Author(s) – Himank Tyagi & Ansh Kumar (Gujrat National Law University)
In recent time due to COVID lockdown we have seen that there has been a rise in number of case relating to Domestic Violence. However, many authorities believe that the number of the cases of domestic violence may be much higher than actually reported. This can be because of lack of knowledge or due to the lockdown. In this paper the authors try to look into the following question: What is domestic violence? How has the COVID situation affected the situation of domestic violence in India? We will also look into the Protection of women from domestic violence act 2005 and in what aspects it is lagging. Further, we will see that how numerous judgments of the Honorable Supreme Court and various High Courts have increased the scope of domestic violence act by including the people in live in relations and protecting them under this act as well as recognizing the right to property of married women under this act.
1. WHAT IS DOMESTIC VIOLENCE?
If we go into literal translation of the word ‘domestic violence’ then it would be aggression within the household by one person who is related to victim in any sense causes harm to victim can be called domestic violence. Let us see what domestic violence means in different countries. The definition provided by U.S Department of justice domestic violence is as follows “The term “domestic violence” includes felony or misdemeanor crimes of violence committed by a current or former spouse or intimate partner of the victim, by a person with whom the victim shares a child in common, by a person who is cohabitating with or has cohabitated with the victim as a spouse or intimate partner, by a person similarly situated to a spouse of the victim under the domestic or family violence laws of the jurisdiction receiving grant monies, or by any other person against an adult or youth victim who is protected from that person’s acts under the domestic or family violence laws of the jurisdiction.” If we expand this definition the following points come out as follows:-
- Domestic violence includes any act that is dangerous and harms the person emotionally, physically or mentally.
- Domestic violence can be caused by current or former spouse or intimate partner of the victim.
- Any person who is related to the former spouse can perpetuate an act of domestic violence.
- Or any person who has a child with the victim.
Now let us see the definition provided by Protection of Women from Domestic Violence act 2005. “Definition of domestic violence. —For the purposes of this Act, any act, omission or commission or conduct of the respondent shall constitute domestic violence in case it: –
(a) harms or injures or endangers the health, safety, life, limb or well‑being, whether mental or physical, of the aggrieved person or tends to do so and includes causing physical abuse, sexual abuse, verbal and emotional abuse and economic abuse; or
(b) harasses, harms, injures or endangers the aggrieved person with a view to coerce her or any other person related to her to meet any unlawful demand for any dowry or other property or valuable security; or
(c) has the effect of threatening the aggrieved person or any person related to her by any conduct mentioned in clause (a) or clause (b); or
(d) otherwise injures or causes harm, whether physical or mental, to the aggrieved person.”
This definition though very similar to the American definition, is not restrictive as it includes physical, mental, verbal and economic abuses. It also includes any violence or threat of violence related to dowry. This is punishable under this act and it acts as an additional protection against dowry with regards to Dowry Prohibition Act 1961. But in the present definition the important part is inclusion of physical abuse, sexual abuse, verbal and emotional abuse and economic abuse so let us understand what are these terms:
- Physical abuse: Physical abuse means any act or conduct which is of such nature which causes bodily pain or danger to limb, body or life of person can be called physical abuse.
- Sexual abuse: Sexual abuse means any act of sexual nature which humiliate, abuses, degrades the dignity of women is sexual abuse.
- Verbal and Emotional abuse: This includes calling of name to the victims or it can say things in regard of not having a child or body shaming also keeping person away from their parents can amount to verbal and emotional abuse.
- Economic abuse: Economic abuse is when a person deprives the aggrieved person of all the property the person is entitled to by law which includes any payment that is needed for maintenance of the person and the child it can include paying of rent. Economic abuse also includes unlawfully disposing of the property that aggrieved person can come under economic abuse.
If we compare it with the definition with that is provided by U.S Department of Justice we see that Indian definition includes economic abuse which is absent in the definition provided by U.S Department of Justice Further both the definitions lack technological abuse which includes online abuse as this can also cause verbal and emotional abuse and need immediate attention of Policy makers of both the countries.
2. OVERVIEW OF PROTECTION OF WOMEN FROM DOMESTIC VIOLENCE ACT 2005
The Protection of Women Fromm Domestic Violence Act 2005 (The Act) came into force in 2005 its main objective was to give more protection of right to women who have suffered violence of any kind within the family. In this section authors will give an overview regarding The Act and what are the drawbacks it suffered.
The overview of the act is as follows: –
- Section 4 of the act provides that any person who feels in good faith that they are a victim of domestic violence can make a complaint to protection officers as appointed by center or state government.
