance, under section under —————————- Act Interim migtitenmance Rs. .22..,............. p.m. Mairiterigime mrerlted RSP rn... nee p.m. (f) CD) Whether Respondent was sent to Judicial Custody. L) For less than a week LJ For less than a month Oe

1) For more than a month Specify period (g) Any other order Prayer:

It is, therefore, most respectfully prayed that this Honble Court be pleased to grant the relief (s) claimed therein and pass such order or orders other order as this Honble Court may deem fit and proper under the given facts and circumstances of the case for protecting the aggrieved person from domestic violence and in the interest of justice. Complainant/Aggrieved person through Place: Dated: Counsel

Verified

VERIFICATION cvctdedy place) T EtYioeseede tis eONA

on

this

day

[APPENDIX 1

DOMESTIC VIOLENCE LAW ON PROTECTION OF WOMEN FROM

808

hing the best of my knowledge and not application are true and correct to therefrom. material has been concealed Deponent

Countersignature of Protection Officer with date.

FORM

NO. III

[See Rule 6(4) and 7]

AFFIDAVIT UNDER SECTION 23 (2) OF THE PROTECTION WOMEN FROM DOMESTIC VIOLENCE ACT, 2005

OF

> EE IN THE COURT OF ci ciccin.........0..scanspeeemamesy ie: tte: ea |

OF:

IN THE MATTER

Cae. a

& Others ... VERSUS

COMPLAINANT

C—O

& Others ...

RESPONDENT

AFFIDAVIT ee ee

— a —

Preset

£

a

W/o Mr lll ee eee DD R/O. .\s..tcGe.-........ — Se

OT

EE

lh

;

WeslGing Al ..locewies..........o.cssnneenness do hereby solemnly affirm

and declare on oath as under:

1. That I am the Applicant in the accompanying Application a a filed for myself and for my daughter/son. = ihat l ali Ge matural gudiaees Ol..........ccsemeeeeiees+s.......socsmume 3. That being conversant with the facts and circumstances of the case I am competent to swear this affidavit. 4. That the Deponent had been living with the Respondent/s a

ll

lle

fel eee

5. That the details provided in the present application for the pgrant ofneligigtander secti@nm{s)...........c. SGnee.as.... cere have been entered into by me/at my instructions.

6. That the contents of the application have been read over, explained to me in English/Hindi/any other local language BE ACASC Sieh concxcccadapuddieticsess.cocscccs )

7. That the contents to the said application may be read as part of this affidavit and are not repeated herein for the sake of brevity. 8. That the applicant apprehends repetition of the acts of domestic violence by the Respondent(s) against which relief is sought in the accompanying application.

APPENDIX 1] THE PROTECTION OF WOMEN FROM DOMESTIC VIOLENCE RULES, 2006

9.

That the Respondent has threatened the Applicant that SETS

HHT

SHEESH

POSES

SHEE

SHES

SH SHH

HEHS

POSS

SORE

SEH

SPHERE

10.

11.

809

TES EERE

EEE

EEE

HEHE

THERE

EHH

EEEH

EEE

HEHE

EEE

SHES

ESET

HEHE

TESS

HHEHEEEE

HEHE

EEE

EEE

THEE EE

SESE

EEE

SEES

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EEE

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EEHEEEEEEEEE EEE EEE

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That the reliefs claimed in the accompanying application are urgent in as much as the applicant would face great financial hardship and would be forced to live under threat of repetition/escalation of acts of domestic violence complained of in the accompanying application by the Respondent(s) if the said reliefs are not granted on an ex-parte ad-interim basis. That the facts mentioned herein are true and correct to the best of my knowledge and belief and nothing material has been concealed therefrom. DEPONENT VERIFICATION

That the contents of the above affidavit are correct to the best of my knowledge and belief and no part of it is false and nothing material has been concealed threfrom. DEPONENT FORM NO. IV [See Rule 8(1)(ii)] INFORMATION ON RIGHTS OF AGGRIEVED PERSONS UNDER THE PROTECTION OF WOMEN FROM DOMESTIC VIOLENCE ACT, 2005 1. If you are beaten up, threatened or harassed in your home by a person with whom you reside in the same house, then you are facing domestic violence. The Protection of Women from Domestic Violence Act, 2005, gives you the right to claim protection and assistance against domestic violence. 2. You can receive protection and assistance under the Act, if the persons(s) with whom you are/were residing in the same house, commits any of the following acts of violence against you or a child in your care and custody 1. Physical Violence: For example

(iii) Hitting (iv) Biting (v) Kicking (vi) Punching

[APPENDIX 1

VIOLENCE LAW ON PROTECTION OF WOMEN FROM DOMESTIC

810

(vii)

(viii)

Pushing, Shoving or

(ix) Causing bodily pain or injury in any other manner.

