The Applicability Of The Domestic Violence Act 2005 With Reference To Section 498A; An Analysis Of Legalities And Implementation
Authored By : Diya Pandey
Class : 5th Semester Section- E
Programme : Ba.Llb(Hons.)
Supervisor : Ms Kanika Kaundal
Amity Law School, Noida.
I, hereby declare, that dissertation entitled “ The Applicability of Domestic Violence Act 2005 with Reference to Section- 498A ; An Analysis of Legalities and implementation” is an original work submitted by me and has not been submitted in any university for degree or diploma.
Place : New Delhi , India. Name: Diya Pandey
Date: 18/05/2020 Enrolment number : A3211117282
This is to certify that the legal writing entitled “The Applicability of Domestic Violence Act 2005 with Reference to Section-498A: An Analysis of the Legalities and Implementation” has been prepared by Ms Diya Pandey, a student of Amity Law School, Noida, Amity University , under my supervision and guidance and I recommend it for submission for the evaluation.
Place: New Delhi. Name: Ms Kanika Kaundal
CHAPTER :1 INTRODUCTION
SOCIETY AND DOMESTIC VIOLENCE
CHAPTER 2: CATEGORISATION OF THE ABUSES
EXPLANATION OF A FEW ABUSES
FACTORS AMOUNTING TO ABUSES
CHAPTER 3: IMPACT ON THE DEVELOPMENT OF CHILDERN AND WOMEN
CHAPTER 4: PROTECTION OF WOMEN FROM DOMESTIC VIOLENCE ACT 2005
4.1 POWER OF MAGISTRATES
6. CHAPTER 5: APPLICATIONS OF SECTION-498A
This research paper is focused towards different aspects involved in domestic violence. I chose this topic because domestic violence , although is the most common case in our country, not many women know that this suffering is not natural or the end of their life. It is important that the use of section 498A and the Protection of Women from Domestic Violence Act 2005 should reach out to every women who is in need of help and feels under privileged to fight this battle.
Respect , dignity and freedom is the right of every individual then our women should not be asked to comprise the basic pillars of the humanity itself. On a personal note, there’s a connection with this topic.
This research paper explains all the psychological and emotional wars that a women and child goes through during an abusive situation. It describes what the mentality of the Indian society is towards domestic violence . Further there are the two most important legal remedies that Indian Judicial system offers to its citizens who suffer from domestic violence.
Chapter 1 : Introduction
1.1 SOCIETY AND DOMESTIC VIOLENCE
Aggression and violence are associated with different aspects. Domestic violence is a type that dwells within a family. It includes harassments from physical to sexual to psychological or even economically associated issues. It can be said in a nutshell that domestic violence becomes a scenario in which the family members or the husband or the wife , start thinking that they the right to violate someone’s' individuality or peace just because they are bound or related by martial bonds or even live under the same roof.
Our civilization , where humans are cohabiting , cannot be comprehended as a place where everyone is in a peaceful haven. That will be an ignorant assumption. While people are capable of emotions like love and happiness, it is natural that anger and sadness are also the other side to the nature. But no person is entitled to bear misery or embarrassment or pain at any level of relationship. In our Indian society, women, who are supposedly seen as goddesses, are always put at a place where they have to compromise their personal rights and individuality.
Typically this violence is suffered by women by male members of her family. The protection of women from domestic violence act of 2005 defines domestic violence in section 3 and explains that any kind of injury or harm that affects the health, safety, well being, whether mental or physical or physical abuse, sexual, verbal, emotional or economical abuse is taken under the category of domestic violence. Any kind of unlawful demand for dowry or property that might give a reason to the people to harass or endanger the victim is also categorised under domestic violence. In India many studies and researches have found that women are subjected to cruelty and disrespected irrespective of their origin, education or lifestyle. There are many criminal cases that are committed against women but domestic violence still dominates crimes like rape and harassments. The status of women who constitute almost half of the Indian population is still on a satisfactory level. Domestic violence is a global issue affecting a women's well being and respect. A misconception that women are weak and vulnerable hence are prone to be in a position where they are exploited. It is astonishing that such kind of approach is tolerated by the society and men who talk about equality feel that they are maintaining good order by punishing their wives.
