Monday, October 05, 2009

Domestic Violence Part 1 - Legal Aspect


DISCLAIMER: THIS POST SPEAKS ABOUT ONE OF THE MOST SENSITIVE TOPICS – DOMESTIC VIOLENCE. I INTEND TO COVER ALL THE IMPORTANT ASPECTS RELATED TO THIS TOPIC WHICH INCLUDE LEGAL ASPECTS, JUDICIAL ASPECTS, ADMINISTRATIVE ASPECTS AND FACTS. THE VIEWS POSTED HERE ARE PURELY MINE. I REQUEST YOU ALL NOT TO GENERALIZE THEM AND ACT PURELY BASED ON THEM. THIS POST WILL BE DIVIDED IN TWO OR MORE PARTS. IF ANY OF YOU HAS ANY DIFFICULTY IN UNDERSTANDING ANY TERM, THEN PLEASE LEAVE YOUR QUERY IN THE FORM OF COMMENT AND I WILL ANSWER IT TO MY BEST KNOWLEDGE.

Part – 1. The Law

So many bloggers on this blogsphere have written something related to women suffering from physical abuse by her husband, so many newspapers and news channels report various news about dowry death, or torturing a woman to an extent that she decides to end her life rather than living in such a terrible state. Such cases which catch the public eye through the medium of media are very few. The numbers in the limelight are not even 10% close to what is actually reaching the stage of a police complaint against the accuse (which is a husband always, that is what I have seen at least). Additionally, there are very few people (again, usually women) who actually file a complaint against the party who has been accused of physical abuse, mental torture and/or dowry demand. Most of them prefer to keep quiet about this due to various reasons like family and society pressure, no or minimum financial support, future of kid/s , inefficiency of legal system and so on and so forth.

My intention for writing this post is not to give anybody a negative picture of either the judicial system or the administrative system. I simply want to put forward the picture that I have seen so far in my practice. I have never been directly involved in these matters – in a lawyer’s term, we call it family court practice – but, I have referred to, studied and come across many such cases that fall within the purview of domestic violence.

Earlier, there was only one section – Section 498-A of Indian Penal Code (popularly known as IPC) which protected a woman who had become a victim of domestic violence by her husband or his relative/s. But in the year 2005, a new law – The Domestic Violence Act, 2005 was enacted that specified the smallest of detail that can cause torture and/or physical as well as mental harassment to a woman.

What does the Law say?

Our Judicial system considers the harassment of the women as a criminal offence. Section 498A of IPC says that: S/498-A – Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine. Explanation-For the purpose of this section, "cruelty" means-

(a) Any willful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health whether mental or physical) of the woman; or

(b) Harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her meet such demand.

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. Explanation I.-For the purposes of this section,-

(i) "physical abuse" means any act or conduct which is of such a 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;

(ii) "sexual abuse" includes any conduct of a sexual nature that abuses, humiliates, degrades or otherwise violates the dignity of woman;

(iii) "verbal and emotional abuse" includes-

(a) insults, ridicule, humiliation, name calling and insults or ridicule specially with regard to not having a child or a male child; and

(b) repeated threats to cause physical pain to any person in whom the aggrieved person is interested.

(iv) "economic abuse" includes-

(a) deprivation of all or any economic or financial resources to which the aggrieved person is entitled under any law 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;

(b) disposal of household effects, any alienation of assets whether movable or immovable, valuables, shares, securities, bonds and the like or other property in which the aggrieved person has an interest or is entitled to use by virtue of the domestic relationship or which may be reasonably required by the aggrieved person or her children or her stridhan or any other property jointly or separately held by the aggrieved person; and

(c) prohibition or restriction to continued access to resources or facilities which the aggrieved person is entitled to use or enjoy by virtue of the domestic relationship including access to the shared household.

Explanation: II.-For the purpose of determining whether any act, omission, commission or conduct of the respondent constitutes "domestic violence" under this section, the overall facts and circumstances of the case shall be taken into consideration.

to be continued...

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PS: The explanation given above is what the Law says, whatever is written in the law books has been mentioned verbatim and not the tempered or modified version. How the law works outside books, that will be explained in the next post.

