Introduction to Domestic Violence Laws
Domestic violence, also known as intimate partner violence (IPV) or domestic abuse, refers to a pattern of behaviours used by one partner to maintain power and control over another partner in an intimate relationship.
According to the U.S. Department of Justice Office on Violence against Women, “Domestic violence is a pattern of abusive behaviour in any relationship that is used by one partner to gain or maintain power and control over another intimate partner. Domestic violence can be physical, sexual, emotional, economic, psychological, or technological actions or threats of actions or other patterns of coercive behaviour that influence another person within an intimate partner relationship. In the Criminal Law, the crime of violence may occur in one or more incidents. This includes any behaviours that intimidate, manipulate, humiliate, isolate, frighten, terrorize, coerce, threaten, blame, hurt, injure, or wound someone.”
Domestic Violence is defined by the United Nation as-“Domestic abuse is typically manifested as a pattern of abusive behaviour toward an intimate partner in a dating or family relationship, where the abuser exerts power and control over the victim.”
Although the word Domestic violence does not apply to any particular gender it was still frequently and privately inflicted to the women. In the present scenario also if someone heard the word Domestic violence the first thing that clicks the mind is the word “women”.
As per Dobash and Dobash, Violence against Women 238(1980) cited by MDA Freeman) which says, When we talk about the common law, wife battering is the prominent type of domestic violence’s legal privilege . And, Eisenberg and Micklow, The Assaulted Wife: ‘Catch 22’ Revisited 161,(Women’s Rights Law Reporter 138,1977) stated that there was a Rule of thumb which represented that the husband had the right to beat his wife so long as he used a stick no thicker than his thumb. This practice prevailed in the lower class. But In 1946, the case called Meacher v. Meacher (1946) 2 ALL ER 307 in which the Court of appeal declined to uphold this privilege of the husband over the wife. Later in 1959 and 1975, this privilege was again recognised and gain support. Overall we can say that the traditional law reflects on the subordinate position of the women.
In India when we talk about the position of the women in the ancient time, we see that the ancient law given by the Manu smiriti and Yajnavalika smiriti entrusted the responsibility of protecting the female on the father, husband and son at different ages of life. It was further stated in the Manu smiriti,IX 95,p.no.101-2that duty of the husband is not only maintain his wife but also protect from the evils and it was also considered by the Narada Smiriti Jolly, Retranslation of Sacred Books of the East, Vol. XXXIII 165-84 stating that “the wife was half of the husband and very wealth of him”.
On the whole it can be said that the beating of a wife was not an absolute privilege of the ancient Indian law. Further in the case called Subbiah Gounden Case in 1936, the Madras High Court discussed the legality of beating of women. The court observed that it is not the privilege of the husband and will not be covered under the general exception of the The Indian penal Code,1860, India Chapter 4.
Violence is always opposed to the reason and tolerance and undermines the human rights and welfare of the person. Domestic violence manifests as verbal, mental, physical, and also includes physiological abuse.
Different types of Domestic violence
Here are some common types of domestic violence:
- Physical Abuse– This involves the use of force that causes physical harm or injury, such as hitting, punching, kicking, slapping, or any other form of physical aggression. In a medical context, signs of physical abuse are crucial indicators for healthcare professionals. These signs include unexplained injuries such as bruises, cuts, burns, or fractures that lack a consistent or believable explanation. If the injuries are not treated on time it was seen that there may be the concealment of the abuse.
- Emotional/Verbal Abuse: This includes behaviour aimed at causing emotional pain or distress, such as name-calling, humiliation, intimidation, threats, or constant criticism. Let’s take some examples for better understanding such as Insult for not having a male child, prevention for taking any job and insult for not bringing the dowry.
- Psychological Abuse: This type of abuse involves manipulation tactics, such as gas lighting (making the victim doubt their own sanity or perceptions), controlling behaviour, isolation from friends and family, or threats of harm.
In a medical context, signs of psychological abuse include patients exhibiting unexplained emotional distress such as anxiety, depression, or fear. - Sexual Abuse: Any non-consensual sexual activity or behaviour, including rape, unwanted touching, coercion, or forcing the victim to participate in sexual acts against their will. Example – Forcing the aggrieved person (refers to an individual who has been wronged, harmed, or injured in some way. This term is often used in legal contexts to describe someone who has suffered a grievance, injury, or loss due to the actions or negligence of another party) to watch pornography or other obscene material.
- Financial or Economic Abuse: This involves controlling the victim’s financial resources, withholding money, preventing access to funds, or forcing the victim to hand over their earnings.
The Evolution of Domestic Violence Laws
As per the report in the India Population 2024 (Live),World Population Review, India is a Democratic and Republic country whose population is nearly 1.44 billion estimated by the United Nation. In the whole population, women constitute nearly one half of the Indian population, but it is seen that the women are placed at the disadvantageous position because of Gender Discrimination and the biasness.