The further chapters will focus on different parameters that are needed to be understood regarding domestic violence. Questions like what leads to domestic violence? what effects does it have on family ? What are the legal remedies to fight it, shall be answered in the following chapters.
Chapter 2 : Categorization Of The Abuses
The human behaviour is absolutely unpredictable hence it is difficult to comprehend how a person may react in any kind of provocative situation. Aggression is a natural emotion that is prominent in humans but not every individual is able to handle and manage it. But to take out frustrations and treat fellow members of the house in a disrespectful way and causing harm to the morality of the family is simply not justifiable.
Violence, generally comprises of any kind of physical harm or mental harm including any type of hurt that might come to the body parts. Violence against women majorly includes physical harm and sexual assaults; in India marital rape is still at a developmental stage. There are obviously many ways in which the modesty of a women can be harmed and below are a few categories based on the type of abuse :
1 Verbal abuse
2 Emotional abuse
3 Psychological abuse
4 Financial abuse
5 Physical abuse
6 Reproductive abuse
7 Sexual abuse
Before 1983 every form of violence committed against the women within the family were not considered as an unlawful action. It was considered natural of a man to beat his wife out of anger. But eventually the legal system of our country took many turns and has come a long way in improving the laws against people who abuse women.
2.1 EXPLANATION OF A FEW ABUSES
1. Physical Violence : actions like Slapping,kicking,beating, grievously Causing injuries dragging etc are termed under this category. In some scenarios where situations get escalated these actions lead to the death of the victim. There have been many cases where the victim is beaten with a stick or rod or any other such tool that causes a fatal injury.
2. Sexual violence: any kind of sexual coercion or assault including sexual intercourse without consent is considered a tie of violence (in India still not recognised) .
3. Emotional or psychological abuse: insults and belittling might not seem such big issue but have a very strong induce on the self esteem of a person constant humiliation , intimidation by destroying things or threats to harm or take away children is also considered unlawful.
4. Financial abuse : many women who are housewives, depend on their husbands for money. They lie at the mercy of their men for survival. Considering this a weakness, men take advantage thinking it as a way of crippling the independency of their wives. In the cases where the female is educated, she often forced to leave her job in order to save the relationship.
2.2 FACTORS AMOUNTING TO ABUSES
Our society plays a very pivotal role in teaching the morals and ethics of life. It circulates an essential way of living among the generations, hence it’s important the we educate ourselves with ways of handling life. The respect and morals a person learns in his/her home is passed on to the
A study by the World Health Organization has found that there are mainly three factors that lead to domestic violence i.e, Individual factors, Relationship factors and Community or Societal factor.
Speaking of India particularly , our society has a very bleak stand against domestic violence perhaps because it is believed that men are superior or the dominant sex in the household. Since they are the ' Man of the house' it is permissible of them to take control however way it maybe. This mentality has led many men to opt for the aggressive or violent ways in order to maintain his power over the people residing under his roof.
The problem lies in the roots of the community where everyone has grown up to see that the man is the dominant person. It was found that men who commit domestic violence often come from a background where they themselves have been a part of abuse ,whether physical or sexual. Alcohol and drugs being the most common factor among the cases registered , ruins the peace and emotional status of not only the women but their children too. Alcohol takes away their ability to think straight or even judge their own actions.
Another scenario that is common in a marriage is that the husbands get intimidated by the success and education of their wives and fail to bear their own economic stress. Our society, somewhere, thinks it is acceptable for the man to beat his women in order to keep discipline. Poverty and under-education remains a very important factor because knowledge also plays an important role in shaping the mentality of a person. Some people keep an arrogant outlook stating that women are meant to be focused towards their household activities only and a little beating keeps them straight. It is awful that such kind of statements are openly said and accepted in our society where the rights of a women are snatched away very easily .
