Domestic Violence : Problems and

Perspectives
C.S. Ambili*

Women have been the victims of violence and exploitation by the male
dominated society all over the world. In India, women have been socially,
economically, physically, psychologically and sexually exploited from time
immemorial. Before the adoption of the Constitution of India the concept of
equality of male and female were almost unknown. Eventhough the position
of a woman has undergone remarkable change during the last century, her
condition in the home has not been changed much.

The phenomenon of domestic violence is deep rooted in our social and

personal life. Among all types of violence against women, domestic violence
is the most serious one because it happens silently. It is one of the leading
causes of injuries inflicted on the female in India. The term domestic violence
is most commonly used to describe the incidents of familial or intimate battering.
Eventhough the victim of domestic violence can either be a woman or a man,
it is considered mainly as a problem of women. This is because, as in any
other type of violence against women, the root cause is proved to be gender
inequality in most of the domestic violence cases also.

In most of the countries, police, prosecutors and judges often dismiss

domestic violence as a private matter. This attitude of the law enforcement
officials reflects the attitude of the general community that domestic violence
is not a serious crime but a private problem. In many countries, those who
commit domestic violence are prosecuted less vigorously and punished more
leniently than perpetrators of similarly violent crimes against strangers'.

* B.A.L., LL.B. (Kerala), LL.M. (Cochin); Lawyer, Thiruvananthapuram, Kerala.

1. The offence of rape when becomes 'marital rape' ceases to exist as an offence in
many countries. E.g., in India itself, rape is an offence under S. 376 I.P.C. and is
punishable with a minimum of seven years imprisonment. But marital rape is not
an offence except in cases where the wife is below 15 years.
128 Cochin University Law Review [20031

Forms of Domestic Violence

Domestic' violence usually involves the infliction of bodily injury,

accompanied by verbal threats and harassment, emotional abuse or destruction
of the property as means of coercion, control, revenge or punishment, on a
person with whom the abuser is involved in an intimate relationship. The most
accepted definition of domestic violence is the physical, mental, emotional
and sexual abuse of a woman in her intimate relationship. In the Indian context,
such violence includes the intimidating acts by both male and female members
of her marital family''-'. This act of violence curtails a woman's freedom and
right to self-determination.

The United Nations Organisation defines domestic violence as the use

of force or threats of force by a husband or boyfriend for the purpose of
coercing and intimidating a woman into submission. The violence can take
the form of pushing, hitting, choking, slapping, kicking, burning or stabbing.

This definition is an insufficient one because it speaks only about the

violence by husband or boyfriend. It is silent about other forms of violent acts
like violence by in-laws. Moreover, it creates the impression that domestic
violence includes only physical violence. This is not the correct position. In
domestic violence cases the perpetrators practice verbal abuse, sexual abuse,
psychological and emotional abuse among others to control their victims. These
acts of domestic violence are not considered criminal acts by the society at
large. It is a crime that is not even reported.

Wife battering is a form of domestic violence that can be seen in families

of every class and culture throughout the world. The word 'battering' denotes
"physical beating of a person with the intent of causing harm or injury" and
actually causing it 3 . Incidents of wife beating cut across all social barriers of
caste, class and religion and women from every section of the society, all

The term domestic indicates an idealised family unit functioning in a protected

and secluded manner approximately shielded from public.
2a. Veena Poonacha and Divya Pandey, " Responses to Domestic Violence : Government
and Non-Government Action in Karnataka and Gujarat", 35 E.P.W. 566 (2000)
'Battering' is also used to denote the act of striking a person with the intent of
causin g harm or injury but not actually causing it.
C.U.L.R. C.S. Ambili 129

income groups, educational and cultural levels and socio-economic strata,

get beaten up4. Women suffer battering in silence because, (a) they consider
marriage as sacrosanct and a sacrament; or (b) they are completely dependent
on their husbands for economic, emotional and social support, and for them
there is nowhereelse to go; or (c) they do not approve divorce due to its
social consequences; or (d) they accept their husband's promise to reform.

`Dowry' is an evil that is a curse to Indian society. Many of the domestic

violence cases reported in India have its root at the demand of dowry. In
Indian families, newly wedded young women are often to meet with bad
treatment if they fail to fulfill the more and more demands for dowry. A large
number of cases are reported about the death of young brides by burn or in
some other suspicious circumstances. When these cases come before the
court, cruel treatment in the name of non-fulfillment of dowry demands, if
proved, and the death is happened within seven years of marriage and otherwise
than under normal circumstances, then it will be called a 'dowry death'. It is
made a specific offence now under the Indian Penal Code'. Separate penal
measures are also provided for dowry death. But, if it is proved to be a
murder, then this provision will not be applied. At the same time, if it is proved
to be suicide and reason for that is harassment in the name dowry then, the in-
laws will be made liable under the provision penalising as abetment of suicide".
The dowry death provision will be applied only if murder or suicide cannot be
proved and the conditions of the section are satisfied'. It took more than a
decade of struggle at various levels to make dowry death a specific crime and
to provide direct penal action for such deaths.

Female infanticide is also a form of domestic violence that is widely

seen in India. A female child is considered to be a burden on her parents

Contrary to the popular belief, it is not only the poor who heat their wives to
vent out their frustration. The incidence of this crime is high even among the
rich.
The Indian Penal Code, 1860, S. 304-B; herein after referred as I.P.C.
Id., S. 306.
Soni Babubhai v. State of Gujarat, (1991) 4 S.C.C. 298.
130 Cochin University Law Review 120031

because of the possible expenses that is to be met with, in her future life. In
India, as already mentioned, dowry is apart of marriage ceremonies and the
demand of huge sums as dowry is definitely a frightening dream for the parents
who have two or three girl children. This fear of possible demand for dowry
results in the killing of female infants in some rural areas in India.

