SSRN Id1467890

Domestic Violence in India: Will Law Alone Change the Situation?
Meaning of domestic violence

To understand the essence of the word domestic violence first of all we should know the
meaning of the words domestic and violence separately. The word domestic means within the
realm or the territory of house. 1 And the word violence means action using physical force and
intended to hurt or kill someone to cause damage.2 Thus the word domestic violence means an
action or physical force which is being used within the realm or territory of house to intended to
hurt or cause damage any particular subject in the domestic household. In other words we can
say that it is an unpleasant and destructive natural force against the family member by one
another.
Definition according to domestic violence act

Section 5 of Protection Of Women from Domestic Violence act, 2005, defines domestic violence
as follow-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
1
Domestic Violence in Marriage: in the light of theories of Feminist Jurisprudence,
http://www.legalserviceindia.com/article/l263-Domestic-Violence-in-Marriage.html
2 th
Little Oxford English Dictionary, 6 impression2007, Oxford university press, p.785.
1
By Dr. Tabrez Ahmad , Poorva Khandekar , Kundan Kumar Ojha , Ipsita Mohanty , Priyanka Biswas
Electronic copy available at: http://ssrn.com/abstract=1467890

(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.3
Since, it has already been stated that it is the violence which takes place within the realm or
territory of house; it is palpable that the victims of such a violence will be the family members.
That is why it is to be said that domestic violence is an abuse which manifests itself when a
spouse or a family member violates another physically or psychologically. 4
Domestic Violence can take place between husband and wife, child and parent, people of same
sex as well as the people of different sex. 5 Overall it can be said to be a preliminary stage of a
crime of power and abuse. 6It is not consensual but rather a pattern of behavior used by an
individual to maintain coercive control over the other. 7
Different types of domestic violence

After examining the meaning definition of domestic violence its nature has been clarified at
some extent. The violence that is said to be used need not be physical in nature. Violence against
women can take up the forms of female foeticide, selective abortion, dowry harassment, dowry
deaths, physical abuse, mental violence, public trafficking and social humiliation. 8 But generally
It includes all kinds of threat of abuse of physical, sexual, verbal, emotional and economical
nature that can harm or cause injury to the health, safety to life, limb or well being, either
mental or physical of the aggrieved person. 9
3
Protection of Women from Domestic violence act, 2005.
4
Domestic violence , http://www.domesticviolence.in/
5
Domestic violence ,http://www.domesticviolence.in/
6
Domestic Violence in Marriage: in the light of theories of Feminist Jurisprudence,
http://www.legalserviceindia.com/article/l263-Domestic-Violence-in-Marriage.html)
7
Ibid 6.
8
Domestic Violence, http://www.domesticviolence.in/
9
Domestic violence in India, http://www.helplinelaw.com/docs/violence.php
2
Electronic copy available at: http://ssrn.com/abstract=1467890

Physical violence
The word physical means Something related to body rather than mind or relating to things that
you can see hear or feel.10 Thus, physical violence is that violence or exercise of power which
has harmed the body. It is the intentional use of physical force with the potential of causing
bodily injury, harm, disability, or death.
The Protection of Women from Domestic Violence Act, 2005 defines sexual abuse as-
Any act or conduct which is of such a nature so as to cause bodily pain, harm, or danger to life,
limb or health or compare the health or development of the aggrieved person and includes
assault, criminal intimidation and criminal force. Physical acts such as hitting, slapping,
pushing, kicking, threatening to harm constitutes physical abuse.
Mental or Psychological violence

Violence which affects the human mind is called emotional violence. It is the deliberate act of
doing something to make the victim feel diminished or embarrassed or isolated. This type of
abuse is the hardest to spot because the injury is not physical or immediately visible. People
undergoing emotional abuse are often seen to suffer from depression which puts them at an
increasing risk of suicide, eating disorders, drug and alcohol abuse.
Economical or financial abuse

Here, money is used as the means of having control over the partner. Thus we can say that
when the abuser has complete control of the victims money and other economic resources, is
called economic abuse. 11 For example, if a person is earning for the fulfillment of his or her
necessities but he is not free to spend his or her money according to their interest, there is
another person commanding the expenditures, it is called economic violence.
Section 5 clause (iv) of Protection of women from domestic Violence Act discusses economic
abuse as 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
10
Oxford pocket English dictionary,6th impression2007, Oxford university press,p.513.
11
What is financial or economical abuse, http://www.peoples-health.com/financial_abuse.htm
3
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. 12
Sexual Violence or Sexual Abuse

