Revision as of 13:20, 8 June 2021

The extent of the problem

2018, 19

Ambika Pandit, March 22, 2021: The Times of India

Domestic violence cases dipped 4.5% in ’19: NCRB

National Crime Records Bureau data showed that the number of cases registered under Section 498A of IPC for ‘cruelty by husband or his relatives’ registered an increase of 21.3% in 2019 compared with 2018. On the other hand, the number of cases registered under the Protection of Women from Domestic Violence (PWDV) Act 2005 reflected a decline of 4.5% in 2019 over 2018.

The number of cases registered under Section 498A was 1,04,551 in 2017; 1,03,272 in 2018 and 1,25,298 in 2019 while the number of cases registered under the domestic violence Act was 616 in 2017, 579 in 2018 and 553 in 2019.

Highlighting this data, the parliamentary standing committee on home affairs chaired by Congress MP Anand Sharma, in its report on ‘Atrocities and Crimes Against Women and Children’, recommended that the home ministry advise states/UTs to conduct periodic sensitisation and briefings of ground-level officials dealing with PWDV Act so that women facing domestic violence could be better equipped to access justice. “Due publicity should be given by states/UTs to PWDV Act through newspapers, TV channels and other means to create awareness among people. A nationwide study may also be conducted to monitor the progress with regard to implementation of various laws meant for preventing crimes against women,” the committee said.

The panel’s report said NGO ‘Jagori’ had informed it that several cases of domestic violence went unreported. The reasons for under-reporting were personal (embarrassment, fear of retaliation, economic dependency, fear of losing kids or home); societal (imbalanced power relations for men and women in society, privacy of the family, victim-blaming attitudes, lack of acceptance and support from natal families); and institutional (humiliation by police, entrenched patriarchal practices within courts, inadequate shelter and short-stay homes and one stop centres).

2019-20

Ambika Pandit, December 15, 2020: The Times of India

Karnataka tops the list of 17 states and five Union Territories with 44% of women surveyed in the state in the age group of 18-49 years saying they had faced spousal violence at some time, followed by Bihar (40%) and Manipur (39.6%), according to data from Phase I of National Family Health Survey-5 (2019-20).

NFHS-5 defines spousal violence to include “physical and/or sexual violence”. Three more states reported over 30% of women in the 18-49 years age group responding in the affirmative to the question if they had “ever experienced spousal violence”. These states are Telangana (36.9%), Assam (32%) and Andhra Pradesh (30%). Karnataka, in fact, reported a spike when compared to NFHS- 4 (2015-16) when 20.6% women surveyed had experienced spousal violence. Assam, too, witnessed a rise when compared to 24.5% in NFHS-4.

On the other hand, though the figure is high in Manipur, the state reported a sharp decline as compared to 53.2% in the 2015-16 survey. Andhra Pradesh, Bihar and Telangana also registered a decline in 2019-20 when compared to NFHS-4 figures of 43.4%, 43.7% and 42.9% respectively. Data shows 25.2% women in Maharashtra reported having experienced spousal violence, up from 21.3% in 2015-16 while West Bengal (27%) showed a decline when compared to 33.1% women falling in this category in NFHS-4.

Kerala had 9.9% of women reporting spousal violence, a decline from 14.3% in 2015-16. Jammu & Kashmir (9.6%), Himachal Pradesh (8.3%), Goa (8.3%) and Nagaland (6.4%) fall in the below 10% category with Lakshadweep recording the least (1.3%) number of such women. The survey in the section of gender-based violence also provides an insight into data on young women in the 18-29 years’ age group, who experienced sexual violence by age 18. Child sexual abuse often goes unreported and hence this data is critical. The percentage of women who admitted to having experienced sexual violence by the age of 18 years ranged from 11% in Karnataka, 9.7% in West Bengal, 8.7% in Ladakh, 8.3% in Bihar, 8% in Assam and 6.2% in Maharashtra to 1.8% in Andaman & Nicobar Islands and 0.8% in Lakshadweep.

Grounds for "domestic violence"

Not paying for child's birth is not DV

Aamir Khan2, Not paying for child's birth is not domestic violence', August 15, 2017: The Times of India

Expenses of child's delivery whether borne by the husband or by the woman's parents is of no consequence, held a court while rejecting a woman's claims of domestic violence against her estranged husband and in-laws. The court held that the same did not amount to domestic violence.

Similarly, metropolitan magistrate Bhavna Kalia also held that her allegations were vague. The woman had filed a plea under the Protection of Women from Domestic Violence Act seeking various relief including compensation and an order on residence.