2.

Sexual Violence:

For example i) Forced sexual intercourse; (ii) Forces you to look at pornography or any other obscene

pictures or material:

(iii) Any act of sexual nature to abuse. humiliate or degrade

you, or which is otherwise violative of your dignity or any other unwelcome conduct of sexual nature;

(iv)

Child sexual abuse.

3. Verbal and Emotional violence:

For example (i) Insults; (ii) Name-calling; (iii) Accusations on your character conduct etc;.

(iv) Insults for not having a male child; (v) Insults for not brining dowry etc; (vi) Preventing you or a child in your custody from attending (vii) (viii) (ix) (x)

school, college or any other educational ingeyeon: Preventing you from taking up a job; Forcing you to leave your job; Preventing you or a child in your custody from leaving the house; Preventing you from meeting any person in the normal course of events;

(xi) Forcing you to get married when you do not want to

marry (xii) Preventing you from marrying a person of your own choice (xiii) Forcing you to marry a particular person of his/their own

(xiv)

(xv) 4.

Economic

choice;

Threat to commit

suicide:

Any other verbal or emotional abuse. Violence:

For example (i) Not providing you money

children

for maintainin

(ii) Not providing food. clothes. medicin

€ you or your

es etc, you or your children, (iii) Stopping you from carrying on your employment (iv) Disturbing you in carrying on your employment

APPENDIX 1] THE PROTECTION OF WOMEN FROM DOMESTIC VIOLENCE RULES, 2006

(v) (vi) (vii) (viii) (ix)

811

Not allowing you to take up an employment or, Taking away your income from your salary, wages etc: Not allowing you to use your salary, wages etc, Forcing you out of the house you live in Stopping you from accessing our using any part of the house,

(x) Not allowing use of clothes, articles or things or general household use, (xi) Not paying rent if staying in a rented accommodation, etc. 3. If an act of domestic violence is committed against you by a person/s with whom you are/were residing in the same house, you can get all or any of the following orders against the person(s) (a) Under Section 18:

(i) To Stop committing any further acts of domestic violence on you or your children, (ii) To give you the possession of your stridhan, jewellery, | clothes etc. (iii) Not to operate the joint bank accounts or lockers without permission of the court. (b) Under Section 19: (i) Not to stop you from residing in the house where you were residing with the person/s (ii) Not to disturb or interfere with the house where your were resigning with the court. (iii)

Not to dispose of the house in which you are residing

(iv)

If your residence is a rented property then either to ensure payment of rent or secure any other suitable alternative accommodation which offers you the same security and facilities as earlier residence, (v) Not to give up the rights is the property in which your are residing without the permission of the court (vi) Not to take any loan against the house/property in which you are residing or mortgage it or create any other financial liability involving the property, (vii) Any or all of the following orders for your safety requiring the person/s to

(c) General order: (i) Stop the domestic violence complained /reported (d) Special orders: (i) Remove himself/stay away from your place of residence or workplace (ii) Stop making any attempts to meet you, (iii) Stop calling you over phone or making any attempts to communicate with you by letter, email etc;

812

DOMESTIC VIOLENCE LAW ON PROTECTION OF WOMEN FROM

[APPENDIX 1

or forcing you to (iv) Stop talking to you about marriage choice or meet a particular person of his/ their marriage;

en, or any (v) Stay away from the school of your child/childr other place were you and your children visit; (vi)

Surrender

possession of firearms,

any other weapon

or

any other dangerous substance; (vii) Not to acquire possession of firearms, any other weapon or any other dangerous substance and not to be in possession of any similar article; (viii) Not to consume alcohol or drugs with similar effect which led to domestic violence the past; (ix) Any other measure required for ensuring your or your childrens safety. (e) An order for interim monetary relief under section 20 and 22 including (i) Maintenance for you or your children (ii) Compensation for physical injury including medical expenses, (iii) Compensation for mental torture and emotional distress, (iv) Compensation for loss of earning (v) Compensation for loss caused by destruction, damages removal of any property from your possession or control. Note I. Any of the above relief can be granted on an interim basis, as soon aS you make a complaint to domestic violence and present your application for any of the relief before the court. II. A complaint for domestic violence made in From I under the Act is called a "Domestic Incident Repot"

4. rights;

If you are a victim of domestic violence, you have the following (i) The assistance of a protection officer and service providers to inform you about your rights and the relief which you can get under the Act under section 5. (ii) The assistance of protection officer service providers of the officer-in-chare of the nearest police station to assist you in registering your complaint and filing and application for relief under section 9 and 10 (iii) To receive protection for your and your children form acts of domestic violence under section 18. (iv) You have right to measures and orders protecting you against the particular dangers or insecurities you or your child are facing (v) To stay in the house where you suffered domestic violence

APPENDIX 1] THE PROTECTION OF WOMEN FROM DOMESTIC VIOLENCE RULES, 2006

813

and to seek restraint on other persons residing in the same house, from interfering with or disturbing peaceful enjoyment of the house and the maternities, facilities therein by you or your children under section 19. (vi) To regain possession of your stridhan, jewellery, clothes, articles of daily use and other household goods under section 18.