53 comments:

  1. Very impressive...great effort!!
    This post of yours helps us know what the law really says!
    Its a really sensitive topic and till now u have handled it well.
    Many times these laws are misused..this gives the picture that thr are loopholes in our system.

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  2. finally the lawyer speaks up...

    But we need to implement this in the grass root level. After the law puts the husband behind the bars, who will feed them ???

    hope this blog helps other female bloggers !!!!

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  3. Now, i await the next post. For in it, i guess there will be more on the application of the law.

    for in my humble opinion, the law and its application are two different things...

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  4. @ NR, thank you for appreciating the efforts..well it does speak about what law says, but as kavi has said rightly here, the law and its application are two different things...

    @ asit dhal, my intentions for this post are to make not only female bloggers, but everyone...because when there is a case filed for domestic violence, the whole family suffers...i am trying to put forward the picture that I have seen in this field so far...and even if this post helps one person, I will be more than happy..

    @ Kavi, you have hit the nail on the head...facts are so very different from what is mentioned in the law books...thank you..

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  5. waiting for your next post ..I have seen many cases where the women have abused this law and harassed their inlaws...I am =eyewitness to such people where whole families were destroyed because of this law.

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  6. That's written very nice.. But i felt sad reading it..

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  7. This is the most amazing undertaking you could think of. Hats off to you, lady! I will be following these posts closely. This awareness is required. Thank you for sharing the aspects, waiting for the next part. :)

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  8. Exllent, well presnted facts..thanks a lot..
    I have started a new blog," Ek sawal tum karo"...this is trying to tackle( so far hasn't become focused,though...due to some unavoidable causes), women related issues, our redandent lawas( particularly India Evidence Act column 25/27,and environment. I expect co-authors raise questions or reply to the questions alraedy been put across...It would be great if u could become a co-author...please find time to go thru, whatever is there & let me know...I will be really grateful..

    You have started something which badly needed...our causes match...thus the invite....

    http://shamasansmaran.blogspot.com

    http://lalitleah.blogspot.com

    Its here that I have been fighting a lone against terrorism...& the reasons why insugency cannot be stopped, untill changes in the laws are made..

    Caption: "Gazab Qanoon"," Jimhen naaz hai hidpe...",Meree aawaaz suno"...written after the mumbai terror attack.
    Also " Pyarkee raah dikha duniyako"...written after Gujataar communal riots.Will b ever so grateful if u find time to go thru all this..

    http://kavitasbyshama.blogspot.com

    Particulary:
    " Ek hindustanee kee lalkaar phir akbaar"
    Other blog links r listed on the profile.

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  9. That is the advantage of having good friends.Thank you for the update and I am sure this post will be read very seriously.
    You must have read about the latest incident aboard AI flt two days ago.Should the pilots have arrested?

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  10. excellent post..sorry, bit hurry so culdnt read it, but surely will come back and read it fully. TC, keep writing.:)

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  11. Informative...

    Good way to share through this blog..!!
    Keep it coming..!!

    :)

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  12. Hey Neha...as i started reading the post i thought yu'd mention 498 A and yu did!, y i say bcos i know a friend , he is one of the victims of 498A.Agree that women are vulnerable in a marriage and in the society, but dont yu think this Law can be an advantage for them as well? After all it says imprisonment for conduct and many more categories. Am not biasing your statement am just relating this to my friend who was a victim of this and still continue to be... Thanks for sharing again..tc

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  13. Thank you for taking up this subject.
    I must say that this is so very enlightening.
    Didn't knew that there is a law for this...

    "verbal and emotional abuse" includes-insults, ridicule, humiliation, name calling and insults or ridicule specially with regard to not having a child or a male child"!!
    I mean, this is so form of abuse is very common in India!! It would be interesting to know the no. of cases actually registered for emotional abuse due to not having a male child or being childless!!

    Thank you for sharing this informative post!
    Keep Blogging!