The court noted that the wo man's testimony was full of contradictions which prima facie showed that the husband and his family cared for the couple's child. “It appears that the respondent was bearing all the household expenses and school expenses of the child but no extra expenses of the aggrieved. This cannot amount to domestic violence,“ the court held.

However, she alleged, an additional demand of Rs 2-3 lakh was made by the in-laws. The woman also asserted that in 2001, when she was pregnant, her in-laws sent her to her parental home for the delivery of the child. She claimed all the expenses of her hospitalisa tion were borne by her parents.

She said that in January 2002, she was “compelled“ to leave her matrimonial home with her child. The woman also said that on her “alcoholic“ husband's demand her parents had to arrange for a separate accommodation. In April 2007, the husband deserted the woman and their child. The husband and his family , through their counsel Prabhjit Jauhar, however refuted all the allegations made by the woman. The counsel said that the man and the woman had eloped, and therefore, there was no question of a dowry demand. On the contrary, it was the woman's father and brother who had a problem with the marriage and had also threatened the couple.

Households, shared

From the archives of The Times of India 2007, 2009

‘Right to share house can be enforced against husband’

New Delhi: Women fighting legal battles to re-enter the ‘‘shared household’’ can enforce their right to cohabit against estranged spouses and not against in-laws under the Domestic Violence Act, a court has said.

‘‘If the interpretation (that the Act provides right to share house with husband’s relatives) is accepted, all houses of the husband’s relatives will be shared households and the wife can well insist in living in them merely because she had stayed there with her husband for some time in the past. Such a view would lead to chaos and would be absurd,’’ additional sessions judge S K Sarvaria said.

The court, which rejected the plea of an estranged wife seeking re-entry into a house of her mother-in-law, cited a Supreme Court judgment on the issue. ‘‘Undoubtedly, when the husband has been living in a rented property somewhere else, wife cannot say that the property owned... by her mother-inlaw (even prior to her marriage) is the shared household and she should be allowed to re-enter such property,’’ it said.

‘‘The wife is only entitled to claim a right to residence in a shared household, and a ‘shared household’ would only mean the house belonging to or taken on rent by the husband, or the house belonging to the joint family of which the husband is a member,’’ it said.

It was hearing the appeal filed by a Delhi-based woman, who had challenged the order of a lower court by which she was restrained from entering the house owned by her mother-in-law. PTI

 SC: Husband liable for woman’s injuries in matrimonial home

Dhananjay Mahapatra, March 9, 2021: The Times of India

Denying pre-arrest bail to a man accused of assaulting his spouse, the Supreme Court said a husband would be primarily liable for injuries inflicted on a wife in the matrimonial home even if these were caused by his relatives.

It was the man’s third marriage and the woman’s second. A year after the marriage, a child was born to them in 2018. In June last year, she lodged a complaint with Ludhiana police against her husband and inlaws after an alleged brutal assault on her by the husband, father-in-law and mother-in-law, accusing her of not meeting their growing dowry demands. When the husband’s counsel Kushagra Mahajan persisted with the request for anticipatory bail, a bench headed by CJI S A Bobde said, “What kind of a man are you? She alleges that you were about to kill her by strangulation. She alleges that you forced a miscarriage. What kind of man are you to use a cricket bat to beat up your wife?”

When Mahajan said she had alleged it was the husband’s father who had used the bat to assault her, the CJI-led bench said, “It does not matter whether it was you (husband) or your father who allegedly used the bat to assault her. When injuries are inflicted on a woman in a matrimonial home, the primary liability is on the husband.” The bench rejected the man’s petition.

The Punjab and Haryana high court, while refusing to grant anticipatory bail to the husband, had extracted the woman’s complaint, which read, “On June 12, 2020, at about 9 pm, the petitioner (husband) and his father, armed with a cricket bat, gave the complainant merciless beatings in which the petitioner’s mother also participated; the petitioner attempted to strangulate the complainant and his father put a pillow on her face with an intention to kill her; after giving her merciless beatings, she was thrown on the road; on being informed, the complainant’s father and brother came there and got the complainant treated as also medico legally examined.” She had also alleged that she had miscarried twice earlier because of assault in her matrimonial home.

Looking at the medical report, the HC had said, “The complainant’s MLR reveals as many as ten injuries on her person including five on her head/face, one on her vagina and multiple reddish bruises of varying sizes around her neck. Eight of the ten injuries are medically opined to have been inflicted by a blunt weapon.”

Refusing to grant pre-arrest bail, the HC had said, “The above injuries and the medical opinion with regard to eight of them having been inflicted with a blunt weapon give prima facie credence to the allegations by the complainant with regard to the petitioner having attempted to murder her by strangulation and of beating her with a cricket bat (a blunt weapon).”