- Section 5 to 7 talks about the duty of Protection officers, Magistrate, Medical officers and right of the victim to seek a shelter home. Under these sections When any concerned authority that is mentioned above receive any complaint relating to domestic violence, they will immediately inform the victim about their rights like availability of service of Protection officer or to seek free legal advice. Furthermore they can also seek the service of shelter home and If the victim at point wants to seek medical advice, they can ask the medical officer to provide the medical facilities.
- Section 8 and 9 talks about the appointment and duties of the Protection officers. The appointment of Protection officers shall take place as and when the State government cones out with the notification and The Act also mentions that State Government should try that protection officer should be a woman. Also, the work of protection officer incudes bringing the incident of violence in notice of magistrate and making any application in format prescribed under section 12 of the act for relief sought by the aggrieved person.
- Section 11 talks about duty of government to provide for awareness programs and provide protocol for delivery of services to women.
- Under section 13 to 23 a Magistrate is empowered to pass orders like monitory order, custody order residence and ex facto orders or compensatory orders.
Though the Protection of Women from Domestic Violence Act 2005 provides a wide range of option for protection of women from domestic violence but still it suffers from setbacks let us look at various setbacks that the act suffers from: –
- Missing, insufficient data for the prevention of domestic violence act: Although the Domestic Violence Act law was enacted in 2005, the National Crime Record Bureau (NCRB) only began collecting data under the legislation in 2014. Today, data collected by the NCRB, contains only criminal breaches of court orders such as breach of a protection order issued by the court while the case continues. This does not include domestic abuse cases reported under Indian Penal Code. Further the Cases concerned with protection from relatives and husband, and maintenance in domestic violence cases, are not recorded by the NCRB but registered directly with the court. Despite repeated attempts by women’s rights organizations, this data on court proceedings was left inaccessible.
- Misuse of the Act: The 2005 Women’s Protection from Domestic Violence Act suffers from inherent shortcomings that encourage women to exploit their rights and men to fear being punished under the law without any rhyme or intent. This was observed by The Madras High Court Bench. The noteworthy drawback in this law is that it lends itself to such simple abuse that it would be difficult for women to avoid the urge to teach their male relatives a lesson, and to file frivolous and false lawsuits. One can be certain that there is something sinister about a law when it intimidates and instils fear in innocent people. When a person who has not committed any crime starts to fear punishment under the provisions of a law, it will certainly create panic amidst men. It has now become common for women to file cases under the Domestic Violence Act. For this purpose, a fair and unprejudiced legislation is required to protect actual victims of domestic abuse regardless of gender. A similar pattern of misuse was found in the Indian Penal Code in the case of Section 498A. It led the Supreme Court to name such abuse ‘legal terrorism.”
- Crime statistics do not represent real domestic violence situation: In 2015, the NCRB filed more than 113,000 cases under the section titled “cruelty by husband and relatives,” up 80 percent from 2006 when it filed about 63,000 cases. The rise in the number of cases may be due to an actual rise in violence or to an increase in reporting of such crimes, as awareness of the law is increasing, and more women are empowered to report violence to the police, rather than an increase in crime numbers. Whether National Crimes Statistics Bureau data indicate real patterns in domestic abuse is unclear. According to the National Family Health Survey-4 conducted over 2015-16, nearly 30 per cent of married Indian women between the ages of 15 and 49 years reported witnessing sexual harassment at least once.
3. JUDGEMENTS RELATING TO DOMESTIC VIOLENCE
In recent times especially after passing of the Protection Of Women from Domestic Violence Act 2005, there have been many judgments that have increased the rights of women and have broadened the scope of what constitute domestic violence or not. In the case D. Veluswamy v. D. Patchaiammal The question before the bench was:
- Are women who are in Live in relationship safeguarded under Domestic Violence act?
It was held that though the live-in relation would not lead to relation of marriage, however a person can take benefit from the domestic violence act if they satisfy the following conditions:
(a) The couple must consider themselves to be akin to spouses in society.
(b) To marry they must be of legal age.
(c) They shall otherwise be eligible, even unmarried, to enter into a legal marriage.
(d) They would have happily cohabited and for a substantial amount of time stood out to the world as being akin to spouses.
