Domestic Violence: Prof. Vibhuti Patel

Domestic Violence Violation of Human Rights of women : 

1 Domestic Violence Violation of Human Rights of women Dr. Vibhuti Patel, Director, PGSR & Professor & Head, Department of Economics, SNDT Women’s University, Churchgate, Mumbai-400020. E-mail- vibhuti.np@gmail.com Phone-91-022-26770227, mobile-9321040048

Historical Background: 

2 Historical Background In 1983, domestic violence was recognised as a specific criminal offence by the introduction of section 498-A into the Indian Penal Code. This section deals with cruelty by a husband or his family towards a married woman. Four types of cruelty are dealt with by this law: conduct that is likely to drive a woman to suicide, conduct which is likely to cause grave injury to the life, limb or health of the woman, harassment with the purpose of forcing the woman or her relatives to give some property, or harassment because the woman or her relatives is unable to yield to demands for more money or does not give some property.

What are the forms of "cruelty" recognised by the Courts? : 

3 What are the forms of "cruelty" recognised by the Courts? Persistent denial of food, Insisting on perverse sexual conduct, Constantly locking a woman out of the house, Denying the woman access to children, thereby causing mental torture, Physical violence, Taunting, demoralising and putting down the woman with the intention of causing mental torture, Confining the woman at home and not allowing her normal social intercourse, Abusing children in their mother's presence with the intention of causing her mental torture, Denying the paternity of the children with the intention of inflicting mental pain upon the mother, and Threatening divorce unless dowry is given.

What is a "matrimonial home"? What rights do women have in their matrimonial home? : 

4 What is a "matrimonial home"? What rights do women have in their matrimonial home? The matrimonial home is the household a woman shares with her husband; whether it is rented, officially provided, or owned by the husband or his relatives. A woman has the right to remain in the matrimonial home along with her husband as long as she is married, though there is no definite law regarding this right. If a woman is being pressurised to leave the matrimonial home, she can ask the Court for an injunction or "restraining order" protecting her from being thrown out. This can usually be obtained quite easily. It is generally advisable not to leave the matrimonial home; it is easier to get a court order preventing a woman being thrown out than to get an order enforcing her right to return to it once she has left or been thrown out.

What is an 'Injunction' and how does it apply to domestic violence cases? : 

5 What is an 'Injunction' and how does it apply to domestic violence cases? An injunction is a court order directing a person to do or not to do something. A woman has a lot of flexibility regarding what she can request the Court to order. For instance, if she is being stalked by somebody (including her husband), she can obtain injunctions against the person coming near her home or place of work, or even telephoning her.

What can be done in the case of dowry-related harassment or dowry death? : 

6 What can be done in the case of dowry-related harassment or dowry death? Section 498-A of the Indian Penal Code covers dowry-related harassment. As with other provisions of criminal law, a woman can use the threat of going to court to deter this kind of harassment. The Indian Penal Code also addresses dowry deaths in section 304-B. If a woman dies of "unnatural causes" within seven years of marriage and has been harassed for dowry before her death, the Courts will assume that it is a case of dowry death. The husband or in-laws will then have to prove that their harassment was not the cause of her death. A dowry death is punishable by imprisonment of at least seven years. When filing an FIR ( First Hand Report), in a case where a woman is suspected to have been murdered after a history of torture due to dowry demands, the complaint should be filed under section 304-B rather than under section 306, which deals with abetment to suicide. Section 306 should be invoked when a woman commits suicide because of dowry-related harassment.

Can you refuse to have sex with your husband? Is there a law on marital rape? : 

7 Can you refuse to have sex with your husband? Is there a law on marital rape? Since India does not have a law on marital rape, even if a woman's husband has sexual intercourse with her without her consent, he cannot be prosecuted for rape. However, excessive and unreasonable demands for sex, or demands for unnatural sex have been considered forms of cruelty and may entitle a woman to a divorce. If a woman is judicially separated, her husband cannot have sexual intercourse with her without her consent. If he does, he can be prosecuted under section 376-A of the IPC. Note that consent under pressure (e.g. because of threats to injure or to stop paying maintenance) is not considered valid.

What can a woman do to prevent domestic violence ? : 

8 What can a woman do to prevent domestic violence ? One option is to get the woman's husband to execute a "bond to keep peace", or a "bond of good behaviour" through the Executive, Magistrate who can order the husband to put a stop to domestic violence. The husband can also be asked to deposit securities (i.e. money or property) that will be forfeited if he continues to act violently .

Constitution of India: 

9 Constitution of India 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 for women Article 16- provides for equality of opportunities in the matter of public appointments

Access to Legal Service: 

10 Access to Legal Service

Family laws: 

11 Family laws Laws relating to marriage, divorce and inheritance governed by laws of the specific community. The test of the validity of these laws to be made on the touchstone of Art 13 of the Constitution. A number of positive amendments have been brought in the last year e.g.- removal of an upper limit on Section 125 the Cr.P.C., place of filing divorce proceedings, women’s right to stay in parental as well as matrimonial home as per Domestic Violence Act, 2005 etc. But a lot remains to be done. Especially amendment to Section 6 of the Guardians and Wards Act, recognizing the equal rights of mothers to be appointed guardians.