Live in partners

`Live-in partner can't claim aid under DV Act'

Mumbai The Times of India Mar 06 2015

Rajesh Khanna's wife Dimple Kapadia and her family sought quashing of proceedings against them initiated by initiated by the late actor's alleged live-in partner, contending that a woman in such relationship cannot claim relief under the Domestic Violence Act.

Anita Advani, the alleged live-in partner of Khanna, had in 2013 filed a complaint under the DV Act against the Khanna's estranged wife Kapadia, daughters Rinkie and Twinkle and son-in-law Akshay Kumar.

Advani had claimed she was evicted from Khanna's bungalow and sought monthly maintenance and a flat. A court had then sought their reply.“As live-in partner, she cannot claim relief from Khanna's estranged wife and family who have never shared a roof with her,“ Dimple's lawyer said.Justice M L Tahaliyani will now hear the case on March 10.

DV Act not applicable if ’living in’ with a married man

Abhinav Garg, DV Act not for live-in ties if man already married: HC, October 10, 2018: The Times of India

In an important ruling, Delhi high court has said that the Protection of Women from Domestic Violence Act (DV) can’t be invoked in a live-in relationship if the man is already married.

Justice R K Gauba, in a recent order, quashed the DV Act proceedings filed by a woman against her live-in partner, after HC found that she was aware he was married to someone else while living with her.

“The relationship between the parties not being in the nature of domestic relationship within the meaning of expression used in Section 2(f) Domestic Violence Act, proceedings arising therefrom against the petitioner are quashed,” the court noted.

The woman had filed a petition under DV Act seeking various relief in the nature of protection order, residence order, monetary relief and other compensation from the male partner.

“The factum of marriage of the petitioner was well-known to the second respondent (woman) before she entered into the live in-relationship with him...she very well knew that in order to enter into a marital relationship with another person it was necessary that he also should not be married to another person,” the court observed, pointing out that for a case to qualify under DV Act, there should be a possibility of a couple having a “domestic relationship.”

HC cited Supreme Court rulings to add that the parties should be “otherwise qualified to enter into a legal marriage with each other” while claiming to be in a domestic relationship such as a live-in arrangement.

Appearing for the male partner, advocate Gurmeet Narula had argued that the woman’s entire case is founded on allegations of a“live-in relationship” but such a relationship was not in the nature of marriage as she was aware that his client during that period was married to another woman.

In her plea, the woman had alleged that the couple had come together and became physically and emotionally involved, and started living together in a house in Gurgaon since 2010. She claimed even though aware that her partner had a child from his first marriage, the man led her to believe his marriage had been dissolved by a decree of divorce by a court. She further claimed before HC that the man had told her in 2008 that his wife had sent him a notice for divorce and he had finally separated from her permanently through divorce by mutual consent in 2010.

However HC wasn’t impressed by the claim and noted that “fact remains that throughout the period the parties lived together under the same roof in Gurgaon the petitioner was married to another woman, their marriage having continued and subsisting that is to say, it having not been dissolved by a decree of divorce.”

HC cited SC rulings to add that the parties should be ‘otherwise qualified to enter into a legal marriage with each other’ while claiming to be in a domestic relationship such as a live-in arrangement.

Jurisdiction of courts

HC:  ‘Mumbai court can try US plaint’

Rosy Sequeira , Oct 14, 2019: The Times of India

If an incident of domestic violence has occurred in the US, a magistrate in Mumbai has jurisdiction to try the complaint and it is not timebound, the Bombay HC held recently while dismissing a plea by a US-based IT professional.

Justice Sambhaji Shinde’s verdict came on a petition by a 40-year-old man after the Mulund metropolitan magistrate ordered him to pay interim maintenance to his wife and minor son and the sessions court dismissed his appeal.

The couple got married in Lucknow in 2008 as per Muslim rites and left for the US. Their son was born in 2013. Due to differences, the woman moved in with her brother in 2014. The husband filed for divorce in the California superior court and sought custody of the child.

In 2015, the woman returned to India. The husband subsequently divorced her in India. In 2016, the US court granted custody to the father and issued an arrest warrant for the mother. The woman filed a case under the Domestic Violence Act, 2005. In 2017, the Mulund magistrate directed interim maintenance of Rs 30,000 to the wife and Rs 15,000 to the son. The sessions court upheld the order.

In HC, the husband’s advocate Prashant Pandey argued there was over two years’ delay by the wife in filing the complaint and, on this ground alone, it ought to have been dismissed. He further contended the magistrate had no jurisdiction to entertain the complaint since the alleged domestic violence had not been committed in India.