India has many laws in which the victim can seek the remedy. Such as Dowry Prohibition Act, Section 304A (Talks about Dowry death which was added after the amendment in Indian Penal Code, 1860, in 1986) and Section 498A of IPC, 1860 (added after the amendment in the IPC in 1983. The Protection of Women from Domestic Violence Act, 2005, offers a comprehensive legal framework in India, allowing victims to obtain protection orders, residence orders, and financial relief. Additionally, legal aid services offer crucial guidance and representation to navigate complex legal processes.
Courts play a pivotal role in ensuring justice for victims. Empowering victims to testify without fear of retaliation through protective measures and anonymity safeguards is vital. Law enforcement agencies must receive specialized training to identify signs of abuse, conduct thorough investigations, and ensure the safety of victims during interventions.
Victims of domestic abuse often face immense challenges in seeking help and legal protection due to a variety of factors, including fear of retaliation, financial dependence, and social stigma. In response to this critical issue, a multifaceted approach involving the collaboration of courts, law enforcement agencies, victim advocates, and support services is essential to empower victims and hold perpetrators accountable. To protect from the violence it is necessary that there are some rules, laws and acts to curb these issues and give the punishment to the offender and relief to the victims and their family. Why is family also included here? because it was seen that in some cases the victims are not only affected because of the act but it affects its whole family. When a female is physically assaulted by her spouse and the children witness the event face-to-face it can cause anxiety and fear in them. It can also cause trauma related to the relationship and marriage in the mind of the children.
Protection of life and liberty (also a Fundamental Right of every person given under the Indian Constitution, Article 21) through legal procedure will be meaningful only if there is a free violence atmosphere made by the rule of law.
Pre-Independence
In the traditional patriarchal society, it was believed that the women should remain under the confine of their family, husbands and other male family members. This was the situation after the post-independence as well. We can also say that Gender equality was never in existence in India.
It was believed that women were the root of all evil ( The Fall of Man and the Expulsion from the Garden of Eden, Genesis 3 p.no.1-24 (The Bible), Biblical Stories – In the Christian tradition, the story of Adam and Eve in the Book of Genesis is often interpreted as Eve being the one who tempted Adam to eat the forbidden fruit. This act of disobedience led to their expulsion from the Garden of Eden, with Eve often depicted as the instigator of humanity’s fall from grace.
Another example of Anne Llewellyn Barstow, Witchcraze: A New History of the European Witch Hunts (Harper One, 1995) that states-During the witch hunts of the medieval and early modern periods in Europe, women were often accused of practicing witchcraft and consorting with the devil. This belief was rooted in the idea that women were inherently more susceptible to evil and temptation. Thousands of women were persecuted, tortured, and executed based on these accusations.
Gender inequality and gender biasness (means discrimination on the basis of gender and sex) were common before the Gandhian Era. During the Gandhian Era the situation of women was improving. The Gandhian era gave a new perspective to gender equality and non- discrimination. Many reforms, policies and steps taken by the Government to improve the condition of the women in the society.
Swami Vivekananda also support the concept of gender equality and had aptly remarked by Dr. Sheetal Kanwal, Gender Justice and Feminist Jurisprudence 3( Amar Law Publication, Indore) :
“Just as a bird could not fly with only, a nation would not march forward if the women are left behind”
Truly speaking if the society has to develop, the contribution of the men and women should be equal towards it.
Post-Independence
As India got Independence in August, 1947 and the Constitution came into the force on 26th January, 1950, the idea of Sex-Equality(Article 15, The Constitution of India) (which was Article 9 in the draft of the constitution in 1948) and women empowerment came into the picture.
Article 9 was read as –
“In particular, no citizen shall, on grounds only of religion, race, caste, sex or any of them, be subjected to any disability, liability, restriction or condition with regard to – assess to shops, public restaurants, hotels and places of public entertainments.”
There were many suggestions given for this Article by different persons. Mr. Chidambaram Subramaniam (an Indian politician and Independence activist also known as the political father for green revolution) said that discrimination by the State in the aforementioned matters is prohibited. He suggested eliminating the phrase “In particular” and substituting a different clause, 9(1a), which should be interpreted as-
“No citizen shall, on grounds only of religion, race, caste, sex or any of them be subjected to any disability.”
Further Mr. Syed Abdur Rouf also give the suggestion to insert the word “place of birth” in place of “sex” to give the wider scope so that no one face the discrimination on the basis of their place of birth. And this amendment was accepted in the debate of constituent assembly.
