Domestic violence Act

1
Domestic violence Act
Presentation at Midterm CME IPS on Psychiatry and
the Law- Indian Scenario at Chennai -16th-17th
Aug 2008

• Dr. SHUBHANGI R. PARKAR, DPM. M.D. MSc. Ph.D.
• Professor Head, Department of Psychiatry, Seth
  G. S. Medical College
• K.E.M. Hospital, Parel, Mumbai 400 012.
• Dr RUPALI SHIVALKAR DPM MD, Asst Prof,
  IBHAS, Delhi

2
Introduction

• Domestic violence is related to serious
  morbidity and is a major public health problem
  in our society.( APA 1994)
• Only a small percentage of victims of domestic
  violence are identified in medical practice.
  (Hamberger LK, Saunders DG, Hovey M 1992).
• In the United States, 8 -12 million women are
  victims of domestic violence from current or
  former partners.

3
Introduction

• Women are more often the victims.
• Domestic violence, also known as partner-abuse,
  spouse- abuse, or battering
• Family violence occurs among persons within
  family or other intimate relationships,
  Includes child abuse and elder abuse
• Family violence the abuse of power or the
  domination and victimization of a physically
  weak person by a physically more powerful
  person.

4
Facts about Domestic violence

• One in every two women in South Asia faces
  violence within her
• home
• 21-28 women are abused by a current or former
  partner some time during their lives.
• 47 of husbands who beat their wives do so
  three or more times a year.
• 14-25 of ever-married women report being raped
  by their current
• or former husbands,

5
Facts about Domestic violence

• 19 to 30 of injured women seen in emergency
  departments are victims of domestic violence
• 25 of women who attempt suicide may have
  suffered domestic violence.
• 25 of women utilizing a psychiatric emergency
  service experience domestic violence.
• 45 to 59 of mothers of abused children are
  themselves the
• victims of spouse abuse

6
Situation in India

• In Indian context the perpetrators include
  husband as well as the in-laws and can be
  associated with larger social issues like dowry.
  
• Around two-third of married women in India were
  victims of domestic violence with one incident
  of violence translating into women losing seven
  working days in the country as per the United
  Nations report
• As many as 70 per cent of married women in India
  between the age of 15 and 49, are victims of
  beating, rape or coerced sex.

7
Impact of DV

• Physical health
• Multiple sites of injury
• Domestic violence during pregnancy
• chronic illnesses such as diabetes, asthma may be
  poorly controlled

• Psychological impact on family
• The adverse effects of violence on family remain
  latent
• children who grow up witnessing violence and may
  themselves become victims or abusers.

8
Mental Health Problems

• Lifetime experiences of abuse and violence are
  common among women seen in mental health
  settings.
• 30-90 of women in domestic violence
  programs have identifiable mental health
  problems
• It is also noted that the stress of domestic
  violence may aggravate the already existing or
  co morbid psychiatric disorders.
• Battered women develop substance abuse problems
  (7-36) as a way of coping with violence

9
Mental Health Problems

• Women suffering domestic violence are five times
  more likely to attempt suicide.
• Frequently exhibit marked anxiety,
  confusion, multiple somatic complaints and
  frequently visit the emergency.
• Depression is common(60).
• Subtle effects of such a violent
  environment can damage a child emotionally as
  well as physically.

10
Laws in India

• During the 1980s, far-reaching changes were
  introduced in our criminal laws to deal with DV
• In 1983, DV as a specific criminal offence by
  the introduction of section 498-a into the
  Indian penal code.
• Section 498-a of the Indian penal code covers
  dowry-related harassment
• Also addresses dowry deaths in section 304-b.
• Section 306 should be invoked when a woman
  commits suicide because of dowry-related
  harassment.

11
Laws in India

• Determined campaigning and lobbying by womens
  organisations, 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
• The most notable ones are sections 304b, 406 and
  498a of the Indian penal code, and section 113 a
  of the Indian evidence act.
• The Indian penal code was amended twice during
  the 1980s first in 1983 and again in 1986 to
  define special categories of crimes dealing with
  marital violence and abuse.