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  14. Abuse happens in many forms. I have seen women who are totally devoid of any self esteem as their husbands have completely shattered their confidence by constantly attacking them verbally. They however have not been physically abused though.
    I think more than the law, the onus is on the parents of girls to teach them to be aware. They should be taught to be non-tolerant toward abuse of any form. If the law supports them, then it is a bonus.
    Also just legal aid is not enough. There should be shelters built by the government for the abused women. There should be training offered to rehabilitate them.
    Is it a very long comment? Sorry, got a little carried away. This is one of those topics...

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  15. Great job Neha. Layman needs information such as these so that we are aware. I am looking forward to reading how the law works in practice

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  16. @ antarman, thank you for ur comments...I am going to include all the aspects from different point of views...you will have to be patient for that but :)

    @ swatantra, the person who suffers knows how very sad it is...thank u for ur comments

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  17. @ sreya, awareness is indeed required...we all know the general thing, but the actual law and its implementations are very much required...

    @ shama, welcome here...thank you for considering me as a candidate for co-authoring your blog...I will surely go through your blog in a day or two and get back to you...thank you once again..

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  18. @ bk chowla, thank you for your wonderful comments and encouragement due to which I wrote this post...the awareness for this particular law is required...my views on the AI issue, i will post on your blog as a comment shortly..

    @ ZB, no prob dude...have a safe trip...tc :)

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  19. @ Vinz, thank you..

    @ HaRy, really sad to know about your friend...the post here is purely what the law says...my views shall follow in the upcoming post/s...and I promise you one thing, it is not going to be biased...I am not writing this post to defend women, but my intentions are to convey the message to people about the implications of the law...how they can save themselves from the false allegations etc...

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  20. @ shilpa, the domestic violence act has been in existence for last four years, but IPC has been there since 1860...many people ain't aware about the actual laws...this is the reason, I included the legal part in the very first part so that people should know what does the law say...a story-type/article type post would have been understood by them better, that will come too in the next part where I will explain the other aspect whereby I am at the liberty to use my own point of view and language..

    @ science blogger's association, thank you..

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  21. @ aparna, I agree with you...the parents should teach their children to be non-tolerant toward abuse of any form...additionally, one subject in the higher secondary schooling should be there on general laws and rights, that's my opinion... and no re, the comment is not at all long...thank you for your honest opinion..

    @ insignia, well yeah, it is important for all to know the law... i will try not to disappoint u in the nxt post..

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  22. @ pak karamu, welcome here..

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  23. Very interesting. On the face of it, the law is taking a broad view of abuse. Can't wait to read how it is actually being put into practice.

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  24. Excellent narration of what the law "says". Hats off to you. Now eagerly waiting to see how the law is applied in India.

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  25. Awareness has to be brought at grassroot level, as on of the blogger rightly suggested. My cousin & his family (including aged mother) had a reverse case of getting harrased by the girl. The boy & his family were lied about girl's age at the time of marriage, when after 2 years, the correct age was disclosed, girl was almost 40 years (heading to menopause), but when questioned on this (about lying the age), instead of discussing or reasoning, boy's family was threatened & finally slapped with DVA. It was a gross misuse of the law (case is still going on, but boy's family is totally broken with humiliation, harassment in society and uncalled for expenses (not to mention his professional life jeopardize.

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  26. neha my husband is a criminal lawyer and that is why I am aware of legal matters
    even i wanted to write something on this
    very informative

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  27. Hey Neha,in u r blog after a long time..quite a sensitive n a useful posts for a lame guy like me!ENLIGHTENED..waitin 4 u r nxt post:)

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  28. gr8 job neha...wish i had met u during my recent visit to the great amchi mumbai..god willing v ll catch up some time..now that u r your own boss, i will have to send my cv to u...hehehe...

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  29. That was a very informative one Neha. :)
    Thanks for bringing this up. Waiting for your next post. :)

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  30. A very informative post..Hope it generates some awareness on the legal aspects and helps any fellow women bloggers who are suffering from any such problems..Like everyone here, waiting for the next post..

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  31. good start good explanation

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  32. congrats for new blog !
    Did not find any post . Wish you all the best .

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  33. @ mama zen, thank you for your comments...