(vii) To get medical assistance, shelter, counselling and legal aid under sections 6, 7, 9 and 14. (viii) To restrain the person committing domestic violence against you from contacting you or communicating you in any manner under section 18.

with

(ix) To get compensation for any physical or mental injury or any other monetary loss due to domestic violence under section 22. (x) To file complaint or applications for relief under the Act directly to the court under sections 12, 18, 19, 20, 21, 22 and 23. (xi) To get the copies of the complaint filed by you, applications made by you, reports of any medical or other examination that you or your child undergo. (xii) To get copies of any statements recorded by any authority in connection with Dimestic Violence. (xiii)

The

assistance

of the Protection

Officer

or the Police

to

rescue you from any danger. 5. The person providing the from should ensure that the details of all the registered service providers are entered in the manner and space

provided below. The - following is the list of service providers in the area: Contact Details

FORM NO. v [See Rule 8(1)(iv)] SAFETY

PLAN

1. When a Protection Officer, Police Officer or provider is assisting the woman in providing details details in columns C and D are to be filled in by the as the Police Officer or any other service provider,

any other service in this form, then Protection Officer, case may be, in

consent. consultation with the complainant and with her

LAW ON PROTECTION OF WOMEN FROM DOMESTIC WIOLENCE

$14

direg 2. The aggriewed person in case of approaching the court may herself provide details in columms C and D.

3 If any aggrieved person leaves columns C and D blank « approaches the court directly, then details in the said columns are to

prewided by the Protection Officer to the court, in consultation with t t t. an consen inher and with compla

Atempis _

by comunit|ga the

Respondent

& |

Violent —

aon

=environ | ios a iti

ae })

Mental

Tuama,

{c) Any other, speniily

i icthiid/chidren awing 2 male child, (id) Any other, specily | accusation of

mad

urhastityetc

fay

was

. Specty

APPENDIX 1} THE PROTECTION OF WOMEN FROM DOMESTIC VIOLENCE RULES, 2006

to cause harm to the/fear aggrieved person/her|(b) Mental childrer/Parents/relati |pain

when

do not want to/|(b)

Mental

(a) trauma,|(b)

forcing not to marry a|pain

Repetition Mental

trauma,

pain ing\(c) Any other

Escalation Fear of injury Any other, specify fear

of

abusive

andjafter

Physical vioience consuming the

Repondent due to|(b) Abusive behaviour substance abuse after Consuming the (b) Deprived of|same leading a normal life (c) Non-payment of

expenses (d) Any other, specify

of

criminal|(a) Constant fear of|(a) Respondent has a violence tendency to violate law (b) Fear of revengejand is likely to flout by the Respondent orders passed by the court against him (b) Respondent might cause harm to. the aggrieved persor/children for filing any further proceedings (c) Any other, specify

Not provided money |(a) Driven towards maintenance, |vagrancy ituti

Have to face great towareds|(a) and|hardship to fulfill the needs and requirements of her child/children and herself (b) Any other, specify

815

LAW ON PROTECTION OF WOMEN FROM DOMESTIC VIOLENCE

816

[APPENDIX 1

Not able to fulfill) (a) Have to face great isturbed pes basic needs for/hardship to fulfill the = take up

:

in

the| children (b) Any other, specify |and herself

ccessing or using any| your children oa ef the house or|(b) Being restricted to/(b) have to face great

revented —— .

particular

in providing area of the|hardship shelter for her

case of a _ rented|leave the same accommodation

by the;(b) Facing such hardship

(b)

Feat

receiving

of the

again

(c) Any other, specify court order

order,

specify

Signature

Signature

Aggrieved person

Service Provider/Protection Officer/Police Officer

APPENDIX 1] THE PROTECTION OF WOMEN FROM DOMESTIC VIOLENCE RULES, 2006

FORM FORM

|

NO. VI

[See Rule 11 (1)] FOR REGISTRATION AS SERVICE

SECTION

PROVIDERS

10 (1) OF THE PROTECTION OF WOMEN DOMESTIC VIOLENCE ACT, 2005

_

Name of the applicant

| pd

Address

|

e-mail address, ifany

alongwith

Phone

817

UNDER

FROM

Te