Geeta Institute of Law
Women’s Rights with Special Reference To Domestic Violence Act.
Human development over the years has gone through various changes in various phases and has emphasized the need to empower all people, especially women, by promoting, developing and coordinating programmes within the framework of a Human Development Agenda.
Even in the developed World, women have been well empowered as far as social and economic rights are concerned, but they are not equally empowered in political sector. But as to domestic scenario even the developed countries women who are financially independent also face many problems in their day to day life. The situation is worse in countries like India where women are worshiped and at the same time ill treated and subordinated to the core.
In Modern days women do enjoy certain status if they are educated and economically independent. But, enjoying full freedom and their participation in the decision making of their life as fully as they wanted it to be has to go a long way. Too many restrictions, customs and practices which always make a woman Handicapped and unable them to act against such practices even if they desire to do it. Even if we say women have rights and in recent periods it is very mediocre and minimal and there is even lot more they need to live a life of their own as they wish.
Today the status of Indian Women is precarious. Life after Marriage is the real challenge that every woman should face and that she is in a compulsion to earn good name from her husband, in – laws and her relatives of both their families. This is her first task, to earn good name from her family members she is forced to transform her identity as according to the needs of the new family and the struggle begins here that all her desires comes to a standstill position and that her husband’s wishes is forced and thrashed upon her which automatically becomes her priority.
Women are subjected to real threat to their life through the violence which is meted out by them in their husband’s home. This violence is termed as “Domestic Violence” which they face throughout their life. Scholars are of the opinion that the Domestic Violence is a Social Crime.
A woman’s plight begins from her childhood and was through her adolescent stage up to her marital life when woman comes into the fold of marital life her plights are unpredictable and atrocious if she is not blessed with cordial atmosphere. Because of the restriction placed on her by the family and society she is almost vulnerable to many attacks on her status of dignity and sometimes her life as well.
The Indian Penal Code contains many provisions with the view to protect women from acts of violence against their body, mind, status and other things which are necessary for their dignified existence. The sexual assault and outraging the modesty and acts of interference with their marital life and similar situation are protected by a negative method of punishing those who infringe them.
Violence against women is not a myth, but a reality. It exists and exists everywhere. The type, frequency, intensity and control of violence against women may vary from time-to-time or place-to-place but it is there everywhere.
Related Topic: FIR (FIRST INFORMATION REPORT) SECTION-154, CRPC
WOMEN’S RIGHTS – historical Background
The problem of violence against women is as old as the world in cosmologies, mythologies or legends. The type, frequency, intensity and control of violence against women may vary from time-to-time or place-to-place but it is there everywhere. Family as an institution in ancient India laid down the principles which regulated the relationship between husband and wife and parents and children.
A man as a husband had certain responsibilities towards his wife. A husband was to act as a provider and was called upon to cohabit with his wife.
The husband had complete control over the mind and body of his wife, without his consent, a wife had no right to perform even a religious act. Husband had the right to use physical corrective methods over his erring wife which was the same as those possessed by a teacher over a pupil or a father over a son, viz., he could administer beating with a rope or a thin piece of bamboo on the back but never on the hand.
- Views by Kautilya:
Kautilya also endorsed husband’s right to beat his wife of refractive nature. He allows the husband to beat his wife, either with a bamboo bark or with a rope or with a palm of hand on her hips. Ramayana remarks: ‘the husband is the God and master of the wife’. The wife was completely secluded from outside contacts. It was only with the permission of her husband, that she was permitted to move out from her husband’s house. Failure to observe these restrictions attracted censor, social degradation, humiliation and punishment. The husband-wife relationship was not based on love, affection, mutual give and take and on equalitarianism. The relationship was marked by authoritarianism and submissiveness. Wife was not only secluded from outside contacts but was looked at with suspicion. Kautilya, while advising the King for his safety contended that the King should make necessary arrangements for his personal safety firstly from his wife only then he would be able to maintain the security of his kingdom. Kautilya further demanded from the kind: “when in the interior of the harem, the king shall meet his queen only when her personal purity was vouch saved by an old and reliable maid servant”. Such dictates establish the fact that wife was not relied upon. When the relationship between husband and wife is marked by suspicion, the question of developing close, personal and intimate relationship does not arise.
