Laws for Domestic Violence Survivors in India

What is Domestic Violence?

Domestic Violence is any kind of behavior that can be termed as violence or harassment, especially in the “domestic” setting. Domestic violence is typically understood as violence within homes by husbands upon their wives. However, any kind of domestic abuse can be termed as domestic violence even if it is carried out by one’s in-laws, parents, or other family members.

“Domestic Violence”, according to the Domestic Violence Act 2005, includes actual abuse or threat or abuse that is physical, sexual, verbal, emotional, or even economic. Even harassment by way of unlawful dowry demands to the woman or her relatives is covered under this definition. Abuse as stated above includes harm or injury or endangering the health, safety, life, limb, or well-being (including mental or physical) of the aggrieved person.

Unfortunately, domestic violence against women is one of the major pressing problems that India struggles with. As per the National Family Health Survey data (NFHS), an estimated 37% of Indian women have experienced the violence of either physical or sexual nature in their lifetime. However, about 75% of the women who reported being abused domestically, did not take steps to get aid or help from any third person/organization/police.

In order to protect oneself and seek help against domestic violence, one must understand the meaning of it, the laws involved, and the procedure to get help. This article attempts to create such awareness.

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Laws for Domestic Violence in India

Considering the harsh reality of Domestic Violence that is persistent in India, there is an extensive legal framework in place in order to curb domestic violence, punish the wrongdoers and bring justice to the victim. Given below are the main legal statutes that cover Domestic Violence in India.

A. Indian Penal Code, 1860

Indian Penal Code is the most substantive and extensive criminal law in India. Several amendments have been made to this Code, regarding cruelties against women. One such amendment was made in the year 1983 through which a special section – Section 498A was added to the IPC. Section 498A specifically covers cruelty towards married women – by their husbands or their family.

This Section had been enacted with the aim and objective to protect women from domestic violence and dowry harassment. It also allows women’s relatives to make a complaint on the woman’s behalf regarding any such cruelty. The section has been quoted below:

Section 498A: Husband or relative of Husband of a woman subjecting her to cruelty – Whoever, being the husband or the relative of 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.

The explanations to the Section state the meaning of ‘cruelty’ to include the following:

• Any wilful conduct which is of such nature that is likely to drive the woman to commit suicide or cause grave injury or danger to her life, limb, or health (including mental health) of the woman, or
• Harassment of women with a view of coercing her or any person related to her to meet any unlawful demand for any property or any valuable security or is on account of her failure by her or any person related to her to meet any demands.

Consult: Top Domestic Violence Lawyers in India

B. The Protection of Women from Domestic Violence Act, 2005

Implemented in October 2006, the Protection of Women from Domestic Violence Act, 2005 blends together the criminal procedures and civil remedies, with the aim of protecting the women who become victims of domestic violence, by providing them efficacious remedies. The Act also covers relationships outside marriage and aims to protect other female members of the family as well, like the mother, unmarried daughter, etc.

For the first time, ‘domestic violence was defined in this Act and the purview of violence was broadened by incorporating ‘verbal and emotional abuse, ‘economic abuse’, as well as ‘sexual abuse’ along with ‘physical abuse’.

The complaint of domestic violence can be filed by the ‘aggrieved person or by a relative on behalf of the aggrieved person. The Act also includes within the definition of ‘aggrieved person’, women who are in live-in relationships with their partners. The right to seek protection against such acts has been given to women, who can file a complaint against the husband or other family members who break the law and are in a ‘domestic relationship’ with the woman. A complaint against the female relatives of the husband can also be made.

The right of women to reside in their ‘shared household’ is recognized in the Act and as she shares it rightfully with her husband, she cannot be evicted from it. In case of eviction, she has the right to seek monetary compensation and safe shelter, along with free legal and medical aid.

Medical facilities, protection officers, free-of-cost orders, etc. are provided by the Act which helps in protecting the aggrieved woman.

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The Procedure for initiating a domestic violence case as has been laid down in the Act is as follows:

1. Inform the Protection Officer– A Protection Officer can be informed about the domestic violence that has been or is likely to be inflicted upon any woman. The rights of the aggrieved woman are informed to her by such a Protection Officer or a Magistrate who receives the complaint or was present during the occurrence of the offense.