Sexual violence is somewhat related to physical violence, because it also violates the bodys
certain organs. It is any assault or unwanted act of a sexual nature. It can include anything from
exhibitionism and exposures to pornography to unwanted sexual touching, to rape, to injuring or
endangering the life or the victim.13 Section (3) clause (ii) of Protection of women from
Domestic violence act deals with sexual abuse as such- Sexual abuse includes any conduct of a
sexual nature that abuses huminilities, degrades or otherwise violates the dignity of
women.14Now a days child are also found to victim of sexual abuse.
Verbal abuse
Verbal abuse is giving its meaning itself as such type of abuse which hurts somebody verbally or
we can say that violence which is committed by the words either written or spoken Is called
verbal abuse. It is also called as revealing is a form of abusive behavior involving the use of
language. It is a form of profanity in that it can occur with or without the use of expletives. 15 I
12
What is financial or economical abuse (http://www.peoples-health.com/financial_abuse.htm)
13
Sexual abuse(http://education.qld.gov.au/actsmartbesafe/violence/sexual.html)
14
Bare act, protection of women from doemstic vikolence act(http://www.helplinelaw.com/docs/)
15
Verbal abuse in relationship (http://www.verbalabuse.com/3.shtml)
4
think verbal abuse is somewhat is responsible to create emotional or psychological abuse,

because if somebody verbally abuse to another then he got hurt and he started thinking and
which creates psychological abuse. The Protection of women from Domestic Violence act 2005
deals verbal and emotional abuse along with in section 3 clause (iii) of this act stated that
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; and repeated threats to cause
physical pain to any person in whom the aggrieved person is interested. 16
Perpetrators of domestic violence:

Who is a perpetrator of Domestic Violence? Perpetrator of domestic violence can be anyone
between 17- 80 years. Can be of any sex, socioeconomic, racial, ethnic, occupational,
educational, and religious group. They can be teenagers, college professors, farmers, counselors,
electricians, police officers, doctors, clergy, judges, and popular celebrities as well Perpetrators
are generally of the same age or older than the victims. Perpetrators are not always angry and
hostile. Some of them might be suffering from psychiatric problems, such as depression, post-
traumatic stress disorder, or psychopathology but all abusers are not mentally ill. Abusers differ
in patterns of abuse and levels of dangerousness. While there is not an agreed upon universal
psychological profile, perpetrators do share a behavioral profile that is described as "an ongoing
pattern of coercive control involving various forms of intimidation, and psychological and
physical abuse." Perpetrators of domestic violence need not be men only. It can be women as
well when violence is perpetrated by women in the family by mother, motherin-law, sister-in-
law, sisters, etc. While approximately 835,000 men are battered each year, men are less likely to
report domestic violence by their female partners for several reasons: shame, machismo, fear of
humiliation by police and male peers, and even fear of retaliation by their perpetrators. While
some women do commit violence to defend themselves against their male partners, they are also
capable of significant violence by their own initiative.
16
Bare act, protection of women from doemstic vikolence act(http://www.helplinelaw.com/docs/
5
Why do Perpetrator commit domestic violence?

To understand why domestic violence occurs, we need to examine the psychological makeup and
background of perpetrators. Violence towards women occurs in a specific cultural context of
discrimination against women by many means and includes physical aggression which has been
tolerated and often legitimized. However, discriminatory attitudes do not fully explain violence
against women, as not all men raised in such cultures are violent.
Men may show violence when they feel threatened or attacked by some interaction with their
partner that touches on an area of low self-esteem. The interrelated pressures, internal and
external, which can create a perpetrator of domestic violence. Perpetrators are often young,
troubled, unemployed, and of low self-esteem; they have often experienced abuse (of various
types) themselves. However, these factors do not justify their abusive behavior.
Prevalent behavioral tactics by perpetrators include:
Abusing power and control: The perpetrator's primary goal is to achieve power and control over
their intimate partner. In order to do so, perpetrators often plan and utilize a pattern of coercive
tactics aimed at instilling fear, shame, and helplessness in the victim. Another part of this
strategy is to change randomly the list of "rules" or expectations the victim must meet to avoid
abuse. The abuser's incessant degradation, intimidation, and demands on their partner are
effective in establishing fear and dependence. It is important to note that perpetrators may also
engage in impulsive acts of domestic violence and that not all perpetrators act in such a planned
or systematic way.
Having different public and private behavior:

Usually, people outside the immediate family are not aware of and do not witness the
perpetrator's abusive behavior. Abusers who maintain an amiable public image accomplish the
important task of deceiving others into thinking they are loving, "normal," and incapable of
domestic violence. This allows perpetrators to escape accountability for their violence and
reinforces the victims' fears that no one will believe them.
6
Projecting blame:
Abusers often engage in an insidious type of manipulation that involves blaming the victim for
the violent behavior. Such perpetrators may accuse the victim of "pushing buttons" or
"provoking" the abuse. By diverting attention to the victim's actions, the perpetrator avoids
taking responsibility for the abusive behavior. In addition to projecting blame on the victim,
abusers also may project blame on circumstances, such as making the excuse that alcohol or
stress caused the violence.
Claiming loss of control or anger problems:

There is a common belief that domestic violence is a result of poor impulse control or anger
management problems. Abusers routinely claim that they "just lost it," suggesting that the
violence was an impulsive and rare event beyond control. Domestic violence is not typically a
singular incident nor does it simply involve physical attacks. It is a deliberate set of tactics where
physical violence is used to solidify the abuser's power in the relationship. In reality, only an
estimated 5 to 10 percent of perpetrators have difficulty with controlling their aggression. Most
abusers do not assault others outside the family, such as police officers, coworkers, or neighbors,
but direct their abuse toward the victim or children. This distinction challenges claims that they
cannot manage their anger.
Minimizing and denying the abuse:

Perpetrators rarely view themselves or their actions as violent or abusive. As a result, they often
deny, justify, and minimize their behavior. For example, an abuser might forcibly push the
victim down a flight of stairs, then tell others that the victim tripped. Abusers also rationalize
serious physical assaults, such as punching or choking, as "self-defense." Abusers who refuse to
admit they are harming their partner present enormous challenges to persons who are trying to
intervene. Some perpetrators do acknowledge to the victim that the abusive behavior is wrong,
but then plead for forgiveness or make promises of refraining from any future abuse. Even in
situations such as this, the perpetrator commonly minimizes the severity or impact of the abuse.
7
It is equally important to acknowledge that abusers also possess positive qualities. There are
abusers who are remorseful, accept responsibility for their violence, and eventually stop their
abusive behavior. Perpetrators are not necessarily "bad" people, but their abusive behavior is
unacceptable. Some perpetrators have childhood histories where they were physically or sexually
abused, neglected, or exposed to domestic abuse. Some suffer from substance abuse and mental
health problems. All of these factors can influence their psychological functioning and contribute
to the complexity and severity of the abusive behavior. Perpetrators need support and
intervention to end their violent behavior and any additional problems that compound their
abusive behavior. Through specialized interventions, community services, and sanctions, some
abusers can change and become nonviolent.
Perpetrator and parenting

This is an emerging issue about children facing domestic violence. There are perpetrators who
have positive interactions with their children, provide them with their physical and financial
needs and are not abusive towards them. There are also perpetrators who neglect or physically
harm their children. Although abusers vary tremendously in parenting styles, there are some
behaviors common among perpetrators that can have harmful effect on children.
Authoritarianism
Perpetrators can be rigid and demanding and rigid with their children. They often have high and
unrealistic expectations and expect children to obey without question or resistance. These
parenting styles are intimidating for children and alter their sense of safety around the
perpetrator. This perpetrator are more likely to use harsher form of physical discipline which can
make the children increasingly vulnerable to becoming target of domestic violence.
Neglect, irresponsible and lack of involvement

Some abuses of infrequently involved in the daily parenting activities of their children. They
may view their children as hindrances and become easily annoyed with them. Furthermore, the
perpetrators preoccupation with controlling the partner and meeting his or her emotional needs
8
leaves little time to engage the children. Unfortunately, the perpetrators physical and emotional
unavailability can produce unrequited feelings of anticipation and fondness in the children who
eagerly await their attention.
Undermining the victim

The perpetrators coercive and violent behavior towards the victim sometimes sends children a
message that it is acceptable for them to treat that parent in the same manner. More overt tactics
that weaken the victims influence over their children include the perpetrator disregarding the
victims parenting decisions, telling the children that the victim is an inadequate parent, and
belittling the victim in the presence of the Children. Being victimized by abuse can lead children
to perceive the parent in a weaker, passive role with no real authority over their lives.
Self centeredness
Some perpetrators use their children to meet their own emotional needs. Perpetrators may
expect their children to be immediately available only when they are interested and often
overwhelm them with their problems. This can result in children feeling burdened and
responsible for helping their parent while their own needs are neglected.
Manipulation
To gain power in the home, perpetrators may manipulate their children into aligning against the
victim. Abusers may make statements or exhibit behavior that confuse the children regarding
who is responsible for the violence and coerce them into believing that they are preferable
parent. Abusers also may direct or indirectly use their children to control and intimidate the
victim. Perpetrators sometimes threatened to abduct, seek sole custody of, or physically harm the
children if the victim is not complaint. Sometimes these are threats exclusively and the abuser
does not intend or really want to carry out the action, but the threats are perceived as real.
9
How does society perpetuate domestic violence?