Chapter 3 : Impact On The Development Of Women And Children
The stat below shows how many women suffer from the different abuses in a percentage value.
13 – 61% : women have gone through physical Violence by their partners.
4 – 49% : women have withstood severe physical Violence by their husbands.
6 – 59% : women have experienced sexual violence.
20 – 75% : women complained to have gone through emotional abuse.
This is of countries like Bangladesh, Serbia , Ethiopia , Peru etc . The status of even smaller countries stands questionable where education and ethics are still developing.
Childhood is a time where the mental and the emotional capacity is very tender. Exposure to violence in this period scars their lives and kills their innocence. It not only gives them severe human stress but also gives them a burden of under-development . It was shown in the studies that around ten to twenty percent children witness domestic violence during their childhood. It is the responsibility of the parents to ensure a positive and peaceful environment for their children. In order to have a progressive future it was noted that exposure to violence and negative behaviours has lead these children go through a massive amount of emotional distress as well as sleep disturbances, anxiety, aggressiveness etc. Adolescents usually start showing signs of irritability, low school performance, social incompetency, attitude problems. Some children might also start committing crimes experience alcohol or substance abuse which would their entire future and development. The child, when finds that this or her parents are absent in terms of emotional support, it leads them to believe that there is no one who will understand them. This creates a frustration that leads them to a very unhealthy and lonely way off living ultimately inducing depression.
Women, who are considered as the building block of Human civilization are no super humans when it comes to the emotional health. It is difficult to maintain a strong and patient outlook towards the responsibilities they have yet bare the abuse inflicted by the husband.
There are cases in which due you excessive torture the women start feeling that there is no way out ; feeling doomed they often take the extreme step of ending their life. In cultures where the dowry system is followed, if the womans’ parents are unable to meet the dowry requirements, it leads to violence against the lady, which sometimes causes death due to injuries or homicide. Many women who are pregnant suffer with miscarriages or complications due to an abusive environment affecting their health and emotional condition.
It was also found and becomes a constant fear that the children who witness such violent actions at home might be encouraged to forward this practice in the next generation. Thus, it is important that they are taught about these situations and how immoral these things are. It should be acknowledged to them that taking dominance over others by the use of aggression is not the right way of treating anyone.
The problem or the roots of this situation is that the women of our Indian society are taught that once a girl is married, her husband and the home should be her soul responsibility and priority till death. She is asked to compromise and bear everything to save her home in order to not be a failure in the marriage and be dishonoured in front of the society. What we forget to tell those ladies is that they have their life too and they deserve to be happy and have a diginity of their own.
Figure 1.1 Universal symbol of Domestic Violence
The women and children should be taught and given awareness that there are many organisations and people who are ready to help them through this darkness that they suffer thinking that life has closed doors on them. Our Indian Judicial system, has paved way for such assistance with the action The protection of women from Domestic Violence Act 2005 and section 498A.
Chapter 4 :Protection Of Women From Domectic Violence Act 2005
This act was provided for a more efficient way of protecting the rights of a woman. It is applicable to the whole of India except Jammu and Kashmir (latest development awaited).
Definition of domestic violence under this act provides for the following points:
1. Harms or injuries that endangers the health safety like limb or well being whether mental or physical of the aggrieved person or tend to do so and includes causing physical sexual verbal emotional economic
2. Any kind of harm with the intention of demanding unlawfully for dowry or property or any valuable security
3. Threatening the person for any of the above points
4. Gives injury or causes harm whether mental or physical
It shall be noted that the physical abuse mentioned above includes any kind of bodily pain harm to life or any criminal force. Name calling or humiliation regarding not having a male child or a child, is also considered a type of emotional abuse.
This act also gives the power to any person who believes that there might be an action of domestic violence to give the information about the incident to the protection officer. A protection officer is appointed by the state government who may report to the government about incidents. He is responsible to safeguard the aggrieved person in terms of medical examinations and judicial proceedings and then report to the magistrate.
