Law regarding domestic violence in India

Reading time: 8-10 minutes.

At a time when the whole world is battling with the virus and the Government is imposing stringent regulations to ensure the safety of its citizenry, there has ironically been a surge in the number of domestic violence cases across many households in the nation. Domestic violence accounts for intimate terrorism, and is more of a predicament than “The stock of liquor has been exhausted.” It is a concern of utmost contrition that social stigmas and prevailing orthodox cultures make it demanding for the victims to even consider themselves as victims because they believe that there is nothing faulty with the process and most of them fear about being abandoned without food and shelter if they try to raise their voices, especially if there are children involved; their fear of staying is overpowered by their fear of leaving.

Mr. Hans Kluge, Regional Director of World Health Organization has recently quoted “Countries are reporting up to a 60% increase in emergency calls by women subjected to violence by their intimate partners in April this year, compared to last”. The catastrophic impact of domestic violence cannot be mapped down solely to loss of physical integrity. The scars on the mental health of a person do not tend to be as obvious as scars from sticks and stones, but the impact may be cavernous and something that they might carry to the other side of their grave.

Probable reasons for this surge

Home is surmised to be a safe haven, then why has domestic violence emerged to be an intrinsic part of locked down India? Contributory factors to this raging issue could be stress and associated risk ingredients including but not limited to, joblessness, frustration, reduced income, scarce resources, alcohol abuse, and almost negligible social support.

Gender roles dictate that men should be burdened with the onus for providing for their families. Inability to do so results in frustration. Evidence has also shown that eating nutrient deficient meals also results in leading to a loss of self-control. The probability of witnessing domestic violence is 6 times greater in households who are persistently food-insecure. In the current scenario, having uncertain or limited availability of nutritionally adequate food or the ability to acquire them means lacking control over one part of their lives which they are entitled to fulfill. This, in turn, results in overcompensating and being more dominating in their relationships and domestic lives, which further leads to unanticipated quarrels and arguments. Any further trigger finally sets off intimate partner abuse. Such violence exhibits a tendency to explode in multifarious forms such as physical, sexual or emotional.

The vehemence could also be fuelled by other factors such as the desire to exploit their spouse for personal benefits, the flare to be in a commanding position all the time showcasing their supremacy, so on and so forth. Moreover, such women who are abused are most likely to possess common attributes which include low self-esteem, a traditional upbringing and stereotypical behavior about marriage and severe stress reactions. They are also likely to have been raised in households where their family members were subjected to domestic violence. Right from the onset, men and women are differentiated and preached about the kind of responsibilities one has to shoulder without even reflecting on what they are capable of doing as an individual.

Battered Women Syndrome- Do our women deserve it?

Battered Women Syndrome was first recognized by Dr. Lenore Walker in the 1970’s wherein she tried to explain the psycho-social condition of a woman suffering from domestic violence in her book “The Battered Women”. She wanted to describe the unique patterns of behavior which a woman goes through physically and mentally that can develop when a person experiences violence and they try to find ways in order to survive it. There is an entire cycle of abuse which Walker had discovered while studying this theory known as the ‘Walker Cycle Theory’ which consists of three stages:

• Tension Building Stage: This is the first phase where the verbal fights between the man and the woman starts.
• Acute Battering Stage: This is where the husband is filled with uncontrollable anger.
• Love Contrition: The final stage where the husband apologizes to his wife and promises to never do it again.

Bound by socio-economic factors beyond their control, these women are trapped within the cycle of violence.  Further, Battered Women Syndrome creates a sense of helplessness in these women, where they believe that legal recourses will fail them.  Hopelessness and ‘learned helplessness’ may lead such women to be convinced that it is impossible to escape; even when escape is objectively a possibility or other options of liberation are ostensibly available to them.

The psychology and the reason behind why battered women do not leave their spouses despite the torture in most of the cases is because the woman loves her husband and is not ready to leave him; she rather blames herself for not keeping the spouse happy and continues to carry the entire emotional burden and responsibility of the family with her.

Laws regarding domestic violence in India

Laws in India have been enacted that deal directly with domestic violence: The Protection of Women from Domestic Violence Act, 2005. The Dowry Prohibition Act, 1961, and Section 498A of the Indian Penal Code, 1860.

• The Protection of Women from Domestic Violence Act, 2005 is a civil law which ensures the protection of not just married women against men, but also women who are in live-in relationships, as well as family members including mothers, grandmothers, etc. Within the ambit of this law, women can pursue safeguarding against domestic violence, abuse, battery and may further claim financial compensation and the right to live in their shared household. She may even ask for maintenance from her abuser in case they are living apart. This law is to guarantee that women do not get kicked out of their own homes and are able to sustain themselves in case they have faced violence. Under this Act, a Magistrate can pass a protection order to ensure that the abuser does not contact or is in close proximity to the survivor.
• The Dowry Prohibition Act is of a criminal nature, within which the givers and takers of dowry may be prosecuted.  Dowry demands constitute a reason for domestic violence in many households in India, which is why it becomes a necessity to have such laws in place. Under the provisions of this Act, if someone takes, gives or even demands dowry, they can be punished with imprisonment for a period of 6 months or a fine of ₹5000 may be levied on the offender.
• Section 498A of the Indian Penal Code is another criminal law that exists to keep a check on violence occurring within the four walls of one’s home. Section 498A of the Indian Penal Code states “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.” Cruelty has been given a broad scope and may refer to any conduct that leads a woman to commit suicide or which causes grave injury to her life or health, including the aspect of mental health. It further includes harassment in the name of dowry.