- Views by Manu
Manu says that “a wife who violates the duty that she owes to her lord shall be devoured by dogs in a place frequented by many. By violating her duty towards her husband, a wife is disgraced in this world; and after death, she enters the womb of a jackal and is tormented by diseases as a punishment for her sin. The laws of Manu further declare that a wife may be superseded for various reasons – “A barren wife may be superseded in the eighth years, she whose children lie in the tenth; she who bears only daughters, in the eleventh, but she who is quarrelsome without delay”. “But a sick wife who is kind and virtuous in her conduct, may be superseded with her own consent and must never be disgraced”.
PROTECTION OF WOMEN’S RIGHT WITH REFERENCE TO DOMESTIC VIOLENCE ACT
In the last four decades, there has been an alarming increase in the incidence of violence within and outside the family. Today, the most common activity in the houses is wife beating, dowry deaths, sexual crimes and even reversion to medieval practices life “sati”. Over the years, the nature of domestic violence has changed. Domestic Violence knows no age, socio-economic, religious, racial, gender or educational barriers. It is a myth that only the poor or uneducated are victims of domestic abuse. Most studies indicate that there is also high incidence ‘spousal abuse in the more affluent neighborhoods.
Domestic violence can take a number of forms, including:-
- Physical behavior (slapping, punching, pulling hair or shoving);
- Forced or coerced sexual acts or behavior (unwanted fondling or intercourse, or sexual jokes and insults);
- Threats (threatening to hit, harm or use a weapon);
- Psychological abuse (attack on self-esteem, attempts to control or limit another person’s behavior, repeated insults or interrogation);
- Stalking (following a person, appearing at a person’s home or workplace, making repeated phone calls or leaving written messages); or
- Cyber stalking (repeated online action or e-mail that causes substantial emotional distress); and
- Sacrifice of liking, interest and skills.
The worst thing is that all these come as a rude shock to her after marriage, because the institution of marriage in our society is highly glamorized. Hence for a woman, ‘the union of soul’s turning into a nightmare is a truly horrifying and shattering experience. The mental violence may be committed in such a subtle manner that others will never come to know of it. A new dimension has been given to the concept of domestic violence including spousal violence and or matrimonial cruelty by the Protection of Women from Domestic Violence Act 2005 by giving an exhaustive definition of “domestic violence”. The definition of domestic violence under the Act addresses violence perpetrated on women not only by their husbands or parents but even their siblings. In terms of Section 3 of the Act domestic violence is defined to include actual abuse or threat of abuse that is physical or mental, sexual, verbal or emotional, or economic abuse, Harassment by way of unlawful dowry demands to the woman or her relatives are also covered under the definition.
The definition does not take within its purview only “physical abuse”, which means any act or conduct of such nature as to cause bodily pain, harm, or danger to life, limb, or health or impair the health or development of the aggrieved person and includes assault, criminal intimidation and criminal force, but also “verbal and emotional abuse” as also “economic abuse”. “Economic abuse” includes deprivation of all or any economic or financial resources to which the aggrieved person is entitled under any lay or custom whether payable under an order of a court or otherwise or which the aggrieved person requires out of necessity including, but not limited to, household necessities for the aggrieved person and her children, if any, stridhan, property, jointly or separately owned by the aggrieved person, payment of rental related to the shared household and maintenance. Indian law does not recognize various types of cruelty, such as ‘Muslim cruelty’, Christian cruelty’, Jewish cruelty’ and so on. The test of cruelty, as observed is based on the universal and humanitarian standards, that is to say, conduct of the husband which would cause such bodily or mental pain as to endanger the wife’s safety or health. The cruelty alleged may largely depend upon the type of life the parties are accustomed to or their economic and social conditions, their culture and human values to which they attach importance
The question whether the act complained of was a cruel act is to be determined from the whole facts and the matrimonial relations between the parties. In this connection the culture, temperament and status in the society and many other things or the factors which have to be considered.