It was further noted that in order to obtain such benefits from such relationship, the conditions stated above must be met and proof must be given for themselves. If a man is primarily used for sexual purposes and/or as a servant, it will not be a relationship in the nature of marriage as the term used is not live-in relationship in the nature of marriage, but a relationship in the nature of marriage. It was further challenged in Bombay High court in case of Reshma Begum v. State of Maharashtra & anr. Here the question before the Honorable court was that whether or not all the live-in relations are protected under the Domestic violence act while giving the judgment, the High court noted that not all live-in relations can be brought under the ambit of the Act and only those relationship governed by that provision in the nature of marriage will be protected by the it. An adulterous relationship will be protected under section 494 of Indian Penal code. Another interesting case is that of Roma Rajesh Tiwari vs Rajesh Dinanath Tiwari here the question of law was that did women have a right to live in her matrimonial house under the Domestic violence act or not. The court held that wife under section 2 (S) of the Domestic violence act has the right to live in matrimonial house even if the property is owned by the husband. The judgment also mentioned that even if the ownership of house was with another person of the family, then also under section 19 of the Domestic Violence act the women has the full right to live in that house. Further in case of Shachi Mahajan vs Santosh Mahajan the question of law that had arisen was that whether the daughter in law has any right to compensation or alternate residence if her property is sold by her in laws? While answering to this question the court stated that the daughter in law has a right to get compensation and here an alternative residence was provided. However, in case of Ashish Dixit vs. State of UP & Anr there were some restrictions put. Here,the question of law that came was that can a women include all the relatives in the complaint registered under Domestic violence act? The court said that even if there was a joint family the women cannot bring complaint against all the persons residing or related to the husband or his parents. She can bring action against the husband and his parents.
4. HOW HAS COVID-19 IMPACTED THE CASES OF DOMESTIC VIOLENCE IN INDIA?
When the lockdown was imposed in March 2020 in India people have been stuck in their houses this has caused a lot of problem in lives of people. This has led to rise in domestic violence cases and has caused the cases to be at 10 years high. Delhi police in one of its report stated that they received around 2466 calls on the number which triggers the Emergency Response Support System of the state police. Out of these calls 600 were classified as women abuse 23 were of rape calls and rest were of domestic violence. Even Punjab State women commission is receiving around 30 calls daily regarding domestic violence National Commission for women received 2043 complaints in June which is the highest in last 8 months though the commission believes that actual number may be higher than what the present data shows The reason that many women are not registering complaint could be due to the Corona virus as they can’t go to shelter homes and police work has increased due in the present COVID19 situation so they cannot go to investigate the matter. This creates fear in minds of people as they cannot ask for help from anyone. To protect the fundamental rights of women and protect them against domestic violence the Delhi High court has issued guidelines to the central government to have a WhatsApp number specifically for making complaint against domestic violence and to act against the complaint immediately.
The problem arises when the male member loses the job and female still has their jobs so the male member tries to exert force by sexually assaulting women this is done so that male member of the family maintains a superior position in the household.
Even though there are increasing in number of cases of domestic violence there is a reduction in number of cases in some states such as Rajasthan, Madhya Pradesh and Telangana. Increased number of domestic violence also causes mental health problems like depression, seizure, anxiety and phobias among women this is one of the reasons that women suffer more with mental illness than men. Domestic violence is harmful for children as it effects the mental health of child and leads problems like bed wetting, lower of self-esteem, difficulty in making friends. Addiction to alcohol and smoking are common problem with children exposed to domestic violence. It is seen that the children observing domestic violence at their homes can also become abusers themselves in future. So we should also bring a protection for child from abuse and not spoil their future.
5. STEPS TO PREVENT DOMESTIC VIOLENCE DURING COVID-19 TIMES
Few steps to prevent Domestic violence during COVID-19 times are: –
- Control on media: In India there is no censoring on social media content and there are contents which glorifies sexual assault so there should be censoring. This can lead to lowering of Domestic Violence.
- Amending the already existing laws: During COVID-19 times we have seen that government has failed to implement the Dowry Protection Act and Protection of Women from Domestic Violence Act 2005. So, if the government implement these acts, then there are chances that the domestic violence might reduce.
- Policy during Covid times: Government and policy makers should include essential services such as Health services, etc. They should be provided with funds and spread awareness about response towards the case of domestic violence.
- Gender Sensitization: Gender sensitization by parents and teachers is needed regarding what is right and what is wrong.
In recent times we have seen that Domestic violence are increasing due to lockdown and people are unable to go to police station due to various reasons. Further if we see that the data coming up of domestic violence might be very less as people might feel that their reputation will be lowered. Further we have seen that there has been many backdrops of Protection of Women From Domestic Violence Act 2005 and how the courts have interpreted it to widen it scopes and in the end we have discussed how to prevent domestic violence during domestic violence. Further I would like to recommend that government should give more attention towards increasing awareness among women about their rights and what remedies they have against the wrong happening against them and also, we should educate male member of society to not misbehave with women so that the society becomes a better place to live.