12
Need for new law

• DV is more than crime it is a serious human
  rights violation.
• Change from something centred on dowry to a more
  comprehensive mental, psychological, sexual and
  economic violation
• A civil remedy was needed more than a criminal
  remedy.
• Mediation in marriage usually aimed to cool
  conflicts, reach agreements and maintain the
  institution of marriage.
• It insisted on maintaining family relationships
  inspite of violence and sometimes recommended
  drastic compromises to save a marriage.

13
Domestic violence Bill 2002

• Domestic violence Bill with first draft in 2001
  and final draft in 2002 were heavily criticized
  by all stake holders
• Many shortcomings and criticism
• Definition deficits poor operationalization
• Domestic Relationship too narrow definition
• Gross neglect of mental health aspects
• Jurisdiction more flexible approach needed

14
Legal definition of DV

• Domestic Violence Act 2005 defines DV
• Any act, omission or commission or conduct of the
  respondent shall constitute domestic violence in
  case it -

• 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

• 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

15
Legal definition of DV

• Has the effect of threatening the aggrieved
  person or any person related to her by any
  conduct mentioned in clause (a) or clause (b)

• Otherwise injures or causes harm, whether
  physical or mental, to the aggrieved person.

16
Legal guidelines

• Confusion about
• who can be charged with domestic violence,
• how the law defines domestic violence.
• "who" of domestic violence is complicated by
• The assumption that domestic violence implies
  physical violence between a husband and wife.
• As the term "family violence" has begun to
  replace the term domestic violence

17
Types of domestic violence

• "physical abuse"
• "sexual abuse
• "verbal and emotional abuse
• "economic abuse
• Social abuse

18
DV Act 2005

• The new act contains five chapters and 37
  sections
• Wide definition and covers every eventuality
  that the term 'domestic violence' has been made
  wide enough to encompass every possibility as it
  covers all forms of abuse that can harm, cause
  injury to, endanger the health, safety, life,
  limb or well-being, either mental or physical of
  the aggrieved person. (Ch.II, S.3)

19
DV Act 2005

• Wide definition of an 'aggrieved' person
• Covers not just the wife but any woman who is the
  sexual partner of the male irrespective of
  whether she is his legal wife or not. The
  daughter, mother, sister, child (male or female).
• in fact, any woman residing in the household who
  is related in some way to the respondent, is also
  covered by the Act.

20
DV Act 2005

• The information regarding an act or acts of
  domestic violence does not necessarily have to be
  lodged by the aggrieved party but by "any person
  who has reason to believe that" such an act has
  been or is being committed.
• Which means that neighbors, social workers,
  relatives etc. can all take initiative on behalf
  of the victim (Ch.III, S4).

21
DV Act 2005

• The magistrate has the powers to permit the
  aggrieved woman to stay in her place of abode and
  cannot be evicted by the husband in retaliation
• She not only reside in the same house but that a
  part of the house can even be allotted to her for
  her personal use (ch.Iv, s.17) even if she has no
  legal claim or share in the property

22
DV Act 2005

• S.18 of the same chapter allows the magistrate to
  protect the woman from acts of violence or even
  "acts that are likely to take place" in the
  future and can prohibit the respondent from
  dispossessing the aggrieved person or in any
  other manner disturbing her possessions
• Prohibit even Entering the aggrieved person's
  place of work or, if the aggrieved person is a
  child, the school.

23
DV Act 2005

• The respondent can also be restrained from
  attempting to communicate in any form,
  whatsoever, with the aggrieved person, including
  personal, oral, written, electronic or telephonic
  contact" (S18d).
• The respondent can even be prohibited from
  entering the room/area/house that is allotted to
  her by the court.

24
DV Act 2005

• The Act allows magistrates to impose monetary
  relief and monthly payments of maintenance.
  (Ch.IV, S.20).
• S.22 allows the magistrate to make the respondent
  pay compensation and damages for injuries
  including mental torture and emotional distress
  caused by acts of domestic violence.