The Supreme Court in Narayan Ganesh Dastame v. Sucheta Narayan Dastame, held, matrimonial cases is not concerned with ideals in family life or has to deal not with an ideal husband and an ideal wife but with the particular man and woman before it. The ideal couple or a near ideal one will probably have no occasion to go to a matrimonial court, for, even if they may not be able to drown their differences their ideal attitude may help them overlook or gloss over mutual faults and failures. Despite the fact that there is a full fledged branch of Criminal law to deal with matters of domestic violence, a development of far reaching significance in recent years in the advent of Civil Law covering the matters of protecting the rights and interests of the women against the assailants against violent behavior.
JUDICIAL VIEW TO DOMESTIC VIOLENCE
Although, the constitution of India and several other legislative enactments are in existence for the protection of women’s rights, the credit for highlighting and enforcing justice goes to the Supreme Court and various High Courts. Judicial officials hold that in dealing with cases of violence against women, they use discretion in the light of particular circumstances, particular social conditions, and particular individual needs. In the case of
Soni v. State of Gujarat, highlighting the importance of Dowry Prohibition Act, 1961, Section 304B and Section 498A, Indian Penal Code, The Supreme Court observed that: “Section 304B and the cognate provisions are meant for eradication of the social evil of dowry which has been the bane of Indian society and continues unabated in spite of emancipation of women and the women liberation movement. This all pervading malady in our society has only a few lucky exceptions in spite of equal treatment and opportunity to boys and girls for education and career. Society continues to perpetuate the difference between them for the purpose of marriage and it is this distinction which makes the dowry system thrives. Even though for eradication of this social evil, effective steps can be taken by the society itself and the social sanctions of the community can be more deterrent, yet legal sanctions in the form of its prohibition and punishment are some steps in that direction.”
Despite the fact that there is a fully fledged branch of Criminal law to deal with matters of domestic violence, a development of far reaching significance in recent years in the advent of Law covering the matters of protecting the rights and interests of the women against the assailants against violent behavior the domestic violence act 2005 has played a significant role. The underlying object of this legislative measure has been to protect the status of women in society, more particularly the status of the married woman.
New remedies like the occupation orders, residence orders, custody orders, compensatory orders, etc have come up and every step is being taken to provide as effective and as efficient a remedy as possible. The establishment of new institutions like the protection officers, Service Providers, and Counselors etc. a new-corner to the system of remedial justice. The new remedies and the new institutions are not a substitute for the conventional institutions which were functioning under the aegis of Criminal law; on the other hand they are supplementary to the institutions of Criminal Justice which seek to provide additional remedies in the sphere of civil law having found the remedies under Criminal Law to be inadequate in various situation. In India, the concept of domestic violence has always been understood in terms of a wide range of behavior of men towards the rights and interest of women.
The provisions of the Indian Penal Code 1860 addressed the problem of violence against women in whatever form the problem existed at the advent of the Code. As new types violence erupted the Code was amended incorporating thereby new types of offences. The code contained at the same time the law on offences relating to married women. The parliament went a step further and enacted a new law called the Protection of Women from Domestic Violence Act, 2005. By this legislation, Domestic Violence is a pattern of behavior in any relationship that is used to gain or maintain power and control over a female partner. Abuse can be physical, Sexual, emotional, economic or psychological actions or threats of actions that frighten, intimidate, terrorize, manipulate, hurt, humiliate, blame, injure or wound the female partner was addressed. The new enactment called the Protection of Women from Domestic Violence Act, 2005 contains remedies such as ex part injunctions without the need for filing for divorce or maintenance, protection orders, non-molestation orders and non contact orders, which would help the woman while criminal action is being taken against the abuser to prevent him from making contact with her and inflicting more violence. Finally, it may be stated that the need to have a consolidated legislation instead of staggered enactments on the Rights and Remedies of the Women. Domestic violence act 2005 serves the purpose, thereby prohibits any type of violence, upholding the rights and integrity of women.
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