Any type of torture or harassment faced by a woman in her home is

called cruelty. It includes physical as well as mental abuse. Cruelty is penalised
under our Criminal Law'. Any willful conduct of husband or relatives of the
husband, which will drive any woman to commit suicide or cause grave injury
to her, whether physical or mental, will come under this provision. Any
harassment with the intention of coercing her or relatives to fulfill any unlawful
demand for any property is also cruelty'°.

Marital rape is another form of domestic violence that occurs within the
family. In such cases a man has sexual intercourse with his wife forcibly or
without her consent. A presumption was existed that the husband cannot be
guilty of rape committed by himself upon his lawful wife, because by their
mutual matrimonial consent or contract the wife has given up this right that she
cannot retreat. The rationale behind this exemption was doctrine of "unity in
marriage". A man and a woman are merged into a single legal being upon
marriage and that being is the man.

Along with all these types of domestic violence offences, one more
type is there in India that can be said to be a peculiar feature of Indian society,
viz., the Sati. It is the custom of burning alive of a widow along with the dead
body of her husband.

History and Traditions

These serious problems have its roots in historical and religious attitudes
towards women in our country. During the Vedic period woman was adored,

8. Based on the same fear, a large number of female foeticide is also seen in India.
0. Supra n.5, S. 498-A.
10. Ibid.
C.U.L.R. C.S. Ambili 131

respected and recognised. She had the identity of her own and received
same respect as was given to males. Women were highly educated and
cultured. But to the end of Vedic period, the position of woman declined.
Her role was reduced to perform only one job, namely, to bring progeny for
man. During the Smriti period the Smritikars confined the role of women in
home. According to Manu, a woman is not entitled to independence; her
father protects her in her maidenhood, her husband in her youth and her son
in her old age' For Manu, women were created by God to be mothers. So,
a maiden may be given in marriage, even though she has not attained the
proper marriageable age. As per him the wife must constantly worship her
husband as a God even if, he is a destitute of character or seeking pleasures
elsewhere or devoid of good qualities. This position of woman continued the
same until the British rule was started. The practices like Sati and child
marriage were widely prevalent at that time. Sati was performed so as to get
Moksha. The women were denied education. Widows were treated very
badly. They were not allowed to remarry. They were also not allowed to
participate in any public function. The condition of women was very pathetic
at that stage.

Early Legislative Interventions

But during the British period the condition of Indian woman was improved
a lot. At that time some legislations were enacted so as to improve the status
of women in our society. The Hindu Widow's Remarriage Act, 1856 was the
first important measure. This Act legalised the remarriage of hindu widows.
This Act was passed as a result of reformist movement among the educated
Hindus. Next important step was the abolition of Sati by Lord William Bentinck.
Another important step was the enactment of Child Marriage Restraint Act in
1929. Later, in 1937 the Hindu Women's Right to Property Act was enacted.
The Dissolution of Muslim Marriage Act, 1939 gave to a Muslim wife the
right of judicial separation from her husband that was denied to her earlier.
Thus, the British period saw the period of Renaissance.

11. Pita Rakshathi Kaumare, Bharta Rakshathi Youvane Puthro Rakshathi

Vardhakye Na Sthree Swathanthryamarhati.
132 Cochin University Law Review (20031

Eventhough some legislative reforms were made during the British

period, concept of women remained unchanged as dependent, powerless
and needing a charitable consideration. After the independence, the legislature
took a more positive attitude in this matter. The Suppression of Immoral Traffic
in Women and Children Act, 1954, the Special Marriage Act, 1954, the Hindu
Minority and Guardianship Act, 1956, the Hindu Succession Act, 1956, the
Dowry Prohibition Act, 1961 and the Commission of Sati (Prevention) Act,
1987 are some among them. All these legislations contributed to the
improvement of position of woman in India. Above all these legislative
provisions, the Constitution itself seeks to secure an equal position to Indian
women as that of men. The Constitution totally prohibits a difference in
treatment between men and women by the State' 2 . Moreover Constitution
allows certain special protection to women and all citizens are bound to
renounce practices derogatory to the dignity of women's'.

The Penal Law of India as stood originally was inadequate to protect

women against domestic violence. Now some provisions are there in the I. P.
C. also, which are helpful in the improvement of conditions of women in India.
The insertion of Sections 304-B and 498-A into the I.P.C. are aimed at the
protection of women in India l3a. Moreover our legislature is making an attempt
in the form of a proposed legislation which is pending in the Lok Sabha' to
deal properly with the offences of domestic violence.

Provisions under the International Documents

Even though the domestic violence is an offence committed by private

individuals, states are also bound by numerous international laws and norms.
Now, through these international laws, domestic violence is identified as a
violation of human rights. Many of the international documents like Convention

12 The Constitution of India, Arts. 14 and 15(1).

13. Id., Art.15(3) and Art.51 A(e).
I 3a See infra nn. 26-27 and the accompanying text.
14 The Protection from Domestic Violence Bill, 2002. See also infra nn. 70-79 and
the accompanying text.
C.U.L.R. C.S. Ambili 133

on Elimination of all Forms of Discrimination Against Women, 1979, the Beijing

platform' of action and the Declaration on the Elimination of Violence Against
Women 1994, provides protections of particular significance to women. But
most of them do not directly address the domestic violence. However, they
do articulate fundamental human rights that are commonly violated in domestic
violence cases, such as right to life, right to physical and mental integrity, the
right to equal protection of laws and the right to be free from discrimination.

The International Covenant on Civil and Political Rights prohibits sex

discrimination and binds all the state parties to make available all the rights
guaranteed in it to all the individuals within its territory without any distinction
on any grounds including the sex of the individual 16. The state parties are to
ensure equal rights of men and women to the enjoyment of all civil and political
rights set forth in the Convention'''. It also states that all persons are equal
before law and are entitled without any discrimination to the equal protection
of the law. For this purpose the law shall prohibit any discrimination and
guarantee to all persons equal and effective protection against discrimination's.