Landmark case laws

• Hiral P. Harsora And Ors V. Kusum Narottamdas Harsora And Ors. (2016)

In a landmark judgment, Justices Kurian Joseph and R F Nariman broadened the scope of the Domestic Violence Act by ruling the deletion of the words “adult male” from the provisions under section 2(q) of the Act, thus paving the path for women and even non-adults to be prosecuted for causing domestic violence or harassment to any married woman within her household.

• Lalita Toppo v. State of Jharkhand & anr. (2018)

In this case, the apex Court of India categorically held that a woman may claim maintenance from her abuser under the Protection of Women from Domestic Violence Act, 2005. The Court further stated that the victim need not be legally wedded to the offender in order to do so. This means that even an estranged wife or live-in-partner may invoke the provisions of this Act. Section 3(A) defines “domestic violence” which also constitutes “economic abuse”. The victim would also be entitled to a shared household under this Act, and will not be limited by Section 125 of the CrPC which solely grants relief.

• Binita Dass v. Uttam Kumar (2019)

In a very recent judgment of August, 2019, Justice Sachdeva of the Hon’ble Delhi High Court passed an order stating that a wife may not be denied interim maintenance by a Magistrate on grounds that she is a self-sufficient qualified person and has the capacity to earn. She must be granted compensation regardless of her abilities to sustain her own self.

• Ajay Kumar v. Lata (2019)

Justice Dr. Dhananjaya Y. Chandrachud and Justice Hemant Gupta held in this judgment that an aggrieved wife or a female living in a relationship in the nature of marriage may file a case against not just her husband or male partner, but may also seek protection against a family member or a relative of the husband or the male partner, under the provisions of section 2(Q) of the Protection of Women from Domestic Violence Act, 2005.

Domestic violence helpline numbers

The National Commission for Women, the apex National level organization of India, with a mandate of protecting and promoting the interests of women, has released an Emergency WhatsApp number for the entirety of the duration of the lockdown.

Women experiencing domestic abuse and violence in the face of COVID-19 may reach out at: +91 7217735372

• The universal number for women in distress is 1090 and 181 for domestic abuse.
• Women’s Helpline in Mumbai: 1298
• Women’s Helpline in Bangalore: 1091 (24*7)/ 080-2294-3225
• Women’s Helpline in Delhi: 10921/ 011-2338-9680
• Women’s Helpline in Pune: +91 8793088814/5/6
• Joint Women’s Programme in Bangalore, Chennai and Kolkata: 011-24619821

Conclusion

Good design is not just about aesthetics, but being able to do justice for which it was designed. Well-meaning organizations have designed helplines to assist women suffering from domestic violence during COVID-19. But if only 38% of Indian women have access to smartphones, then this intervention design is as useful as a pencil tied to a brick or worse yet, exclusionary in nature. Technology needs broader social mediation to be empowering in the long run.

People in rural areas need to be educated and made aware about the remedies available to them; perhaps locating potential disseminators of information through snowball sampling-being able to pass information about guidelines to a couple of women in a particular village community, who will further have the responsibility of spreading it to other women, might be an idea to build upon. Simple solutions can be designed, like in olden times, people could mark houses/places with symbols to convey a message regarding violence or abuse. A sickle would convey one, a tick mark another. Distress signals could be identified with as simple a gesture as women requesting a particular set of songs on the radio.

The need of the hour is that Governments should increase investment in civil society organizations, appoint people to educate the masses, declare ‘shelters’ as essential services, continue to prosecute abusers and hold individuals convicted of violence, in prison. Further, we need to stop using gendered lens for designing solutions for a crisis as nauseating and equally disturbing for both the genders. If we are sick of the narrative that is currently going on about men, we need to change it; we need to get involved. We need to make amends by breaking existing norms and reporting any case of violence within our knowledge, instead of burying it in the face of normalcy. The day a victim becomes a survivor, will be the day our society achieves a colossal victory.

Author: Yashasvi Kanodia from NMIMS School of Law, Mumbai.

Editor: Priyanshu Grover from Symbiosis Law School, NOIDA, Uttar Pradesh.

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Analysis: Delhi fire

Reading time: 6-8 minutes.

A few months after the Karol Bagh Hotel fire massacre, another tragedy has been struck in Anaj Mandi, Delhi. Almost 43 lives have been reported to be dead and several injured in the said incident. It took place in the early hours of December 8, 2019, where a massive fire broke out on the second floor of a four-storey building located in an area designated as residential.