4.1 POWERS OF THE MAGISTRATE
1. Under section 20 of this act, the magistrate has the power to direct the respondent to pay any kind of monetary relief needed by the victim and the child if any to meet the expenses of their survival.
2. The magistrate under the sub section 4 of section 20 has the power to send a copy of the monetary relief to the police station which has the jurisdiction of the respondent's residence which ensures that the payments are done regularly.
3. The custody of the children is usually given to the mother or the aggrieved person and may or may not warrant the visits of the respondents.
4. In some cases where the respondent might try to commit an act of domestic violence again the magistrate may ask to maintain a permanent distance and give the aggrieved person a protection order.
5. Under the section 19 of this act the magistrate also has this power to ask the respondent from leaving the household depending upon the level of violence committed. If at any point the protection orders are violated the respondent is most likely to end up in jail.
6. According to this act as mentioned in the section 12 the government, Central and state shall have the responsibility of educating people about this act and is provisions in order to speed awareness amongst the people suffering.
Figure 1.2 Advertisement by the National Commission for women
7. For people who are economically challenged may approach shelter homes who under section 6 have the duty to provide any kind of assistance needed.
It is clearly understood that the act provides complete assistance if acknowledged properly but when it comes to the punishment and proving the person guilty, there is a different section in the Indian Penal code.
Chapter 5 :Application Of Section 498A
Section 498A is regarding the cruelty subjected to a woman by her husband or relative of the husband. According to this act the husband or the relative of the husband shall be punished with imprisonment for a term that may be extended up to three years and shall also be liable to fine. When we use the term cruelty it means that if the husband or the relative does something that induces injury to the women or endangers her health, mental or physical or in the worst scenario drives the woman to commit suicide , he or the relative is subjected for punishment.
It also means that if the woman is harassed in order to transfer property or valuable security like her gold , he shall be punished in that case too. In a particular case named state of Punjab Vs Daljit Singh ,it was noted that the demand of money after marriage is also sufficient for conviction Under this section i.e. 498A .In this case the wife was subjected to a heavy harassment putting her in a state of mental and emotional stress at a level that she was bound to end her life. The demand of money was made after four years of marriage for a specific purpose which was no where related to marriage but still lead to harassment .
Another factor that is very consistent in our culture is drunkenness. The habit of excessive drinking is a poison that no woman should be bound to bare as it is a disgusting conduct. It is very difficult to understand the distress and anger of a wife who had never imagined that the Drinking habits of the man she married will make her life not only miserable but unbearable too. Thanks to this section 498A if a situation like this arises, she may leave him on the grounds of cruelty and constructive desertion.
This section is non-bailable and non-compoundable that means the complaint cannot be taken back once registered and the man might end up in prison.
Our country is developing in every area, be it of judicial or in the societal aspects. Education still remains the most important way of improving the quality of thinking and moral values. When it is comes to equality, women should be not just empowered in the corporate sectors but also at the roots of the community i.e, the household.
When the women at home will be respected and valued, our coming generations will improve their outlook towards the abuses endured by the ladies. Women are the strongest beings as they have the power to deal with pain and still keep up with the responsibilities they hold. They should not be a place where men can dump their frustration or their own incompetency in life. Mothers of our society should teach their sons how to treat women.
Our constitution has provided us the act but it should be our government who should reach out for the help by spreading awareness and provide more helping hands who can strongly work towards the cause.
Marital rape which is also another abuse that is prevalent, is till not considered a crime, should be recognised in the judicial system because it is humiliating and targets the modesty of the women. Marriage is not the ownership of the woman or her dignity. There should be a stricter action for men who do such cruelty on women .
With the hope that in the coming years , there will be better reforms , the only thing that can be done is that every individual realizes his/her duty towards people who victimize their family by aggression and stand against them. Strength and awareness shall prevail only then true justice will be served.