Society contributes to domestic violence by not taking it seriously enough and treating it as
expected, normal, or deserved. Specifically, society perpetuates domestic violence in the
following ways:
Police may not treat domestic abuse as a crime, but, rather, as a domestic dispute. Courts may
not award severe consequences, such as imprisonment or economic sanctions. Clergy or
counselors may have the attitude that the relationship needs to be improved and that the
relationship can work, given more time and effort. People may have the attitude that the abuse is
the fault of the victim, or that abuse in normal part of a marriage or domestic partnerships.
Gender- role socialization and stereotypes condone abusive behavior by men.
COMMON MYTHS ABOUT VICTIMS OF DOMESTIC VIOLENCE

Only poor uneducated women are victims of domestic violence
Victims of abuse can be found in all economic classes and can be of either sex. They can be
wealthy, educated and prominent as well as uneducated and financially destitute. Victims of
domestic violence can live in rural towns, urban cities, and subsidized housing projects and in
gated communities. The over presentation of the under privileged women in domestic violence
crime reports may be due to several factors including the fact that those seeking public
assistance and services are subject to data tracking trends that often capture this information.
Victims of domestic violence who have higher incomes are more likely to seek help from private
therapist or service providers who can protect identity through confidentiality agreements.
Victims provoke and deserve the violence they experience

An abusive tactic used by perpetrators is to accuse their partners of making them violent. This
accusation is even more effective when the perpetrator and other people tell the victim that he or
she deserved the abuse. As a result, many victims remain in the abusive relationship because
they believe that the violence is their fault. Many victims make repeated attempts to change their
behavior except for the perpetrator. T he perpetrator is accountable for the behavior and
responsible for ending the violence.
10
Victims of domestic violence move from one abusive relationship to another-

Although approximately one-third of victims of domestic violence experience more than one
abusive relationship, most victims do not seek nor have multiple abusive partners. Victims of
domestic violence who have a childhood history of physical or sexual victimization may be at
greater risk of being harmed by multiple partners.
Victims of domestic violence suffer from low self-esteem and psychological disorders-
Some people believe that victims of domestic violence are mentally ill or suffer from low self-
esteem. Otherwise, it is thought that they would not endure their views. In a fact a majority of
victims does not have mental disorders, but may suffer from psychological effects of domestic
violence, such as post traumatic stress disorder or depression. However, there is little evidence
that low self-esteem is a factor for initially becoming involved in an abusive relationship. In
reality some victims of domestic violence experience a decrease in self-esteem because their
abusers are constantly degrading, humiliating and criticizing then, which also makes them
vulnerable to staying in the relationship.
Victims of domestic violence are weak and always want help-

Victims of domestic violence are passive while others are assertive. Some victims actively seek
help, while others may refuse assistance. Victims are diverged group of individuals who possess
unique qualities and different live situations. Victims of domestic violence may not always want
help and their reasons vary. They may not be prepared to leave the relationship, they may be
scared that their partners will harm them, or they may not trust a person if past efforts to seek
help has failed.
Legal actions that can be initiated against the wrong doer of domestic violence
Innumerable women who silently suffer assaults and abuses everyday inside every second home
across the country can now perhaps look forward to a remedy that protects their vulnerable
11
position. The phenomenon of domestic violence is widely prevalent but has remained largely
unseen.
Though both the criminal and legal remedy for domestic violence perpetrated on women existed
under different sections of the Indian Penal Code (IPC), the civil law did not address the issue in
its entirety.
Extensive consultations among representatives of several NGOs such as the Lawyers' Collective,
the National Human Rights Commission, the National Commission for Women and the
Ministries of Home Affairs, Health & Family Welfare, Social Justice & Empowerment,
Elementary Education, Justice and Legal Affairs & Legislative Department during the past few
years led to the drafting of the bill, which seeks to meet the existing gap in the legal framework.
Giving details, a Ministry official told this correspondent that while giving explicit recognition to
the legislative intent, the bill will also dovetail with the liberalized provisions for maintenance
under Section 125 of the IPC.
The new legislation - which is in addition to the existing criminal law - would empower courts to
grant protection orders to victims of domestic violence and provide other relief. It also includes
new concepts such as ``civil wrong of domestic violence, the right to reside in a shared
household and the right to protection against domestic violence by obtaining protection orders
including monetary relief and custody of children orders''.
Scope Of The Protection Of Women From Domestic Violence Act 2005:-

