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Domestic Violence PDF Print Email

What is DV?
Ans. Violence of any kind occurring within the family and for matters connected therewith or incidental thereto. BE it enacted by Parliament in the Fifty-sixth Year of the Republic of India.

Why it is dangerous
Ans. It is dangerous because it is retrospective in nature. i.e. even if any alleged domestic violence has occurred even before the implementation of this act even then this act can be used. It gives sweeping Ex-Parte relief to women even without ascertaining whether any kind of domestic violence has taken place. The wordings of the DV act are very "happily worded" (observed by Honorable Supreme Court), So it is bound to be misused by ladies to take revenge.

I have 498a on me, Can my wife file DV?

Yes, she can file.
Will I be arrested because of DV/Will I be jailed under DV
You will be arrested only if you do not comply the magistrates order.

Is DV a civil or criminal act?
As observed by the Chattisgarh High Court, some of the sections of this act are civil in nature and some of the sections of this act are criminal in nature.

Can court pass Ex-parte interim order in the first hearing without my presence?
Yes

What relief/orders wife can get under DV ACT?
Wife also have the right to ask the protection officer to assist you in reporting the matter yourself directly to the concerned court or filing any application yourself directly in the
concerned court and not through the Protection Officer.
Wife can seek the following reliefs from the concerned court - a) An order enjoining your abuser from threatening to commit or committing further acts of domestic violence or violence to any person in whom you may be interested;
b) An order prohibiting your abuser from harassing, annoying, telephoning, contacting or otherwise communicating with you, directly or indirectly.
c) An order removing your abuser from residence;
d) An order directing your abuser to stay away from your residence, school, place of employment, or any other specified place frequented by you and another family or household member;
e) An order prohibiting you abuser from using or possessing any firearm or any other weapon or dangerous substance as specified by the court.
f) An order granting you possession of your personal effects and other necessary articles in the shared household and an order to put you again in the possession of the shared household;
g) An order granting you custody of your child or children;
h) An order denying your abuser visitation;
i) An order specifying arrangements for visitation, including requiring supervise visitation;
j) An order for interim monetary relief, including but not limited to payment of rent for the premises of the shared household, maintenance for you and your children, medical expenses and compensation for any other mental or physical injury caused to you by the abuser;
The commitment of the parties to the shared household.
The existence of a significant period of cohabitation.
The existence of financial and other dependency between the parties including significant mutual financial arrangements vis-à-vis the household.
The existence of children of the relationship
The role of the partners in maintaining the household and in the care of the children. Indian cases on relationships on relationships in the nature or marriage -
Badri Prasad AIR 1978 SC 1557 The Supreme Court held that a strong presumption arises in the favor of wedlock where the partners have lived together for a long spell as husband and wife.
Sumitra Devi (1985) 1 SCC 637. The Supreme Court held that relevant facts such as how long have the parties been living together, does society recognize them as husband and wife, etc need to be looked into to determine whether the relationship is in the nature of marriage.
Accordingly, the following categories of women are intended to be covered under 'relationship in the nature of marriage:
Women, whose marriages are void or voidable under the law, as apart from the legal invalidity of the marriage, the relationship satisfies all other criterion.
Women who are living in a shared household in a conjugal relationship without contracting marriage.
Common law marriages- when a couple has been cohabiting for a number of years and have held themselves out to the world as being husband and wife.

Does the use of this term bring 'relationships in the nature of marriage' at par with marriages?
Ans:The law simply provides protection from violence to all women whether they are sisters, mothers, wives or partners living together in a shared household. To the extent of providing protection, the law does not differentiate between married and unmarried women. The law, however, does not state anywhere that an invalid marriage is valid. It provides protection from violence.

Are minors entitled to reliefs under this law?
Yes, as the term 'child' is defined under the law, minors will also be within the ambit of the definition of 'domestic relationship'. Section 2 (b) of the PWDVA defines child as "any person below the age of eighteen years and includes any adopted, step or foster child".

Can a minor male apply for reliefs under this law?
The mother can make an application on behalf of her minor child (whether male or female). In cases where the mother makes an application to the court for herself, the children can also be added as co-applicants for a relief under the PWDVA. The Court can also, whenever appropriate, appoint a guardian or next of friend to represent the child.

What is the meaning of the expression 'relationships in the nature of marriage' used in the definition of 'domestic relationship' (Section 2(f))?
'Relationship in the nature of marriage' refers to those relationships where there is no marriage between the parties, in the sense of solemnization of a marriage under any law. Yet the parties represent to the world that they are a couple and there is stability and continuity in the relationship. Such a relationship is also known as a 'common law marriage'.
Proof of such a relationship would be: the use of a common name, common ration card, same address, etc.
It is useful to look at the South African case of Ethel Robinson Women's Legal Centre Trust versus Richard Gordon Volkas etc, (Case no 7178/03, in the High Court of South Africa, Cape Province Division), in which the following factors were considered in arriving at a conclusion on whether or not a relationship can be deemed to be a relationship in the nature of marriage between the parties :

What specific provisions of law deal with domestic violence?
In 1983, domestic violence was recognized as a specific criminal offence by the introduction of section 498-A into the Indian Penal Code. This section deals with cruelty by a husband or his family towards a married woman. Four types of cruelty are dealt with by this law:
• Conduct that is likely to drive a woman to suicide,
• 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, or
• Harassment because the woman or her relatives is unable to yield to demands for more money or does not give some property.
The punishment is imprisonment for upto three years and a fine. The complaint against cruelty need not be lodged by the person herself. Any relative may also make the complaint on her behalf.