25
DV Act 2005

• Ch. V . S.31 gives a penalty up to one year
  imprisonment and/or a fine up to Rs. 20,000/- for
  and offence. The offence is also considered
  cognizable and non-bailable (Ch.V, S.32(i)

• The Act also ensures speedy justice as the court
  has to start proceedings and have the first
  hearing within 3 days of the complaint being
  filed in court and every case must be disposed of
  within a period of sixty days of the first
  hearing (Ch.IV, S.12 (a) (4) and (5)).

26
Strengths of the act

• A new dimension to the word abuse . includes
  actual abuse or threat of abuse (harassment by
  way of dowry demands)
• All crimes in the Domestic Violence Act are
  non-bail able
• The Act has also defined Physical Violence very
  comprehensively, as Any kind of bodily harm or
  injury, A threat of bodily harm, Beating,
  slapping and hitting.

27
Strengths of the act

• For the first time, the law has expanded the
  definition to include sexual, verbal and economic
  violence.
• The new law is also tough on men who subject
  women to name calling or verbal abuse.
• Another significant step has been to recognize
  Economic Violence. Under the Act, Economic
  Violence is Not providing money, food, clothes,
  medicines, Causing hindrance to employment
  opportunities Forcing a woman to vacate her
  house.
• A very forward-thinking and important part of
  this definition

28
Strengths of the act

• Under the Act the law provides for the setting up
  and function of Protection Officers. The State
  Government will appoint protection officers to
  help the affected women. in every district across
  the country, helping the victims file cases
  before the magistrates.

• An important addition to the law ensures that an
  aggrieved wife, who takes recourse to the law,
  cannot be harassed for doing so.
• In short, a husband cannot take away her
  jewellery or money, or throw her out of the house
  while they are having a dispute.

29
Strengths of the act

• A woman who is the victim of domestic violence
  will have the right to the services of the
  police, shelter homes and medical establishments.

• She also has the right to simultaneously file her
  own complaint under Section 498A of the Indian
  Penal Code.

• Sections 18-23 of the Act provide a large number
  of avenues for an abused woman to get relief. She
  can get, through the courts, Protection Orders,
  Residence Orders, Monetary Relief, Custody Order
  for her children, Compensation Order and Interim/
  Ex parte Orders

30
Major changes required

• S.16 of Chapter IV which allows the magistrate to
  hold proceedings in camera "if either party to
  the proceedings so desires".
• only intimidated the aggrieved in favor of the
  respondent
• when the aggrieved is the only woman in court
• Solution but only if the aggrieved party so
  desires

• Misuse of the act, like all such acts in India ,
  cannot be ruled out. In fact, with a system as
  corrupt as ours, money, clout and muscle power
  will always call the shots
• This Act should also put an end to many of the
  misuses of the Anti Dowry Act.(4) .

31
Right intervention?

• Implementation skeptical
• For instance, the Rape Act brings only 5 of all
  rapes committed to court and of those only 5 get
  convictions
• The present system which is the cause for women's
  oppression, these Acts are no solution to the
  basic problems that women face and are, at best,
  mere stop-gap measures
• Women empowerment in true sense can only lead to
  use of this law in right sense

32
Limitations

• The law says -any definition of domestic violence
  must detail the fact that it is a human rights
  violation (may still be decided by Individual
  Judges)
• law details the different forms of violence faced
  by women this may be theoretical exercise and
  in practice may differ
• No mandatory sensitization of judges and law
  enforcement officials provided for
• Mental health component still not paid adequate
  dues.

33
Mental health component?

• Mental health component still not paid adequate
  dues.
• Domestic violence is too intimate and complex
  experience for every woman.
• Violence is a dynamic concept and has many inter
  related factors involved
• Without adequate attention to these intricacies
  the problem is not going to be solved.
• The need has to be assessed in each individual
  case,

34
Thank you