    @ SG, thank you...you are one of the persons who inspired me to come up with this post...so thank you for that...:)

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  34. @ Anonymous, that is a very sad thing...I am sorry to hear that...but again, this has happened as the law has been made way too broad...I repeat, I have mentioned what law says in this post...in the upcoming post, i am not going to be biased, but will be mentioning the facts and my personal experience..

    @ Anil P, welcome here...thank you for your comment..

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  35. @ anjugandhi, why don't you write something about this...the purpose behind this post is to spread awareness..and we have different reader's base...it is a topic which needs to be told about...and you have a great help to as your husband is a criminal lawyer, he must have come across many such cases...

    @ Benny, thank you for your comments...I am glad you liked it..

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  36. @ R. Ramesh, yeah we will surely catch up...:)

    @ Destiny's child, welcome here...thank you for your comments...:)

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  37. @ Novice writer, I hope this helps everyone suffering from domestic violence or wrong accusation on them on their family for the same offense...thank u..

    @ sm, thank you...I am glad you liked it...

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  38. @ apanatva, the new blog was started yesterday itself...thank you for joining it and encouraging me...the post will be there soon...thank you again...:))

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  39. Finally I have got time to read the post at one shot :( believe me I have come here many times and then something or the other came in between :(

    This was very informative. But from a layman's point of view I know that the law only specifies certain aspects in general, it can't mention each and everything in minute details.So, when a practical case comes, how does the lawyer and the judge handle that? Do you try to break the case and fit the pieces into whatever section it is applicable? I mean i am more interested in knowing the practical aspects of it and more importantly how people abuse it?

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  40. hey, cant help from commenting..
    "blogger" ka "lawyer" jaag gaya:))
    or "lawyer" ka "blogger" jaag gaya :D:D

    informative piece!!

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  41. @ Mustaf, good, finally you could read the complete post...well if you have read the clauses mentioned above closely, you will realise that they indeed mention even the smallest of the details...and how does it work ie the practical aspects, that will follow in the upcoming post/s..

    @ wishesgalore, lawyer bhi jaaga, blogger bhi jaaga and baki sab bhag gaya :D

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  42. as every1 said.. it was a great post..i feel a lil bit guilty not knowing this even though pple may call me educated.. thanks for educating the educated.. i may know engineering.. but surely not law.. i highly recommend u to write atleast 1 post per week on law..
    now i know who is going to be my future lawyer..;).. no fees for me rite??

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  43. Holy Cow!!! That was scary!! The lawyer wakes up now and How!!
    Calling names - in effect teasing is unlawful!!! so husband cannot lovingly tease the wife!!! You are scaring people now!!

    Well well well... that was an insightful ( at the same time scary) post. Getting to know the law is a definite advantage. At least people will know the hows and whats. But most important question here is do all women stand up for stuff like this. Or rather how many women actually raise their voice against the harassment. Having a law by the book serves no purpose unless it is implemented by law with efficiency. I think its time also to spread awareness amongst the women folk about this. More importantly, it would be better if women today are trained to be independent and courageous enough not to face these circumstances in the first place.

    Very informative and well written

    rammy

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  44. @ Vishnu, thank you for your comments...there is no need to feel guilty about not knowing the exact law...however, we all should have the general idea about it for our own benefit...and about one post on law each week, well, whole day I am doing law related stuff...blog is one place where I can write about other things that matter to me or amuse me...but u can anytime leave a comment if you need to know anything...I wont charge you for replying to your comments..:)

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  45. @ Rammy, scary? well yeah, the truth is actually scary...the point here about calling names is mainly abuses...if you have seen husband and wife fighting in public, then you will know exactly what the law means...

    even I hope that women start standing up for their right...majority of them do not raise their voice...and some even fake it all out...watch out for my next post :)

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  46. This comment has been removed by the author.

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  47. @ Varsha Shrote, thank you for your comments..I am glad my post is helping so many people...thank you indeed for the encouragement..:)

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  48. This is really a very informative and helpful post, Neha. I am sure a lot of women would benefit from it..

    Thank you!

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  49. Looking forward to the following posts, Neha. I shall link to this one, with your permission.

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  50. Sue, you can for sure link this one :)

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