These provisions do not directly deal with domestic violence. In relation

to domestic violence, the first step was taken by the UN itself. The new legal
standards adopted by the inter-governmental institutions like UN over the
last twenty years have addressed and condemned domestic violence. The
UN decade on women, i.e., the period from 1976 to 1985, provided the
foundation for the creation of an international domestic violence movement'.

In 1979, in the middle of the United Nations decade on women, the

UN general assembly adopted the Convention on Elimination of All Forms of
Discrimination Against Women with an intention to eliminate discriminatory

The Beijing Declaration, 1995, Oct. 17.

The International Covenant on Civil and Political Rights, Art. 2(1).
Id., Art. 3.
Id., Art. 26.
19. In 1975 the UN sponsored the First World Conference on Women in Mexico
City. Delegates to this Conference recommended that the period 1976 to 1985 be
declared the UN Decade on Women.
134 Cochin University Law Review [20031

behaviour that is adverse to women. The Women's Convention addresses

inequality within the family. It guarantees to women equal rights with men in
entering into a marriage and in choosing a spouse'. Since the creation of this
Convention, the UN Committee that monitors it has recognised the serious
global impact of domestic violence. Through the Committee's
recommendations now, a number of activities are being carried out so as to
focus, attention on all forms of violence against women, including domestic
violence. In 1992, the recommendation of the Committee specifically noted
that states may also be responsible for private acts if they fail to act with due
diligence to prevent violations of rights, or to investigate and punish acts of
violence'.

Another significant step towards enhancing state responsibility for gender

based violence, the UN Declaration on the Elimination of Violence Against
Women, 1994 which is a comprehensive statement of international standards
with regard to the protection of women from violence. As per the Declaration,
the state should condemn violence against women. They are to exercise due
diligence to prevent, investigate and punish acts of violence against women'''.
The Declaration specifically included domestic violence under the definition
of 'violence' under Article 2(a)". It denounces violence against women,
including violence in the home, as a violation of the rights and fundamental
freedoms of women.

The Convention on Elimination of All Forms of Discrimination Against Women,

1979, Art. 16(1) (a) and (b).
Committee on the Elimination of Discrimination Against Women, January 29,
1992, General Recommendation 19; sees also the Convention on Elimination of
all Forms of Discrimination Against Women, 1979, Art. 10.
2?. The U.N. Declaration on Elimination of Violence Against Women, 1994, Art. 4.
2 3. Id., Art. 2 (a) which reads : "Violence against women shall be understood to
encompass, but not be limited to physical, sexual and psychological violence
occurring in the family including battering, sexual abuse of female children in the
household, dowry related violence, marital rape, female genital mutilation and
other traditional practices harmful to women, non spousal violence and violence
related to exploitation."
 C.U.L.R. C.S. Ambili 135

There is one more significant step in the same direction. The United
Nations Commission on Human Rights appointed the first Special Rapporteur
on violence against women in 1994. The Special Rapporteur's first report
set forth the international legal framework condemning domestic violence and
detailed actions that were currently being pursued by governments to reduce
the occurrence of domestic assault. The states are put under a positive duty
to prevent, investigate and punish crimes associated with violence against
women. Moreover, the states should not use tradition or custom as an excuse
for abdicating their responsibilities to prevent violence against women'.

Another significant progress was the Beijing platform of action that

identifies domestic violence as a human rights violation". The governments
are directed to enact and enforce legislation against the perpetrators of domestic
violence26.

The Specific Legislative Provisions in India

In India there is no specific legislation that governs the problem of

domestic violence, This hesitation to frame a special legislation that addresses
exclusively the offence of domestic violence is due to the myth that no law
should interfere in domestic affairs of man and wife. There is one more
misconceived notion behind this that any such law will have the potency of
breaking the families. Even though there is no specific legislation dealing with
the offence of domestic violence, there are certain provisions under our criminal
law that penalises some of the domestic violence offences.

In India, the offence of domestic violence has got its recognition by the
1983 Amendment Act to the I.P.C. This Amendment inserted Section 498 A
in the I.P.C., which says that whoever being the husband or the relative of the
husband of a woman, subjects such woman to cruelty shall be punished with

UN documents, Preliminary Report submitted by the Special Rapporteur on

Violence Against Women, Its Causes and Consequences, dated Nov. 22. 1994, p.
16. See <www.un.org >.
The Beijing Platform of Action, Paras. 112 and 113.
26. Id., para. 124.
136 Cochin University Law Review [2003]

imprisonment for a term which may extend to three years and shall also be
liable to fine. This offence of cruelty is widely interpreted so as to include any
type of torture or harassment, whether mental or physical, that is faced by a
woman in her home, especially in the matrimonial home.

Apart from this section, a provision that penalises dowry death was
also inserted with the aim of preventing this offence. This was inserted by the
1986 Amendment Act to the I.P.C. as Section 304 B.

This provision is framed with an implied presumption of guilt of the

accused. The provision does not contain a clause whoever commits; instead,
of that the section presumes the accused to be guilty on the fulfillment of the
ingredients of the section. The mission of the prosecution is just to prove the
ingredients namely,

( 1) The death was caused due to burns or bodily injury or otherwise than
under normal circumstances,

The death was caused within seven years of the marriage,

Soon before her death she was subjected to cruelty or harassment by

her husband or relative,

(4) The harassment was for, or in connection with any demand for dowry.