It is a central acts extending to the whole of India expect Jammu & Kashmir. It came into force
on 26th October 2006.The offences under this are cognizable and non-bailable.
The Act covers those women who are in relationship with the abuser or where both parties have
lived together by consanguinity or by marriage, are entitled to legal protection under this Act.
Special Features Of This Act:-

It provides for the appointment of protection officer who can provide the aggrieved person with
legal aid, medical examination and safe shelter.
The Act stipulates that the magistrate shall look on the application with 60 days from the first
day of hearing.
12
It provides for rights of women to secure and reside in her matrimonial house or shared
household whether she has a title by the order of the magistrate.
Poor Law Promotes Poor Domestic Violence:-

The domestic violence and dowry laws perpetuate domestic violence, rather than curb it. The
Domestic Violence Act, 2005 as been drafted poorly. It lacks provisions for men to complain
against a woman for harassment. According to me the society is actually within us and each one
of us comprises it. This article is in continuation with the same. The failure of an individual to
comply with a particular situation is passed as a generic blame to the society and an individual
decision is presented as a societal norm.
They say society is basic to civilization and family is the unit of society, for which marriage
forms the basis. But, the way the government has formulated the marital laws, heavily lopsided
to one particular gender (the female gender), the institution of marriage is sure to break down to
an unnatural death sooner or later. The Indian Penal Code (IPC) 498A (cruelty by husbands and
relatives on married woman); Domestic Violence Act 2005, have though been conceived with an
intention to provide protection to women, have been drafted and implemented so badly, that they
have become handy tools in the hands of unscrupulous women and their parents to harass their
husbands and in-laws.
The provisions contained within these laws are very lucrative for any person wishing to use (read
misuse) to realize nefarious designs, to resist misusing these laws. The moment a complaint
comes to a police station regarding dowry harassment, without even going into the merits of the
complaint or the process of investigation, the husbands side is arrested and made to undergo
undue harassment. Such an easy provision to get the whole family arrested with a single
complaint based on imaginary and cock and bull stories can never act as a positive catalyst in
saving a marriage. Especially, when the case is taken back if ransom is paid as demanded.
Domestic Violence Act, 2005, on the other hand, is another such legal provision, which attracts a
lot of females, exasperated with their expectations of a marriage or a live-in relationship, to file
cases under various provisions and seek relief. Moreover, it makes it mandatory for a judge to
13
pass relief under such an Act, as only the affidavit of the complainant woman is taken as
evidence. So in short, allege and get relief is the mindset reflecting in the law. The concept of
matrimonial home is so badly drafted in it that going by pure literary sense, it qualifies any
household where the couple stayed together as a matrimonial home, granting the complainant
rights on it. It has started becoming a handy tool to evacuate senior citizens from the house of
their own earnings.
Moreover, allowing the woman to put in allegations without signature is another factor that
tempts the miss user of the law to intensify activities. Allowing the respondent to be convicted
on sole testimony by the complainant of non-compliance of Protection Orders passed, as under
Section 31, is directly violating Article 14 of the Constitution of India, which says, The state
shall not deny to any person equality before the law or the equal protection of the laws within the
territory of India. If that be so, how can sole testimony of one person be used to convict another
person?
Moreover, the Act also allows multiple maintenance litigations to be admitted, as under Section
20 and 22, heard and maintenance be granted in tandem with maintenance provisions under
Section 24, Hindu Marriage Act and 125 of the Code of Criminal Procedure (CRPC). This is
direct violation of Article 20, clause 2, which says, No person shall be prosecuted and punished
for the same offence more than once.
In addition to the above, in spite of international studies on domestic violence proving beyond
doubt that both men and women are equally prone to be victims of domestic violence, which
means the possibility of females perpetrating domestic violence cannot be ruled out. Yet, there is
no provision in the Domestic Violence Act, 2005 for men to make complaints or to make a
complaint against a woman. So a man/woman facing domestic violence at the hands of another
female have no redress to his/her concerns and will continue to suffer. Such legal provisions
lacking completeness, gender equality and compliance with the Constitution should be banned
outright as they do more harm than intended.
14
Section 498A of the Indian Penal Code:-