Domestic Violence: 

12 Domestic Violence Criminal law- Section 498A Protection of Women From Domestic Violence Act, 2005 Recognition of the right to residence Provision for the appointment of Protection officers and the recognition of Service Providers Trainings for Protection Officers and Judges Awareness creation Budgetary allocation

Distinction between Civil and Criminal Law : 

13 Distinction between Civil and Criminal Law The distinction between civil and criminal law is a basic part of the Indian legal system. Civil laws deal with the rights and obligations of people and what is needed to protect them, while criminal law deals with offences and their punishment. In a criminal offence, the State takes upon itself the responsibility to investigate and collect evidence (through the police), to fight the case in court (through a public prosecutor) and enforce the punishment. Robbery, murder and kidnapping are examples of criminal offences. Criminal offences are dealt with by the Indian Penal Code (IPC). The procedure by which a criminal trial is conducted is quite different from the processes involved in a civil trial. An important difference is that the "standard of proof" required in criminal cases is much higher than in civil cases. Since criminal law is centrally linked with issues of punishment, allegations and facts must be proved "beyond reasonable doubt", so that innocent people are not punished. In civil cases, the courts scrutinise the "balance of probabilities" before deciding in whose favour to make a judgment.

In case of Domestic violence : 

14 In case of Domestic violence B oth civil and criminal law apply in case of DV. Inflicting physical violence on a wife or daughter-in-law as well as subjecting her to cruelty - physical, mental, sexual or emotional and economic - in a marriage is not only a civil offence and provides ground for divorce (a "matrimonial offence"), but is also a criminal offence under the Indian Penal Code, for which a person can be imprisoned. The laws dealing with marital abuse have been made very stringent through amendments in the Indian Penal Code and the Evidence Act.

Implementation of laws: 

15 Implementation of laws Appointment and empowerment of statutory authorities at the central and state levels. Preparation of policy statements by such statutory authorities enclosing clear guidelines on the manner of implementation of the law such as code of conduct to be followed by functionaries, provision of best practices, etc. Evaluation and auditing the effectiveness of particular laws and the periodic publication and submission of compliance reports with a central statutory authority. Upgrading the quality of statistics maintained on women. Each statutory body to conduct yearly surveys in their particular field.

Implementation of laws: 

16 Implementation of laws Building capacity of the functionaries appointed under the law such as statutory authorities, police personnel, health personnel, counselors, etc by conducting regular trainings on the law including aspects of gender sensitisation as well as improving practices followed by them. Introducing mechanisms to ensure quicker and simpler procedures for women to obtain legal redress to their problems. This would include the provision of legal aid, assistance at the time of registering complaints, making applications, provision of information on the legal options available to the women etc. Raising awareness of the services and support available to women facing discrimination, from both governmental and non governmental sources. Ensuring adequate representation of women in statutory advisory bodies/ policy making bodies.

Implementation of laws: 

17 Implementation of laws I. Sustained interactions between different governmental agencies to promote multi agency working. J. Allocation of adequate budgets for the proper functioning of the statutory authorities. K. Constant monitoring and auditing of accounts by a central authority. L. Submission of financial reports to the Auditor General for it to be placed before on the floor of the Parliament or State Legislature as the case may be.

Affirmative Action: 

18 Affirmative Action Improve Women's Economic Capacities : Improve women's access to and control of income and assets, recognize her shared right to the family home, and incorporate the principle of division of community property in divorce laws. Productive assets and property are critical to strengthening the economic and social status of women, providing income opportunities and improved respect for women outside marriage and family.

Strengthen and expand Training and sensitization Programs: 

19 Strengthen and expand Training and sensitization Programs Programme designed to train, sensitize and inter-link those working at critical entry points to identify and treat abused women should be a priority, with one aim being increased accountability across institutions. Such programmes should be tailored for medical personnel, the judiciary, counseling and other support service providers.

Effective use of the Media to build Public Awareness: 

20 Effective use of the Media to build Public Awareness Mobilisation of communities around campaigns such as that for "Zero Tolerance of Violence" requires improved skills and capacity among NGOs to enter new forms of dialogue with journalists and media personnel to heighten awareness of human rights and their significance for addressing domestic violence.

Programmes designed for the batterers: 

21 Programmes designed for the batterers must be introduced in both the state and voluntary sectors. In order to promote a holistic approach to prevention as well as intervention, the deficiency in programmes designed for men needs to be addressed.

Addressing Domestic Violence through Education: 

22 Addressing Domestic Violence through Education Prevention of domestic violence ultimately depends upon changing the norms of society regarding violence as means of conflict resolution and traditional attitudes about gender. To achieve this, there must be introduction of gender and human rights in the curricula of schools, universities, professional colleges, and other training colleges. Along with this, there must be recognition and commitment to the principle of free compulsory primary and secondary education for girls.

Replication of dilaasa: 

23 Replication of dilaasa Dilaasa model of one stop crisis centre housed in the public hospital to facilitate collective intervention of medical staff, police and NGO must be replicated through out the country.

Thank you: 

24 Thank you