It is for the accused to prove his innocence if the above ingredients are
satisfied. This is a provision that was inserted with an object to see that if any
murder related to dowry could not be proved due to lack of evidence, which
results in the acquittal of the accused, the accused shall be punished at least
under this Section. In this connection there is a provision in the Indian Evidence
Act also. It is the presumption as to dowry death that is dealt with under
Section 113B. Under this Section if the evidence discloses that immediately
before the death of the woman she was subjected to cruelty or harassment by
her husband or relatives, in connection with any demand for dowry and the
death has taken place within seven years of marriage, then, the court shall
presume that such persons had caused dowry death.
C.U.L.R. C.S. Ambili 137

Along with these two provisions certain other provisions of I.P.C. can
also be used for the protection of victims of domestic violence as well as in
punishing the perpetrators of some domestic violence offences. Forcing the
wife to terminate her pregnancy can be punished under Section 313 of I.P.C.
This section aims at the prevention of miscarriage, by any person, of a woman
without her consent. This 'any person' can include even her husband. Wife
battering' can be punished under the provision of I.P.C. that penalises the
causing of hurt'. Actually, this provision is not intended to deal with wife
battering as an offence. But, wife battering, which is a form of infliction of hurt
can be included under this provision. Wrongfully confining the wife in the
matrimonial home can be punished under the provisions that penalise wrongful
restraint and wrongful confinement. Female infanticide is another form of
domestic violence that is prevalent in almost all parts of India. This offence
can also be prevented by including it under the provisions of the But
this provision is not recognising female infanticide as a separate offence. Marital
rape, a form of domestic violence, cannot be punished under our criminal law
because it is expressly excluded from becoming an offence under the exception
to Section 375 of the I.P.C. It becomes an offence only if the wife is below
15 years of age30.

Misappropriation of the spouse's property with an intention to put her

under economic subjugation is also a form of domestic violence. Our penal
code contains provision to face this problem also. If the husband or his relative
dishonestly misappropriates or converts to his own use any property, which
the wife has entrusted him then, he is liable for the offence of criminal breach
of trust3 '. This provision can be used in a number of dowry related cases.

Inspite of all these provisions, I.P.C. cannot be used as a successful

weapon in curbing the menace of domestic violence. The reasons behind it

'Wife battering' means willfully striking the wife by her husband with or without
injury.
Supra n.5., s.323.
Id., S. 312.
Id., S. 375.
31. The Indian Penal Code, 1860, S. 405
138 Cochin University Law Review [20031

are the problems that arise at the time of bringing these provisions into practice.
In a country like India, where the institution of family is given that much
importance and where the husband is given a place very near to God, a woman
will never prefer to treat him with penal provisions.

Apart from all these provisions under our penal code, we have some
specific legislation that covers some offences that are part of domestic violence.
The most important among them is the Dowry Prohibition Act, 1961. The
practice of giving dowry to a daughter is an age-old institution in our country.
The Act was enacted with a view to check the growing menace of the social
evil of dowry. This enactment prohibits the giving and taking of dowry'. It
also tries to stamp out the practice of demanding dowry in any shape or form
either before or after the marriage". In L.V. Jadhav v. Shankarao
Abasaheh," it was held that even unilateral demand for dowry would
constitute an offence under the Dowry Prohibition Act, 1961.

This legislation is proved to be ineffective in achieving its purpose. The

main reason behind it is that the victims are often unaware of the legal remedies
or they are handicapped to access law behind the 'closed doors' of the family.
Even though such legislation is there, a social awareness about the evil of
dowry is not yet a success in India.

Similarly, the Commission of Sati (Prevention) Act, 1987, criminalises

the offence of Sati. This Act provides for punishment of death sentence for
abettors of Safi' This offence is considered to be the most serious offence

The Dowry Prohibition Act, 1961, S. 3.

Id., S. 4.
(1983) 4 S.C.C. 231. In this case the marriage of the appellant's daughter and the
second respondent was fixed. When the ceremonies were in progress, both the
respondents demanded an amount of Rs.50,000/- from the appellant in presence
of respectable persons under the pretext that the money was required for the
transport of the couples to USA where the second respondent was working.
The appellant was warned by the respondents that on non compliance of this
demand, the further ceremonies wouldnot be completed.
The Commission of Sati (Prevention) Act, 1987, S. 4.
C.U.L.R. C.S. Ambili 139

under the Act. A person who glorifies the practice of Sati is also liable to a
punishment'. Attempt to commit Sati is also an offence under this Act37 . By
the enactment of this legislation there is a considerable change in the attitude
of the society towards this practice and also a considerable reduction in the
number of Sati cases.

Our civil law too follows criminal law in as much as it addresses facts of
domestic violence without specifically defining domestic violence.

Some of the personal laws contain provisions that enable a person to

get divorce on the ground of domestic violence. The Hindu Marriage Act,
1955, Section 13 (1) (i-a) and the Dissolution of Muslim Marriage Act, 1939,
Section 2 (viii) recognises cruelty as a ground for divorce'. Cruelty under the
Hindu Marriage Act is not defined, but our courts, through various decisions,
tried to define it. Thus, the beating of the wife by the husband 39, harassment
on the basis of dowry demand40, unnatural sexual practices upon the wife' ,
rough and domineering conduce' are included under the definition of cruelty
under the Hindu Marriage Act by our courts.

The Dissolution of Muslim Marriage Act, 1939, defines cruelty as to

include habitual assaulting of wife or making her life miserable, attempting to
force the wife to lead an immoral life, disposing the wife's property or preventing
her from exercising her legal rights over it, obstructing the wife in the observance
of her religion. An aggrieved person can claim either divorce or judicial
separation 43 as a relief under these provisions.

Id., S. 5.
Id., S. 3.
The Special Marriage Act, 1954, S. 27 (1) (d), the Indian Divorce Act 1869, S. 10
and the Parsi Marriage and Divorce Act, 1936, S. 32 (d d) also allows cruelty as a
ground for divorce. But none of these elaborates or details the nature of cruelty.
Kausalva Devi v. Masat Ram, A.I.R. 1981 H.P. 63.
Shobha Rani v. Madhukar Reddy, A.I.R. 1988 S.C. 121.
Siddagangiah v. Lakshamma, A.I.R. 1969 Mys. 115.
Ibid.
The Hindu Marriage Act, 1955, S. 10.
140 Cochin University Law Review 120031

To supplement these provisions the personal laws contain certain

provisions for granting maintenance to the aggrieved party. One can obtain
maintenance from the spouse with or without filing a petition for judicial
separation or divorce on the ground of cruelty. Even though all these provisions
are there none of them recognize "domestic violence" as a category in itse I
on the basis of which one can claim a relief. Thus our criminal law as well as
civil law is a failure in dealing with domestic violence. It is true that some of the
domestic violence offences are covered by these laws and there are legal
measures for dealing with them. But these provisions are not at all sufficient to
give effective protection from domestic violence.