What are the forms of "cruelty" recognized by the Courts?
• Persistent denial of food,
• Insisting on perverse sexual conduct,
• Constantly locking a woman out of the house,
• Denying the woman access to children, thereby causing mental torture,
• Physical violence,
• Taunting, demoralizing and putting down the woman with the intention of causing mental torture,
• Confining the woman at home and not allowing her normal social intercourse,
• Abusing children in their mother's presence with the intention of causing her mental torture,
• Denying the paternity of the children with the intention of inflicing mental pain upon the mother, and
• Threatening divorce unless dowry is given.

What is a "matrimonial home"? What rights do women have in their matrimonial home?
The matrimonial home is the household a woman shares with her husband; whether it is rented, officially provided, or owned by the husband or his relatives. A woman has the right to remain in the matrimonial home along with her husband as long as she is married, though there is no definite law regarding this right. If a woman is being pressurized to leave the matrimonial home, she can ask the Court for an injunction or "restraining order" protecting her from being thrown out. This can usually be obtained quite easily. It is generally advisable not to leave the matrimonial home; it is easier to get a court order preventing a woman being thrown out than to get an order enforcing her right to return to it once she has left or been thrown out.

What is an 'Injunction' and how does it apply to domestic violence cases?
An injunction is a court order directing a person to do or not to do something. A woman has a lot of flexibility regarding what she can request the Court to order. For instance, if she is being stalked by somebody (including her husband), she can obtain injunctions against the person coming near her home or place of work, or even telephoning her.

What can be done in the case of dowry-related harassment or dowry death?
Section 498-A of the Indian Penal Code covers dowry-related harassment. As with other provisions of criminal law, a woman can use the threat of going to court to deter this kind of harassment. The Indian Penal Code also addresses dowry deaths in section 304-B. If a woman dies of "unnatural causes" within seven years of marriage and has been harassed for dowry before her death, the Courts will assume that it is a case of dowry death. The husband or inlaws will then have to prove that their harassment was not the cause of her death. A dowry death is punishable by imprisonment of at least seven years. When filing an FIR (First Hand Report), in a case where a woman is suspected to have been murdered after a history of torture due to dowry demands, the complaint should be filed under section 304-B rather than under section 306, which deal with abetment to suicide. Section 306 should be invoked when a woman commits suicide because of dowry-related harassment.

Can you refuse to have sex with your husband? Is there a law on marital rape?
Since India does not have a law on marital rape, even if a woman's husband has sexual intercourse with her without her consent, he cannot be prosecuted for rape. However,
excessive and unreasonable demands for sex, or demands for unnatural sex have been considered forms of cruelty and may entitle a woman to a divorce.
If a woman is judicially separated, her husband cannot have sexual intercourse with her without her consent. If he does, he can be prosecuted under section 376-A of the IPC. Note that consent under pressure (e.g. because of threats to injure or to stop paying maintenance) is not considered valid.

What can a woman do to prevent domestic violence?
One option is to get the woman's husband to execute a "bond to keep peace", or a "bond of good behavior" through the Executive, Magistrate who can order the husband to put a stop to domestic violence. The husband can also be asked to deposit securities (i.e. money or property) that will be forfeited if he continues to act violently?
Distinction between Civil and Criminal Law The distinction between civil and criminal law is a basic part of the Indian legal system. Civil laws deal with the rights and obligations of people and what is needed to protect them, while criminal law deals with offences and their punishment. In a criminal offence, the State takes upon itself the responsibility to investigate and collect evidence (through the police), to fight the case in court (through a public prosecutor) and enforce the punishment. Robbery, murder and kidnapping are examples of criminal offences. Criminal offences are dealt with by the Indian Penal Code (IPC).
The procedure by which a criminal trial is conducted is quite different from the processes involved in a civil trial. An important difference is that the "standard of proof" required in criminal cases is much higher than in civil cases. Since criminal law is centrally linked with issues of punishment, allegations and facts must be proved "beyond reasonable doubt", so that innocent people are not punished. In civil cases, the courts scrutinize the "balance of probabilities" before deciding in whose favour to make a judgement. However, there are some situations in which both civil and criminal law apply. Inflicting physical violence on a wife or daughter-in-law as well as subjecting her to cruelty - physical, mental or emotional in a marriage is not only a civil offence and provides ground for divorce (a"matrimonial offence"), but is also a criminal offence under the Indian Penal Code, for which a person can be imprisoned. The laws dealing with marital abuse have been made very stringent through amendments in the Indian Penal Code and the Evidence Act.

 

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