Finally After all this discussion, “Right to equality” was inserted under Article 14 under the Indian Constitution. The President of the Constituent Assembly Dr. Rajendra Prasad, dated on 3 November 1949 presenting its revised Draft of the Constitution in which the Drafting Committee (Dr. B.R. Ambedkar was the head) mentioned that – “We have considered it more appropriate to split this article into two parts and to transfer the latter part of this article dealing with ‘equality before law’ to a new article 14 under the heading ‘Right to Equality‘”.
Article 14 read as-
“The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.”
The outlook of the constitution’s maker was to give Right to equality to all the citizens as the fundamental Right which ensures equal status, gender justice, equal opportunity and remove any type of Discrimination.
Current Scenarios
India has many laws in which the victim can seek the remedy. Such as Dowry Prohibition Act, Section 304A (Talks about Dowry death which was added after the amendment in Indian Penal Code, 1860, in 1986) and Section 498A of IPC, 1860 (added after the amendment in the IPC in 1983. The Section 84 of Bhartiya Nyaya Sanhita, 2023 deals with the same provision i.e. 498A IPC. The Protection of Women from Domestic Violence Act, 2005, offers a comprehensive legal framework in India, allowing victims to obtain protection orders, residence orders, and financial relief. Additionally, legal aid services offer crucial guidance and representation to navigate complex legal processes.
Courts play a pivotal role in ensuring justice for victims. Empowering victims to testify without fear of retaliation through protective measures and anonymity safeguards is vital. Law enforcement agencies must receive specialized training to identify signs of abuse, conduct thorough investigations, and ensure the safety of victims during interventions.
Protection officers, designated under the PWDVA, 2005, play a crucial role in implementing court orders and providing ongoing support to victims. Regular monitoring and evaluation mechanisms are essential to assess the effectiveness of interventions and improve services continually.
However, there is a strong section in the society that claims it is the myth that equal status is provided to the women in India. The women are facing various types of violence (means the intentional use of the force, power, or threatened against oneself, or another person which also include a group or the community) and abuses (refers to the misuse or maltreatment of the power, control, or we can say trust in the relationship ex- husband and wife relationship, to harm the another person) within their own home. These violence includes the Domestic violence, Dowry death, Martial rape etc.
Incase, You wish to discuss, and talk on any such matter that, ‘You may need help with’. Feel free to contact us. Our team at www.legalwellbeing.in shall be happy to assist. We’ ll read more about the related legislation in context to domestic violence and laws.
Written by Ms. Tanishka Jain in assistance of the Team .
Related Articles Domestic Violence-India Cruelty and Violence by Wife. Marital Rape- Domestic Violence ?
Frequently Answer Questions
Q1. What is domestic violence?
Domestic violence, also known as intimate partner violence (IPV) or domestic abuse, refers to a pattern of behaviors used by one partner to maintain power and control over another partner in an intimate relationship.
Q2. How is domestic violence defined by the United Nations?
The United Nations defines domestic abuse as a pattern of abusive behavior toward an intimate partner in a dating or family relationship, where the abuser exerts power and control over the victim.
Q3. What are the common types of domestic violence?
Common types of domestic violence include physical abuse, emotional/verbal abuse, psychological abuse, sexual abuse, and financial or economic abuse.
Q4. What are some signs of physical abuse?
Signs of physical abuse include unexplained injuries such as bruises, cuts, burns, or fractures that lack a consistent or believable explanation.
Q5. How is emotional/verbal abuse manifested?
Emotional/verbal abuse involves behavior aimed at causing emotional pain or distress, such as name-calling, humiliation, intimidation, threats, or constant criticism.
Q6. What is psychological abuse?
Psychological abuse involves manipulation tactics, such as gaslighting (making the victim doubt their own sanity), controlling behavior, isolation from friends and family, or threats of harm.
Q7. What is sexual abuse?
Sexual abuse refers to any non-consensual sexual activity or behavior, including rape, unwanted touching, coercion, or forcing the victim to participate in sexual acts against their will.
Q8. What constitutes financial or economic abuse?
Financial or economic abuse involves controlling the victim’s financial resources, withholding money, preventing access to funds, or forcing the victim to hand over their earnings.
Q9. What were the laws concerning domestic violence pre-independence in India?
Pre-independence, traditional patriarchal beliefs perpetuated gender inequality and discrimination against women. Laws were scarce, and societal norms often condoned violence against women.
Q10. What are the current legal protections for victims of domestic violence in India?
Laws such as the Protection of Women from Domestic Violence Act, 2005, and Section 498A of the Indian Penal Code offer legal remedies and protection for victims of domestic violence in India. Now, Section 84 of Bhartiya Nyaya Sanhita, 2023 (BNS) deals with the same provision. Courts and law enforcement agencies play crucial roles in ensuring justice for victims and holding perpetrators accountable.