The wife’s advocate countered she had filed the case here as she lived in Mumbai with her brother. In his September 25 judgment, justice Shinde said in view of the SC’s verdict and also observations by both lower courts, “there is no substance in the contention” regarding jurisdiction.

Second Wives: maintenance for, rights of

From the archives of The Times of India 2010

HC opens maintenance door to ‘second wife’

Shibu Thomas | TNN

Mumbai: A second wife has to battle not just stigma but also her ‘‘illegal’’ status under Indian laws. If the relationship sours, the laws say she has no right to a maintenance from her polygamous husband nor a share in property (though the children from the wedlock have inheritance rights). But the Bombay High Court, in a path-breaking ruling, has opened a small door for such women.

Justice A B Chaudhari has said second wives could approach courts under the Domestic Violence Act. The judge asked a Nagpur-based 45-year-old housewife, Manda Thaore, to move court under the 2005 law to seek maintenance, accommodation and other benefits from the man who married her 27 years ago.

Justice Chaudhari also directed the husband, Ramaji Thaore (59), to pay a compensation of Rs 15,000 to Manda to cover her legal costs so that she could prosecute him under the Domestic Violence Act.

‘‘To my mind, it is clear that the husband has treated Manda as if she was his wife (but it was his second marriage),’’ said Justice Chaudhari. ‘‘It is no doubt true that Ramaji had cheated Manda and had kept sexual relationships with her resulting in the birth of two children... despite holding that there had been close relationship between applicant and respondent and he treated her like wife and produced children, unfortunately, this court cannot help Manda for providing her maintenance,’’ said the judge, but went on to say that a new law could come to her aid.

‘‘This is a fit case for Manda to have a recourse to the provisions of the new beneficial act, the Protection of Women From Domestic Violence Act, and proceed against her husband for claiming accommodation, maintenance.’’

Under the Indian system, a second wife has no legally enforceable rights unless the man has divorced his first wife. A wife can claim maintenance and alimony under the Hindu Marriage Act as well as the Criminal Procedure Code; she is also entitled to a share of the property. ‘‘The Supreme Court has said that the second marriage is a nullity and so a second wife has no right which is available only to a legally wedded wife,’’ said advocate Arfan Sait, an advocate who practises in the HC.

The DVA says that a woman can move court against a person with whom she is having ‘‘a domestic relationship within a shared household’’, seeking protection from abuse as well as maintenance and accommodation.

Wives’ rights

Woman has right to stay even in in-laws’ home: SC

Dhananjay Mahapatra, October 16, 2020: The Times of India

Woman can’t be thrown out, even if house not owned by husband: SC

NEW DELHI: In a landmark judgment under the Domestic Violence Act that aims to ensure in-laws treat daughters-in-laws well, the Supreme Court on Thursday ruled that once a woman lodges a complaint under the 2005 law, she will have the right to residence in the shared house even if it was rented or owned by the in-laws and the husband had no ownership right over it. In an important widening of the term ‘shared household’ to protect hapless women at risk of being thrown out of marital homes, the court ruled that the aggrieved woman can claim right of residence in any house that she had lived in with her husband or live-in partner even if that house belonged to the parents-in-law, the husband’s relatives, or was even a tenanted premise where they lived together. To remove her from the house, the only option with the owner of the house is to file an eviction suit, it said. Setting aside an earlier ruling that a distressed woman could have right to residence only if the house where she resided after marriage or during a live-in relationship was owned by the husband or if he had shared ownership right over it (such as a family home), a bench of Justices Ashok Bhushan, R S Reddy and M R Shah gave a wider meaning to ‘shared household’ concept to offer foolproof protection to women or live-in partners from being summarily thrown out of the house by the husband or the in-laws during pendency of her complaint under DV Act.

The bench explained the meaning of ‘living together’ and said there should be some permanency attached to it. “Mere fleeting or casual living at different places shall not make a shared household. The intention of the parties and the nature of living, including the nature of the household, have to be looked into to find out as to whether the parties intended to treat the premises as a shared household or not,” it said.

But it held the DV Act as a milestone in ensuring rights of women, noting that they were often unable to register a complaint due to adverse social equations.

In a 151-page judgment ironing out important issues in applicability of the Protection of Women from Domestic Violence Act, 2005, Justice Bhushan said, “Definition of shared household given in Section 2(s) cannot be read to mean that shared household can only be that household which is household of the joint family of which the husband is a member or in which the husband of the aggrieved person has a share.”