People dont know what Section 498A of the IPC is nor do they know what to do when a 498A
case is registered against them. For starters, 498A is a criminal offence that came into existence
to combat domestic violence and protect women from dowry harassment. The history of this law
runs as follows. In the 1980s, the incidences of 'dowry deaths' were steadily rising in India. A
dowry death is the murder of a young woman; committed by the in-laws, when she was unable to
fulfil their coercive demands for money, articles or property, categorized as dowry.
Organizations across the country pressurized and urged the government to provide legislative
protection to women against domestic violence and dowry. The objective was to allow the state
to intervene rapidly and prevent the murders of young girls who were unable to meet the dowry
demands of their in-laws. As a result of the intense campaigning and lobbying, significant
amendments were made in the Indian Penal Code, the Indian Evidence Act and the Dowry
Prohibition Act, with the intention of protecting women from marital violence, abuse and dowry
demands.
Indian Penal Code - Section 498A, IPC, Says:-

HUSBAND OR RELATIVE OF HUSBAND OF A WOMAN SUBJECTING HER TO
CRUELTY:
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.
This law deals with four types of cruelty:
Any conduct that is likely to drive a woman to suicide,
Any 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,
Harassment because the woman or her relatives are either unable to yield to the demand for more
money or do not give some share of the property.
Section 498A of the Indian Penal Code, is a criminal offence. It is a cognizable, non-bail able,
and non compoundable offence.
15
Constitutional Perspectives:
The enactment in question was passed by the Parliament with recourse to Article 253 of the
Constitution. This provision confers on the Parliament the power to make laws in pursuance of
international treaties, conventions, etc. The Domestic Violence Act was passed in furtherance of
the recommendations of the United Nations Committee on the CEDAW. The Act encompasses
all the provisions of the Specific Recommendations which form a part of General
Recommendation no.19, 1992. The Statement of Objects and Reasons declares that the Act was
being passed keeping in view the fundamental rights guaranteed under Articles 14, 15 and 21.
Article 21 confers the right to life and liberty in negative terms, stating that it may not be taken
away except by procedure established by law, which is required, as a result of judicial decisions,
to be fair, just and reasonable. The right to life has been held to include the following rights
(which are reflected in the Act), among others:
The right to be free of violence:

The Supreme Court stated, any act which damages or injures or interferes with the use of any
limb or faculty of a person, either permanently or even temporarily, would be within the
inhibition of Article 21.This right is incorporated in the Act through the definition of physical
abuse, which constitutes domestic violence (and is hence punishable under the Act). Physical
abuse is said to consist of acts or conduct of such nature that they cause bodily pain, harm, or
danger to life, limb or health, or impair the health or development of the aggrieved person. Apart
from this, the Act also includes similar acts of physical violence and certain acts of physical
violence as envisaged in the Indian Penal Code within the definition of domestic violence. By
adoption of such an expansive definition, the Act protects the right of women against violence.
The right to dignity:

The Supreme Court emphasized the fact that the right to life included in its ambit the right to live
with human dignity, basing its opinion on a host of cases that had been decided in favor of this
proposition. The right to dignity would include the right against being subjected to humiliating
sexual acts. It would also include the right against being insulted. These two facets of the right to
life find mention under the definitions of sexual abuse and emotional abuse, respectively.
16
The right to shelter:

It is held that the right to life would include right to shelter, distinguish the matter at hand. Under
S.6, it is a duty of the Protection Officer to provide the aggrieved party accommodation where
the party has no place of accommodation, on request by such party or otherwise. Under S.17, the
partys right to continue staying in the shared household is protected. These provisions thereby
enable women to use the various protections given to them without any fear of being left
homeless.
Article 14 contains the equal protection clause. It affirms equality before the law and the equal
protection of the laws. Article 14 prohibits class legislation, but permits classification for
legislative purposes.
Misuse of Indian Penal Code section 498A":

Are you aware of a section 498A of the Indian Penal code? This section has been a common
cause of misery to many fellow Indians suffering alone. This section enables a WIFE to get her
husband or aged in laws arrested WITHOUT inquiry!! This law which was meant to protect
women from harassment is NOW BEING MISUSED to arrest, harass and extract money
from aged in laws and innocent Indian men. Perhaps India is the only country hosting such
gender biased and un-fair law. We need to find a way to resolve this prominent issue facing our
beloved country - India. In recent times Indian society had gone through tremendous change.
Due to high financial and technological growth, western cultural influences and attitudes are
being adopted in India. Greed coupled with vengeance has lead to misuse of laws by some
daughter-in-laws. We would like to reach Indians across the world that care for an ethical society
and proper laws.
Where The Domestic Violence Act Fails:

The act would pay settler role in protection of women rights guaranteed under Article 14 and 15.
In the very first instance, a recognition of domestic violence as something unacceptable, where it
has become yet another social practice, is necessary and indeed, commendable in a patriarchal
society. Having recognized the rights of women and the violation of these rights, the next step
17
taken is providing innovative and efficacious remedies to enforce the same. The
conceptualization of the Act thus far is admirable. Though there are interpretations to the
contrary, the act does not extend its protection to male child.
Demand for Stringent Laws:

As a result of determined campaigning and lobbying by womens organizations, significant
amendments were made to the Indian Penal Code, the Indian Evidence Act and the Dowry
Prohibition Act, with the intention of protecting wives from marital violence, abuse and
extortionist dowry demands. The most notable ones are sections 304B, 406 and 498A of the
Indian Penal Code, and Section 113 A of the Indian Evidence Act.
However, the actual implementation of these laws has left a bitter trail of disappointment, anger
and resentment in its wake, among the affected families.
On the one hand, many victims of domestic violence, as well as many womens organizations
feel that despite the existence of supposedly stringent laws, that enshrine the dual objective of
helping the woman gain control and punishing abusive husbands and in laws but in reality most
victims fail to receive necessary relief. This is due to the unsympathetic attitudes of the police,
magnified by their propensity to protect the wrongdoers, once they are adequately bribed.
Tortuous liability for Domestic Violence?

Copious endeavors been made to define a tort or tortuous liability, with various lacunas
coming up with each definition. At a very general level we may say that tort is concerned wit h
the allocation of responsibility for losses, which are bound to crop up in our society. It is very
obvious that in a society where numerous people live together, conflicts are bound to come up.
Such conflicts from time to time cause or threaten damage to others. This damage may take
many forms- injury to the person, damage to physical property, damage to financial interests, and
injury to reputation and so on- and whenever a person suffers such damage one is prone to look
to the law for redress.
Winfields definition of tort is as follows:
18
Tortuous liability arises from the breach of a duty primarily fixed by law; this duty is towards
persons generally and its breach is redress able by an action for unliquidated damages. 17
Though this definition does not fill all the lacunas in the definitions of tortuous liability but it is
the most comprehensive definition till date which has the merit of being concise and at the same
time contains elements which deserve continuing emphasis.
Most personal injury cases fall under tort law. Tort law covers a wide range of personal injury
cases including, but not limited to, cases involving car or motorcycle accidents, boating
accidents, medical negligence, and product liability.
There are three general categories of torts: intentional, negligent, and strict liability .
Intentional tort - involves an action that was carried out voluntarily and with fore-knowledge
of the wrongful or harmful consequences. Intentional torts fall into a number of subcategories
including torts against a person, property torts, dignitary torts, and economic torts. Examples of
intentional torts include battery, assault, fraud, and defamation of character.
Negligence tort - one in which the harmful action was unintentional but was brought about by
another party's unreasonably unsafe actions or a failure to act. Professional malpractice (e.g.
medical malpractice) constitutes a kind of negligence tort. Vehicle accidents often give rise to
negligence torts.
Strict liability tort, (or absolute liability), is a wrong by which the malefactor bears
absolute legal responsibility regardless of proof of negligence. For example, strict liability torts
may arise out of incidents involving toxic substances/chemicals or explosives. In pharmaceutical
litigation, a drug company may be held strictly liable for injuries caused by their products
regardless of their precautionary measures. 18
Marital Tort or Domestic tort is a wrongful act that creates the grounds for liability against a
defendant, who is called the tortfeasor. Some states allow spouses to bring torts in conjunction
with divorce actions, and many divorced or divorcing spouses now bring tort claims against each
other for misconduct that occurred during the marriage.
17
W V H Rogers, Winfield & Jolowicz Tort, seventeenth edition, Sweet & Maxwell Publication.
18
What Is Tort Law, http://www.1personalinjurylawyers.com/injury_center/tort-law.html, (accessed on: 11th
march, 2015 hrs)
19
A marital or domestic tort is a tort between former spouses. Most jurisdictions have now
repealed the doctrine of spousal immunity, permitting spouses (usually women) to bring marital
torts (usually personal injury actions) in connection with domestic violence. Marital torts,
moreover, can be lodged in connection with intentional or negligent acts, including the
transmission of sexual diseases, psychological distress and emotional injury, slander and libel as
well as dissipation of community property.
In a marital tort, as in all torts, there must be a violation of some duty owed to the plaintiff, and
generally that duty must arise by operation of law, not merely an agreement between the parties.
Torts are civil actions arising from the conduct, deliberate or careless, of one individual in
dealings causing harm or damage to another, and they also arise as a result of intent or torts in
conjunction with divorce actions negligence.
Intentional torts, which may result in civil and criminal liability, includes such actions as assault,
battery, false imprisonment, libel, slander, intentional infliction of emotional distress, invasion of
privacy, wrongful death, interference with business. Negligent conduct results from a deviation
from the standard of care a reasonable person is expected to exercise.
In marriage and family law, alienation of affection and interference with family relations (in acts
associated with the parental alienation syndrome (PAS)) may be grounds for an intentional tort.
A no-fault and uncontested divorce does not include marital torts.
Conclusion:
Domestic violence is one of the severest forms of violence against women. It cannot be
controlled only by the help of laws. As Most of the cases of abuse go unnoticed or unreported.
Society and traditions, in some cases, sanction abuse by creating conditions for the victims to
accept violence as a norm. Countries where domestic violence is most prevalent either lack
proper legal frameworks to proscribe abuse or mechanisms to implement laws against abuse.
Male population is generally apathetic to the consequences of this abuse even when many among
them would not like to indulge in such a practice. There is no proper education of sexual
relations as well as of responsibilities of adults who decide to live in a permanent relationship.
20
Any such education would inevitably include the education of the rights of women and children
as individuals.
Suggestions:
The following measures are suggested to solve the inter-related issues of domestic violence.
There should be mass awareness targeting male members of society. In my country, media has
played a great role in deepening an aversion for violence particularly domestic abuse against
women. In addition, religious scholars may also play a great role in strengthening the
understanding against abuse.
Human Rights education must be made a compulsory part of curriculum through secondary
school.
Good legal framework, sanctioning penalties and providing protection, need to be evolved where
there is none. The implementation of such framework will enhance the number of reported cases
and highlight the gravity of the issue.
There should be women empowerment including political, economic and social empowerment of
women, the most important point is to empower young girls to reject violence psychologically.
This can be done through education and training of girls and boys, not merely in formal
institutions, but also through domestic training by their mothers, aunts, elder sisters and other
older members of family seeking to inculcate the respect of women as a fundamental family
value.
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25