Contribution of the Judiciary

From the day of our independence the Indian judiciary, along with the
legislature of India, is trying to improve the condition of women in different
sphere of life. As a part of this, our judiciary interpreted the various legal
provisions meant for the protection of women in such a way as to be most
beneficial to our women.

The most important among the contribution of our judiciary is the decision
with respect to the stridhana property of a woman. Stridhana is proved to
be the root cause of many of the domestic violence suffered by Indian woman.
In Pratihha Rani v. Suraj Kumar,' the husband, soon after the marriage,
started harassing, teasing and beating the wife and ultimately turned her out
with her children after five years of their marriage. Inspite of repeated demands
he refused to return her ornaments, money and other belongings and dishonesty
misappropriated them. In this case the Supreme Court held that the wife is
the absolute owner of the stridhana property and can use her stridhana in any
way she likes. As per the court the husband and the in-laws are having only
the position of trustees with regard to the stridhana property. They are bound
to return the same if and when demanded by her. Any violation of it will
become a breach of trust.

44. A.I.R. 1985 S.C. 628. Sec also B T Govinclappa V. B. Noras inimical, (1991) 4
S.C.C. 106.
C.U.L.R. C.S. Ambili 141

Whenever a dowry related case is dealt with, our judiciary expressed a

clear intention of strict compliance of the penal statute. In S.Gopal Reddy v.
State of Andhra Pradesh,' the Supreme Court opined that awakening of
the collective consciousness against the evil of dowry is the need of the day.
In this case the court held that a demand for dowry is in itself an offence even
if the demand remains non-fulfilled.

The Indian judiciary, through its various decisions widened the scope
of cruelty with an intention to fulfill the object of the legislature behind the
insertion of this provision.In Pawan Kumar v. State of Haryana' mental
torture was held to be a form of cruelty. The ambit of mental cruelty was also
discussed by our Supreme Court. The court opined that whether one spouse
has been guilty of cruelty to the other, is a question of fact. It depends on the
various factors like the sensitivity of the individual victim, the social background,
the environment, the education etc. In Mohd Hoshan v. State of A. P. , 47 the
deceased sustained burn injuries and died at the hospital within a few days of
her marriage. The prosecution alleged cruelty on the part of the husband and
in laws. The appellants contended that scolding and taunting of the deceased
for not prepairing proper food and that she was not good looking was not
such a cruelty so as to push her to commit suicide. The Supreme Court held
that mental cruelty varies from person to person depending on the intensity of
sensitivity and degree of courage or endurance to withstand such mental cruelty.
Each case has to be decided on its own facts to decide whether the mental
cruelty was established or not. Thus, even the continuous scolding or faulting
for not preparing proper food or that she was not good looking amount to
mental cruelty in the particular case. In Smt. Madhuri Mukund Chitnis v.

(1996) 4 S.C.C. 596. In the case the accused demanded certain amount of money
and some jewellery as dowary. The demand was agreed upon by the other party
to the marriage. But, later they demanded a higher amount, on the non-fulfillment
of which the marriage was cancelled.
J.T. 1998 (1) S.C. 565. In the case wife was tortured and harassed in the matrimonial
home as part of repeated dowary demands. The torture and harassment continued
because of the non-fillment of the demand, resulted in her suicidal death.
47. A.I.R. 2002 S.C. 3271.
142 Cochin University Law Review [20031

Mukund Mar Chitnis and anothee the wife was subjected to series of
malicious and vexatious litigation and was humiliated and tortured through the
execution of search warrants. The Bombay High Court, in this case, held that
even the making of false allegations for the purpose of harassing wife through
criminal proceedings would constitute an offence under Section 498 A of
I.P.C.

This approach of the Indian judiciary in widening the ambit of 'cruelty'

is quite appropriate one especially when domestic violence cases are
considered. The judiciary thus, tried to utilise all the available provisions so as
to protect our women from various types of violence occurring in their house.

The Supreme Court expressed its strong protest against the tendency
of dowry related domestic violence becoming dangerous in nature and resulting
in death of the victim. In Lichhama Devi v. State of Rajasthan," the Supreme
Court held that in case of bride burning, death sentence might not be improper.
The persons who perpetrate such barbaric crime, without any human
consideration, must be given extreme penalty. In Ashok Kumar v. State of
Rajasthan,' the Court suggested that social reformist and legal jurists might
evolve machinery for debarring such a boy from remarriage irrespective of
the member of family who committed the crime and in violation penalise the
whole family including those who participate in it.

The different personal laws, in India allow cruelty as a ground for getting
a divorce in matrimonial disputes. This ground of cruelty covers many of the

1992 Cri. L.J. 111.

A.I.R. 1988 S.C. 1785. In this case the deceased was harassed and tortured in her
matrimonial home in the name of dowry. One day the neighbours saw flames
coming out of her kitchen. The neighbour who entered the room found the wife
in flames. She was taken to hospital. The doctor asked the inlaws to arrange
some blood. But the appellant, i.e., the mother-in-law did not allow the husband
to arrange blood. As a result she died.
50. (1991) 1 S.C.C. 166. The victim was regularly and continously tortured and ill-
treated by her in-laws for bringing an amount of Rs.5000/-, or an autoriksha from
her father's house. One day she was found dead out of burn injuries in her
matrimonial home.
C.U.L.R. C. S. Ambili 143

domestic violence cases. The courts, in India, are trying to widen the ambit of
the ground so as to provide relief in the maximum number of cases. This is a
ground for judicial separation also. So, by widening its ambit, the court can
provide relief to the maximum number with out breaking the marital relationship
by way of an order for judicial separation.