An unauthorised manufacturing unit was being operated inside the building which was responsible for the employment of numerous workers. The building covered an area of approximately 500 m² and had just a single door which made the rescue of the trapped personnel extremely difficult.

The window grills and meshes of metal had to be cut off to enter the property. Only a single fire tender was sent at a time because of the narrow congested lanes. Despite having two staircases, only one was functional as the other one was blocked by stocks and supplies.

The structure was not in possession of a fire clearance and lacked proper ventilation. The property was filled with a lot of inflammable items such as plastic sheets, cardboards, rexin, etc. The major reason for the fatalities was due to asphyxiation as the workers were sleeping around the machines when the fire broke out.

Affixing responsibility:

As a preliminary action, the proprietor of the said property has been taken into custody along with the manager to ascertain the problem. The owners and the management do play a vital role in the negligent behaviour regarding the incident, but the administrative authorities are also to be looked upon as the building had no fire clearance and still it was functional.

This event coincidentally happened before the Assembly Polls, where the opposition can now raise a huge question on the administrative wing of the AAP Government as it is responsible for the labour and civic services in Delhi.

The weak enforcement of regulations and casual attitude towards the illegalities has raised the occurrences of these tragic incidents. The government officials are also to some extent responsible for aiding and abetting in these incidents as crucial safety rules are being ignored and licences are still granted to these establishments to conduct unauthorised activities.  

Legal principles involved:

The property comes under the purview of Delhi Laws (Special Provisions) Act, 2006 which lays down the provisions for protection of illegal/unauthorised construction from being sealed. Various other acts are also to be considered for the same, such as The Factories Act, 1948, which deals with problems of occupational safety and health in factories.

Proper internal inquiries among the administrative departments should be commenced for overlooking various substantial violations across the civic bodies. The laws and provisions are properly made for keeping an elaborate check on the illegal and unauthorised activities, but the lack of effective mechanism for the same has become one of the main reasons of these illegal activities to continue in plain sight.

The main effect that the lack of initiatives for systematic mechanisms incurs is of the absence of any viable accountability. The government entities must be held accountable for such misconduct along with the wrongdoers. The fast-track courts are the best alternatives to get justice to the victims in these scenarios.

Public reaction:

The general masses have shown great empathy towards the victims of this tragic incident. Furthermore, great concern regarding the conduct and functioning of the administrative wing of the government has surfaced in the minds of many.

Questions in respect of operation of the appropriate authorities to keep a check on the illegal activities and to maintain a common standard for the potency of the business and establishments have been raised in social media as well as in newspapers and magazines.

People on a large scale have raised their voice for the introduction of a proper mechanism to eradicate the erroneous practitioners and to prohibit the implementation of illegal spheres of trade and commerce.

There are also very conflicting views amongst the audience as to who should be blamed for the same as on one hand the establishment is unauthorised and doesn’t abide by the provisions. On the other hand, it is providing livelihood to many workers and is bread and butter to many.

How can we save ourselves in a similar circumstance?

The feeling of fear rushes into one’s whole body and soul when he/she is trapped in a dangerous situation. The most important thing that strikes the mind is to eradicate that fear by saving one’s own life.

It’s not easy to tackle a situation such like this, but one must try to make the most out of his/her efforts to be safe and sound. There are some important things that one should do when he/she is stuck in a building which has caught fire:

• One should never ignore a fire alarm. The first reaction should always be to take your keys, forewarn the persons around you, and go.
• One should act promptly but try to maintain his cool.
• One should stay low in cases of smoke and fumes.
• Don’t search for valuables; just make the run for the exit.
• Don’t use the fire extinguisher unless you know how to.
• Wake anyone who’s asleep so as to make them totally aware of the situation.
• Feel the doorknob, with the back of your hand, if its warm then there may be fire on the other side of that door.
• If the smoke is coming in, the door should be closed down tightly so as to keep the smoke from spreading around.
• One should never use lifts or elevators in these situations as they are not normally fitted with a fire detection system.
• One should slam doors as they leave so as to confine the fire or smoke as much as possible.
• If the fire alarm is in the vicinity, do pull it.
• One should move towards an open area or if a building has a designated assembly area which is safe, do head there.

Conclusion:

Public safety is a serious issue and it must not be compromised at any cost. It is the duty of the proper authorities and of the government to chart a course with a novel nature which should make the procedure of inspection or examination much easier and efficient.

In the race of development especially in the urban areas, the wrongdoers are indulging in shortcut methods to earn money more quickly and also to escape from the clutches of proper regulations. This has not only encouraged more and more people to act the same, but they have no fear of punishment for misconduct.

With the strong enforcement of regulations along with easier and efficient procedure for procurement of different licences for a commercial establishment, the general notion among the people will definitely change and will bring about welfare in the commercial society as well as the administrative body. The new occupational safety code must be amended in such a way so as to adapt to the needs of both the employer and the employee.

Author: Jatin Bhudhiraja from Amity Law School, Noida.

Editor: Farsana Sadiq from Faculty of Law, Jamia Millia Islamia.