2. Preparation of a domestic incident report by the Protection Officer– The Protection Officer then makes a domestic incident report to the Magistrate. If the aggrieved person desires, the report could also claim relief for a protection order. Copies of the report should also be sent to the police officer in charge of the police station within the local limits of which the domestic violence allegedly took place.

3. Magistrate to fix the first date of hearing– The date of hearing is fixed by the Magistrate upon receiving the application from the aggrieved person or from someone on their behalf or the protection officer, which is usually not beyond 3 days from the receipt of the application by the Magistrate. It is aimed for the Magistrate to dispose of the application within 60 days from the first hearing.

4. Notice to the Respondent- A notice is sent to the Protection Officer once the date of the first hearing has been set by the Magistrate, after which the Protection Office has to inform the informant within 2 days from the date of receipt (unless an extension is given by the Magistrate).

5. Other options available with the Magistrate– The aggrieved person or the respondent can be asked by the Magistrate to undergo counseling, either singly or jointly, with a member of the service provider. A person, preferably working towards the promotion of family welfare, can be asked for help by the Magistrate towards discharging his functions.

6. Passing of Orders by the Magistrate- After hearing the domestic violence case, the Magistrate may pass a Protection Order, Residence Order, Compensation Order, Monetary Relief, or a Custody Order. Interim and Ex-Parte Orders may also be passed by the Magistrate in case he feels it to be necessary and is satisfied that the respondent has inflicted the aggrieved person with domestic violence.

7. In case of breach of the Order– If the Order passed by the Magistrate is breached by the respondent, he shall be liable under this Act with punishment up to terms extending to one year, or with a fine of not more than Rs. 20,000/-.

8.Right of Appeal – The orders passed by the Magistrate can be challenged by way of an appeal within 30 days from the date of service of the order sought to be challenged, by the party who feels aggrieved by the same. The appeal can be filed before the Court of Sessions.

Several NGOs and divisions of the Indian Government, like the National Commission for Women, have taken the initiative of organizing awareness seminars for women affected by the above Act, to attend and learn about their rights, legal remedies, and other facilities provided by the Act, etc.

C. The Dowry Prohibition Act, 1961

The Dowry Prohibition Act, of 1961 is also a statute that punishes the taking and giving of dowry, thus protecting women in their domestic setting. According to the Act, if an individual demands or takes dowry, he can be imprisoned for 6 months and/or can be fined monetarily.

Consult: Top Domestic Violence Lawyers in India

What to do if you are a Victim of Domestic Violence?

Any victim who has been wronged, whether from a physical or sexual crime, should not shy away from approaching the authorities- in order to ensure that the wrongdoer is punished so as to save the victim/ any other individual from any future infliction from a such individual, and also to seek justice. It may not be easy but one must gather courage and do the needful.

The first and the foremost step that should be taken in case of domestic violence/abuse is to approach the police immediately and/or contact a domestic violence lawyer who would guide you step by step in your attempt to seek justice. The second step that the victim should take is to immediately get a medical report (in case of sexual or physical abuse) which can be used as evidence in the court proceedings.

If the case is that the victim is not in a position/condition to approach physically for a written complaint/FIR, she should dial the Police Helpline number i.e. 100, as soon as possible. Once such a complaint is filed with the police – it shall be recorded immediately and will help the victim proceed with legal action. An FIR or a police complaint is the first step to initiate legal action against the alleged wrongdoer.

Impact of Coronavirus on Domestic Violence

The COVID-19 pandemic has taken a huge toll on not only the economy at a macro and micro level but also the very way individuals are living their lives. The lockdowns that have been imposed in India, which forced people to remain completely indoors – to lower the curve of the spread of the virus, have resulted in an alarming upsurge of domestic violence cases in the country. Contributory factors for the rise in domestic violence could be stress-related elements due to unemployment, decreased income, decreased mobility, alcohol abuse, frustration, etc. Even though several NGOs and police stations have received a huge number of calls for help against domestic violence, considering that domestic abuse is the most widely unreported offense, the chances are that the real numbers of such cases are exponentially higher. The increase of domestic violence is not only constrained to India and this trend has been seen worldwide.