The act of cruelty can be mental or physical so as to constitute a ground

for relief. The Punjab High Court in Kaushalya v. Wisakhi Ram, 51 held that
even if the injuries are not so serious, if she actually ill treated and beaten,
then, such treatment must be held to amount to cruelty according to the
standards of all civilized societies. The Madhya Pradesh High Court in A.P.
Marry v. K.G. Raghavan," held that single act of violence may amount to
cruelty if the violence is of a grievous and inexcusable nature. The Himachal
Pradesh High Court tried to describe the degree of the element of cruelty in
the alleged act so as to become a ground for divorce. In Kaushaly Devi v.
Masat Ram," the husband used to beat the wife and did not even permit her
to talk to any neighbour. In this case the Court held that under the Hindu
Marriage Act, it is not necessary, as under the English law that cruelty must be
of such a character as to cause danger to life, limb or health or as to give rise
to a reasonable apprehension of such a danger. Under this Act, marriage will
be dissolved if it is proved that the other party has, after solemnization of the
marriage, treated the petitioner with cruelty.

Thus, the role of Indian judiciary in the protection of the victims of

domestic violence is a significant one. When considered in the light of existing
legal provisions the role-played by judiciary is worth appreciation. The judiciary
is strictly complying with the penal provision so as to prevent the escaping of
any guilty person from the clutches of law and at the same time to save an
innocent from being punished. No emotions or sentiments are allowed to
influence their decisions.

A.I.R. 1961 Punj. 521.

A.I.R. 1979 M.P. 40.
53. A.I.R. 1981 H.P. 63.
144 Cochin University Law Review 120031

Position in other Countries

Domestic violence is a phenomenon that occurs in developed and

developing countries alike. In many countries women are victims of traditional
practices that violate their human rights. In countries like United States and
Peru, major portions of the reported cases are related to domestic violence.
Many Governments, now, recognize the importance of protecting victims of
domestic violence and taking action to punish perpetrators.

The law in U.S.A. originally provided that the husband, as the master
of his household could subject his wife to corporal punishment or chastisement
so long as he did not inflict permanent injury upon her. During the nineteenth
century, as a result of feminist agitation for reform of marriage law, the authorities
in U.S.A. declared that husband had no right to chastise his wife. In the late
1960s, the battered women's movement brought this problem to the public's
attention and it led to many reforms meant to protect women from domestic
violence. The civil rights revolutions of the 1960s and 1970s caused a change
in the laws that, for a long period, were dealing with race and gender status
relations. A visible change was seen from 1976 onwards when, in Craig v.
Boren 54 , it was decided that sex based state action would be subjected to a
heightened or intermediate standard of review under the Equal Protection
Clause of the Fourteenth Amendment. After this decision, the gender specific
references were detected from the law and replaced with gender-neutral
language.

Under the U.S. system of federalism, the matters of family law were
historically regulated by the states. The different State legislations provide for
remedies like Protection Orders and Shelters. A protection order is a legally
binding court order that prohibits an individual who has committed an act of
domestic violence from further abusing the victim. These orders are obtained
through civil procedures. There are two types of protection orders, namely,

429 U.S. 190 (1976).

Now, the conduct is referred as to 'spousal assault' instead of using the word
`wife beating'.
C.U.L.R. C.S. Ambili 145

ex parte orders and full or permanent orders. A full protection order include
"no further abuse orders", "no contact orders", barring the abuser from
residence and eviction of the abuser from residence. An order may mandate
also for the counseling for the abuser. The primary aim of the protection order
is not to punish past conduct but to prevent future harms. The violation of the
protection order may result in arrest of the abuser.

Many States are making efforts to achieve and sustain continuing

preventive involvement after issuance of protection order. Ongoing preventive
government involvement may consist of service of orders, monitoring of
compliance, and immediate responses to order violations. A breach of the
protective order might qualify as a misdemeanor, criminal offense, or criminal
contempt and result in arrest. In U.S.A. the victims of domestic violence are
given shelters whenever it is a necessary. The need of a shelter is a peculiarity
for domestic violence victims because they have to face the prospect of a
domicile occupied by the assistant. Shelters provide immediate safety and
support, and are thus indispensable to a successful response to domestic
violence. The States use various means to fund shelters. A State legislature
may make grants, may also encourage interagency co-operation and
coordinated efforts among state or local governments.

At present, there is the Violence Against Women Act, 1994, which

creates a federal civil rights cause of action for gender motivated violence so
as to effectuate the constitutional mandate of equal protection. This legislation
was enacted to provide resources to local authorities attempting to combat
the types of violence women commonly suffer. This enactment analyzed
violence against women as a form of sex discrimination'''. The crimes motivated
by the victim's gender are crimes in violation of the victim's right to be free
from discrimination on the basis of gender. Moreover the existing bias and
discrimination in the criminal justice system deprives victims of gender-

56. For example under S. 302, "Crime of violence motivated by gender" is defined
as"any crime of violence committed because of gender or on the basis of gender,
and due, at least in part, to an animus based on the victim's gender".
146 Cochin University Law Review 120031

motivated crimes of equal protection of the laws. The Act provided victims
of rape and domestic violence, protection under federal civil rights laws. Under
this Act, woman will be given protection from intimate assault, treating it as a
form of sex discrimination.

The domestic violence problems are a subject of hot discussion in UK

also. These problems are now controlled by the new legislation enacted in
1996, the Family Law Act, 1996. This enactment came into force on July,
1996' 7 . The Part IV of the Act lays to rest the domestic violence legislations
existed at that time. Before that the complex and inadequate regime of domestic
violence contained in three separate pieces of legislation, namely, The Domestic
Violence and Matrimonial Proceedings Act, 1976, The Domestic Proceedings
and Magistrates Court Act, 1978 and The Matrimonial Homes Act, 1983.