 Lisa N Sacco, Defining Domestic Violence CRS INSIGHT (2019), https://fas.org/sgp/crs/misc/IN11085.pdf (last visited Aug 12, 2020).
 The Protection of Women from Domestic Violence Act 2005 §3 No. 23 Acts of Parliament 2005 (India).
 Dowry Prohibition 1961 No. 28 Acts of Parliament 1961 (India).
 Supra at 2.
 Supra at 2.
 Supra at 2.
 Supra at 2.
 Supra at 1.
 Supra at 1.
 Supra at 2.
 Supra at 2.
 Supra at 2.
 The Protection of Women from Domestic Violence 2005 §5 No. 23 Acts of Parliament 2005 (India).
 10 Years of Domestic Violence Act: Dearth of Data, Inadequate Implementation, Delayed Justice, Archive.indiaspend.com (2017), https://archive.indiaspend.com/cover-story/10-years-of-domestic-violence-act-dearth-of-data-inadequate-implementation-delayed-justice-85613 (last visited Aug 23, 2020).
 Supra at 14.
 Supra at 14.
 Mohamed Imranullah, Domestic Violence Act prone to misuse, says High Court, The Hindu, 2015, https://www.thehindu.com/news/cities/Madurai/domestic-violence-act-prone-to-misuse-says-high-court/article7331523.ece (last visited Aug 24, 2020).
 D. Veluswamy v. D. Patchaiammal (2010) 10 SCC 469.
 Reshma Begum v. State of Maharashtra & anr 2018ALLMR(Cri)3955.
 Roma Rajesh Tiwari vs Rajesh Dinanath Tiwari, 2018(2) ABR517.
 Shachi Mahajan vs Santosh Mahajan, 2019IAD(Delhi)679.
 Ashish Dixit vs. State of UP & Anr (2013) 4 SCC 176.
 Vignesh Radhakrishnan, Sumant Sen & Naresh Singaravelu, Data | Domestic violence complaints at a 10-year high during COVID-19 lockdown, The Hindu, 2020, https://www.thehindu.com/data/data-domestic-violence-complaints-at-a-10-year-high-during-covid-19-lockdown/article31885001.ece (last visited Aug 25, 2020).
 Dhamini Ratnam, Domestic violence during Covid-19 lockdown emerges as serious concern, Hindustan Times, 2016, https://www.hindustantimes.com/india-news/domestic-violence-during-covid-19-lockdown-emerges-as-serious-concern/story-mMRq3NnnFvOehgLOOPpe8J.html (last visited Aug 25, 2020).
 Supra at 9.
Jasra Afreen, NCW received 2,043 complaints of crimes against women in June, highest in 8 months, Hindustan Times, 2020, https://www.hindustantimes.com/india-news/ncw-received-2-043-complaints-of-crimes-against-women-in-june-highest-in-8-months/story-XXf69w9jnWi0dSbw3PhTjJ.html (last visited Aug 26, 2020).
 Supra at 9.
 Delhi HC Directs Government To Take Necessary Steps To Curb Domestic Violence Amid Lockdown, India Legal (2020), https://www.indialegallive.com/constitutional-law-news/courts-news/delhi-hc-directs-government-to-take-necessary-steps-to-curb-domestic-violence-amid-lockdown/ (last visited Aug 27, 2020).
 Mansi vora et al., COVID-19 and domestic violence against women, 53 Asian Journal of Psychiatry (2020), https://www.sciencedirect.com/science/article/abs/pii/S1876201820303397?via%3Dihub (last visited August 27, 2020).
 Supra at 9.
 Malavika Karlekar, Domestic violence, 33 Economic and Political Weekly 1741-1751 (1998), https://www.jstor.org/stable/4406963?read-now=1&seq=1 (last visited Aug 27, 2020).
 Effects of domestic violence on children, Womenshealth.Gov. (2019), https://www.womenshealth.gov/relationships-and-safety/domestic-violence/effects-domestic-violence-children (last visited Aug 28, 2020).
 Indira Sharma, Violence against women: Where are the solutions?, Indian Journal of Psychiatry 131-139 (2015), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4462781/ (last visited Aug 30, 2020).
 COVID-19 and violence against women What the health sector/system can do, (2020), https://apps.who.int/iris/bitstream/handle/10665/331699/WHO-SRH-20.04-eng.pdf?sequence=1&isAllowed= (last visited Aug 31, 2020).
 Supra at 37.