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Domestic Violence in India: Will Law Alone Change the Situation?

Domestic Violence in India: Will Law Alone Change the Situation?

Meaning of domestic violence

Definition according to domestic violence act

Electronic copy available at: http://ssrn.com/abstract=1467890

Different types of domestic violence

Electronic copy available at: http://ssrn.com/abstract=1467890

Mental or Psychological violence

Economical or financial abuse

Sexual Violence or Sexual Abuse

think verbal abuse is somewhat is responsible to create emotional or psychological abuse,

Perpetrators of domestic violence:

Why do Perpetrator commit domestic violence?

Having different public and private behavior:

Claiming loss of control or anger problems:

Minimizing and denying the abuse:

Perpetrator and parenting

Neglect, irresponsible and lack of involvement

Undermining the victim

How does society perpetuate domestic violence?

COMMON MYTHS ABOUT VICTIMS OF DOMESTIC VIOLENCE

Victims provoke and deserve the violence they experience

Victims of domestic violence move from one abusive relationship to another-

Victims of domestic violence are weak and always want help-

Scope Of The Protection Of Women From Domestic Violence Act 2005:-

Special Features Of This Act:-

Poor Law Promotes Poor Domestic Violence:-

Section 498A of the Indian Penal Code:-

Indian Penal Code - Section 498A, IPC, Says:-

The right to be free of violence:

The right to dignity:

The right to shelter:

Misuse of Indian Penal Code section 498A":

Where The Domestic Violence Act Fails:

Demand for Stringent Laws:

Tortuous liability for Domestic Violence?

DALY, MARTIN, and WILSON, MARGO. Homicide. Aldine de Gruyter, 1988.

GONDOLF, EDWARD W. "Who Are Those Guys? Toward a Behavioral Typology of

GREENFELD, LAWRENCE, et al. "Violence By Intimates: Analysis of Data on Crimes By Current or

HOLZWORTH-MUNROE, AMY, and STUART, GREGORY L. "Typology of Male Batterers: Three

ROSENFELD, BARRY D. "Court Ordered Treatment of Spouse Abuse." Clinical Psychology

Siddiqui Imran, Domestic violence:, http://www.conversationsforabetterworld.com visited on 13th

April 2010 at 6.52 IST

WEST, ANGELA. "Prosecutorial Activism: Confronting Heterosexism in a Lesbian Battering

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