Under the Domestic Violence and Matrimonial Proceedings Act, 1976

the County Court was empowered to grant injunction for the purpose of
restraining the other party to the marriage from molesting the applicant' or a
child living with the applicant'. The injunction can also be granted for
excluding the other party from the matrimonial home or part of the matrimonial
home or from a specified area in which the matrimonial home is included'''.
The Domestic Proceedings and Magistrate's Courts Act, 1978 empowers a
magistrate's court, under prescribed conditions to make an order upon
application by one party to a marriage that the other shall not use or threaten
to use violence against the other or against a child of the family"' or orders
requiring the respondent to leave the matrimonial home or to live away from
it. The protection under this Act is available only if the parties are lawfully
married. The Matrimonial Homes Act, 1983 gives protection to a spouse
who has no right over their dwelling house and at the same time the other has
a right. Under such a circumstance, the former is given a right not to be

<http://www.legislation.hmso.gov.uk/acts > visited on 15th March 2003.

The Domestic Violence and Matrimonial Proceedings Act, 1976, S. 1(1)(a).
Id., S. 1(1)(b).
Id., S. I (1)(c).
61. The Domestic Proceedings and Magistrates Courts Act, 1978, S. 16(1).
C.U.L.R. C.S. Ambili 147

evicted or excluded from the dwelling house except with the leave of the
court'. Now the object behind the inclusion of Part IV of the new enactment
called the Family Law Act, 1996, which deals with the domestic violence
problems, was to establish a simplified and fully integrated framework within
which relief from domestic violence could be sought. This Act provides for
two basic forms of relief, namely, the occupation order' and the non-
molestation order'. An occupation order may be granted for enforcing the
applicant's entitlement to remain in occupation. Such an order can also be
granted to exclude the respondent from the dwelling house or a part of it or a
defined area in which the dwelling house is included. A non-molestation order
is issued to prohibit the respondent from molesting a relevant child or a person
who is associated with the respondent. A 'relevant child' is any child who is
living with or is expected to live with either party to the proceedings or any
other child whose interest is considered as relevant by the court is included
under relevant child.

Domestic violence is recognized as a serious problem and an offence in

Malaysia also. There, with the intention of providing protection to the victims
of domestic violence, an Act65 was passed in 1994. Prior to the enactment of
the Domestic Violence Act, 1994 the only civil remedy available was an
injunction. With the enactment of the present Act, the violence against family
members in the context of matrimonial home is recognized as a social ill which
needs to be publicly addressed. The protection available under this enactment
is mainly of two types, namely, the Interim Protection Order and Protection
Order. The Interim Protection Order can be sought from the court by an ex
parte application. It operates as a temporary injunction to restrain the
commission of a domestic violence act. This order is issued during the pendency
of the investigations relating to the commission of an offence involving domestic
violence66 . The order shall cease to have effect upon the completion of the

The Matrimonial Homes Act, 1983, S. 1(1)(a).

The Family Law Act, 1996, S. 33.
Id., S. 42.
The Malaysian Domestic Violence Act, 1994.
66. Id., S. 4(1).
148 Cochin University Law Review 120031

investigation'''. A Protection Order may be issued for restraining a person

from using domestic violence against the complainant or a child or an
incapacitated adult'. Apart from these two orders, if the court is satisfied that
a necessity is there, then, it can also grant the exclusive occupation order, the
restraining order, the order to permit usage of vehicle and order to permit
collection of belongings. In Malaysia, now, there are a number of shelter homes
run by non-governmental organizations. There are government supports also
to these organizations by way of grants and other incentives. The strict
compliance of the Interim Protection Order and the Protection Order can be
ensured by the Magistrate by attaching the power of arrest to these orders.

In South Africa, the Prevention of Family Violence Act was enacted in

1993. This Act improved women's access to protection from domestic
violence by simplifying and expediting the procedure for obtaining interdicts('
against abusive partners. Under this Act, an abused woman can file for an
interdict at the nearest Magistrates' Court. The Magistrate can grant an interdict
if he believes that the woman is in danger. A suspended warrant of arrest can
also be given along with the interdict, in order to prevent the abuser from
further assaulting or threatening the woman.

Domestic Violence Bill, 2002 : Protection to Whom ?

In the light of the various movements at the International level as well as

in some other countries the women activists in India began to think of the
need for a domestic violence law. More over the number of domestic violence
cases are increasing day by day and the absence of a comprehensive law on
it becomes conspicuous. The National Commission for Women, in 1994,
drafted a model legislation for the protection of woman from domestic violence.
The Commission continuously put pressure on the government for this purpose.
This resulted in some moves on the part of our legislature and thus a bill
namely, Protection from Domestic Violence Bill, 2002, was introduced in
Lok Sabha.

Id., S. 4(2).
Id., S. 5.
69. Restraining Orders.
C.U.L.R. C.S. Ambili 149

This proposed legislation in India is having the aim of protecting the

rights of the women who are victims of violence of any kind occurring within
the family and to provide for matters connected there with or incidental there
to. It is drafted with a view to provide a remedy under the civil law which is
intended to preserve the family and at the same time provide protection to
victims of domestic violence'.

This proposed legislation defines domestic violence as any conduct of

relative of the victim, which subjects her to habitual assault, or makes her life
miserable, or injures or harms or forces her to lead an immoral life" . The
remedy available to an aggrieved person 72 under this Bill is to get a Protection
Order' against the respondents 74. A protection order may contain a direction
to the respondent to refrain from committing domestic violence". Otherwise,
it may contain a direction to pay such monetary relief as the magistrate deems
just"

To help the aggrieved party, there will be a Protection Officer' and

also a Service Provider'''. The protection officer is under a duty to inform the

The Protection from Domestic Violence Bill, 2002, Statement of Objects and
Reasons.
Id., S. 4.
Id., S. 2 (a) which reads : "Aggrieved person means any woman who is or has
been a relative of the respondent and who alleges to have been subjected to act
of domestic violence b the respondent."
Id., S. 2(h) which reads : "Protection order means any order made under s. 14 of
the bill."
Id., S.2 (j) which reads : "Respondents mean any person who is or has been a
relative of the aggrieved person and against whom the aggrieved person has
sought monetary relief or has made an application for protection order to the
magistrate or to the protection officer."
Id., S. 14 (1)(a)(i).
Id., S. l4 (1)(a)(ii).
Id., S. 2 (g) which reads : "A protection officer means an officer appointed by
state government under S. 5"
78. Id., S. 2 (k) which reads : "A service provider means any voluntary association
registered under the Companies Act, 1956 or any other law for the time being in
force with the objectives of protecting the rights and interests of women by any
means including legal aid, medical, financial or other assistance."
150 Cochin University Law Review [20031

aggrieved person of her right to apply for protection order and also to inform
about the service provider in the area so that she may seek support and help,
and to inform the aggrieved person of her entitlement to legal services.

