HISTORY OF DOMESTIC VIOLENCE LAWS IN INDIA

INTRODUCTION

In India, domestic violence is not a new occurrence. Women have been subjected to domestic violence, assault, and rape for hundreds of years. Patriarchal problems face our women on a daily basis in a variety of ways. One of these is domestic violence. The word “home” that should make anyone feel protected is not even offered to Indian women. Rape, dowry torture, imprisonment, kidnapping, abduction, honour-killing, physical assault, acid attack, sexual harassment, or female infanticide are all examples of violence against women that have escalated dramatically in recent years. Pernicious practises such as child marriage, prostitution, forced marriages, wife-beating, passing filthy comments, blackmailing, sex-determination, sexual abuse of the girl child, and medical negligence are widespread in both rural and urban areas. Domestic, physical, emotional, and mental violence are all common occurrences for women in India. Women in India do not feel safe anywhere.

DEFINITION

 In India, domestic violence comes under the purview of Protection of Women from Domestic Violence Act, 2005 and it is defined under Section 3[1], which states that any act, commission, omission or conduct of a person harm or injures or endangers the health or safety of an individual whether mentally or physically, it amounts to domestic violence.

HISTORY: THE FEMINIST MOVEMENT

The act didn’t come to reality easily. It took several years for the renewal of the Indian system when it came to women empowerment. The feminist movement in 1970s and campaign led by them brought up the Criminal Law (Amendment) 1983 and section 498A was added in the IPC[2]. This law made “cruelty” to a wife by a husband or his relatives a cognisable, non-bailable offence punishable by up to three years in jail and a fine. Cruelty here included mentally and physically aspects as well. In 1986, another provision was added, namely section 304B, which criminalized dowry death[3]. These both laws were a win in itself but soon it was seen that these shifted focus from violence faced by woman on a daily basis for reasons different from dowry. On the other hand, only married woman could seek relief from this therefore a large part of society such as unmarried woman, old woman, widows and children had no provisions to safeguard themselves against these problems.  It was difficult to integrate concerns like sexual violence, economic violence, or even threats of violence inside the definition’s reach because it was framed in such a way.

THE LAWYERS COLLECTIVE BILL

In the later years, National Commission for Women (NCW) asked for Lawyers Collective, an non-governmental organization to draft the Domestic Violence bill. Before this bill, domestic violence exists was not even acknowledged by the constitution. The bill gave definitions to words such as domestic violence, domestic relationship, shared household, right to residence and protection officers.  There were talks of making the law gender neutral. However, it was discarded on the basis of gender inequality that exists in India. In our current scenario, women need empowerment as they are the ones who are oppressed. Since the violence was gender based, then the law had to be gender based as well. The purpose of the act might be defeated in case a man decides to put a false case on the aggrieved woman.  The bill was circulated for years between different woman organizations and several lawyers to find loopholes and suggest amendments for the betterment of the bill.

PROTECTION FROM DOMESTIC VIOLENCE BILL, 2001

A separate bill entitled, “Protection from Domestic Violence Bill, 2001” was presented in the Lok Sabha in 2001 by the government which faced a huge outcry due to several reasons. On one hand it acknowledged that domestic violence was a grave issue that women of the country were facing on the other hand Section 4(2) of the bill had provisions such as self defence which defeated the purpose of the act itself.[4] The bill also needed the violence to be “habitual” which would have made getting relief even tougher. Women who were not lawfully married were exempt from the law. Another major shortcoming was the lack of right to reside for the woman of the household therefore no declaration of rights of the aggrieved person. It also did not provide any immediate relief to the woman and had no proper time frame to grant relief to the victim. Another enraging section of the bill included mandatory counselling for the couple which was blatantly insulting to the victim because it screamed the notion that family mattered more than the victim’s mental health. While counselling can help in certain situations, making it mandatory defeated the purpose of helping the victim. The bill received a lot of backlash and therefore was sent to the Parliamentary Standing Committee on Human Resource Development for review. The committee invited suggestions from different women organizations and accepted most of the changes required. It accepted to remove the self defence clause when it was submitted by the LC. The committee asked that the bill contain stronger enforcement mechanisms and that the State address the issue of violence against women through other means beyond the law, in addition to approving the primary demands of women’s organisations. However, all these efforts weren’t fruitful immediately as the Lok Sabha dissolved in 2004 and the bill lapsed with it.

CURRENT SCENARIO

In 2004 of the same year, the bill was again presented to the human resources development minister and then after a plethora of suggestions from different groups, the bill was finally introduced in Lok Sabha in 2005. The proposed Protection of Women from Domestic Violence Bill was approved by the cabinet in June 2005, and the bill was introduced in Parliament in July. When the bill was being discussed in Parliament, members of the lawyers collective, as well as a number of other women’s organisations, were present. Domestic abuse was divided into four categories namely physical, sexual, verbal and emotional, and economic. It had several progressive sections and also had a provision for protection officers. Monitoring the application of any law, on the other hand, is a critical step in guaranteeing its success.

After this, every year a Monitoring and Evaluation Report gets published in order to keep track of the implementation of the Act. Currently, the act is not getting implemented in a uniform manner throughout the country.  In the first report, it was observed that states like Rajasthan and Punjab had not appointed even one protection officers in the state. While privileged women could hire a high-priced lawyer and get justice, the lower strata of the society had no choice but to depend on the protection officers.[5]Most of these women are not even aware of their rights yet the states failed their duty of bringing justice to the needy. The act currently lacks inclusion of male members of the society and doesn’t keep in mind the cohabitation of LGBTQ+ couples. As a result, these must be incorporated in the act in order to completely eliminate domestic violence as an unavoidable evil in Indian culture.

Author’s Name: Aditi Singh (Dr. Ram Manohar Lohiya National Law University, Lucknow)

References:

[1] Protection of Women from Domestic Violence Act 2005, s 3.

[2] Indian Penal Code 1860, s 498A.

[3] Indian Penal Code 1860, s 304B.

[4] Protection from Domestic Violence Bill 2001, s 4(2).

[5] Aarefa Johri, ‘”Twelve years since the Domestic Violence Act, how well do protection officers help women in need?”’ (Scroll, 28 March 2017) <https://scroll.in/article/830882/twelve-years-since-the-domestic-violence-act-how-well-do-protection-officers-help-women-in-need> accessed 3 June 2022.