If the respondent breaches the protection order issued against him,

then he will be punished with an imprisonment for a period that may extend up
to one year or with fine, which may extend to twenty thousand rupees or with
both'. This proposed legislation provides for civil remedies as the first step
against domestic violence. It provides for penal measures only if these
provisions for civil remedies are violated.
Even though this proposed legislation tries to give maximum protection
from domestic violence there are some defects in it. First problem is in the
definition of an aggrieved person. As.per the definition for a person, to get a
protection under this proposed legislation, is to be related with blood, marriage
or adoption. Moreover the violence within a house against dependents who
may not be related to the person, cannot be prevented by this proposed
legislation. This is a defective provision. In India there are a large number of
women who live with a man without going through the formalities of legal
marriage. Similarly the definition given to domestic violence is also a criticisable
one. Under this definition, in order to constitute domestic violence the
respondent is to habitually assault the aggrieved person. It gives an impression
that occasionally assaulting will not constitute domestic violence. Another
problem of the proposed legislation is that it gives the magistrate the power to
direct the parties to undergo mandatory counselling. This may create some
difficulties for an aggrieve person who is in need of an immediate relief. In
such circumstances an elaborate procedure of mandatory counselling cannot
be justified.
The Bill fails to prescribe specific qualifications for a Protection Officer.
This may result in defeating the very purpose of the Act because it is not sure
that a Protection Officer appointed will be able to perform their functions in
tune with the objectives of the Act. Another mentionable defect in the Bill is
that it gives the full discretion as to the amount of monetary relief, to the
magistrate. It does not contain a criteria or any guidelines for determination

79. Id., S. 18.

C.U.L.R. C. S. Ambili 151

of the amount. Moreover, the Bill prescribes no definite time frame for issuing
Protection Order. As a result of this, an appication for Protection Order may
see several adjournments and it will extend the period of sufferings to the
aggrieved person. Finally, the most serious lacuna in the present Bill is the
absence of right to shelter. An aggrieved person is definitely in need of a
shelter in most of the cases.

Conclusion

As a result of feminist thinking, the problem of domestic violence got

attention in the international level in recent years. In India an integrated
movement in the area started only in a very recent period. Till now we have
no specific legislation for the protection of victims of domestic violence. The
various pieces of legislation that deal with some of the domestic violence
offences are proved to be a failure. To curb the evil of dowry the Dowry
Prohibition Act, 1961, was enacted. Through the various provisions of our
penal code, the dowry death and the harassment and torture in the name of
dowry are also penalised. But, these legislative provisions lack proper
implementation. The special characteristic of our society is the main reason
behind it.

The social and cultural pattern in India gives a very important position
to the institution of family in our life. Moreover, as a part of this our woman
place her husband in a position that is very near to God. These two specialties
of our culture seldome allow a woman to initiate a legal proceeding, especially
under the criminal law, against her husband or the in-laws. She never invokes
any of these penal provisions against the domestic violence faced by her. She
fears that any such step on her part will definitely result in the break down of
family relationships. Similarly she can never, at any cost, expect her husband
to be punished with imprisonment. This resulted in the reduction of the number
of cases reported to the police against domestic violence. The woman, in
order to save her family, refrains from filing complaints.

This attracts our attention to the need of some legislation that provides
civil law remedies for the victims of domestic violenc.e, at least as a preliminary
relief. The proposed legislation pending in our Lok Sabha is a positive step
towards this need. This Bill provides for relief in the form of protection order
 152 Cochin University Law Review [20031

or interim protection order. This protection order contains direction to the

perpetrator from doing domestic violence or to give some amount as
compensation to the victim. Only the violation of these orders will result in
penal measures. But, this Bill also needs some amendments as already
discussed so as to give maximum protection to the victims of domestic violence.
The definition of an aggrieved person itself required some changes. The change
is to be made so as to include all those persons who live with the respondent,
without any relation by blood, marriage or adoption, and also the dependants
of the respondent. If such a change is not made, a large number of domestic
violence cases will remain out of the purview of this proposed legislation.
another important change is to be made in the definition of 'domestic violence'.
The use of the word 'habitually', in this definition, will defeat the very purpose
of the legislation. this will protect the removal of the word from the section
can alone solve this problem. The most important change that this Bill requires
is the inclusion of a provision for ensuring the right to shelter of the aggrived
person. The aggrived person's right to reside in the matrimonial home is to be
recognised. This will prevent the respondent from expelling the aggrieved
person from the matrimonial home during the pendency of legal procedures
under this proposed legislation. In case of aggrived persons who are not
related to the respondents by marriage, some other arrangements like 'shelter
homes' is to be provided. The government may be directed to seek the help
of non-governmental institutions for the maintainance of 'shelter homes'.

Even after enacting such a law its complete success cannot be

guaranteed. The domestic violence being a social issue and a strain in the inter
personal relationship, the role played by law has necessarily to be that of
prevention and not of only cure. The social circumstances that germinate
domestic violence have proved to be too stubborn to change. Thus, a reform
in social sphere also is needed. Law alone cannot do anything successfully to
solve the problem of domestic violence. A social awareness as to the legal
remedies available against it and the innovation of proper implementation
strategies will be the suitable solutions along with a specific legislation against
domestic violence problems in India.