Domestic Violence Legislation In India- An Appraisal

Dr. Shilpa Jain

doi:10.53724/lrd/v1n2.02

Authors

Dr. Shilpa Jain Assistant Professor of Law, Rajiv Gandhi University of Law Punjab, Patiala (India)

DOI:

https://doi.org/10.53724/lrd/v1n2.02

Keywords:

Domestic Violence , Domestic Violence Legislation, Measures to protect Women

Abstract

India became independent in 1947 and adopted a Constitution in 1950, which remains in force today.1 Part III of the Constitution protects fundamental rights, including the right to life, which has been interpreted to mean the right to live a life with dignity and free from violence.2 The Constitution also empowers the State to take affirmative measures to protect women under Article 15.3 The Indian Parliament has often invoked Article 15 to pass special legislative or executive measures to protect women, which have generally been upheld by the CourtsIt took India fourteen years after independence to pass its first law directly relating to violence against women. In 1961, the Dowry Prohibition Act (DPA) came into effect which penalized not only taking but giving of dowry. However, the Act did not effectively curb the practice of dowry.5 The Indian Parliament later passed Dowry Prohibition (Amendment) Acts in 1984 and 1986, but their impact was as negligible as that of the 1961 Act.6

Metrics

Metrics Loading ...

References

Art 394 Commencement: This article and Articles 5, 6, 7, 8, 9, 60, 324, 366, 367, 379, 380, 388, 391, 392 and 393 shall come into force at once, and the remaining provisions of this Constitution shall come into force on the twenty sixth day of January, 1950 , which day is referred to in this Constitution as the commencement of this Constitution.

2Art 21 of the Constitution of India, which protects the right to life, has been given this expansive meaning through a series of landmark Supreme Court judgments, e.g., Francis Coralie Mullin v. Administrator, Union Territory of Delhi, (1981)2 S.C.R. 516, 530 (India) (holding that preventive detention must be minimally restricted because Article 21 protects right to freedom against any unlawful detention); Unni Krishanan v. Andhra Pradesh, (1993) 1 S.C.R, 594,703(India)(extending the right to life to the right to have a livelihood); People’s Union for Civil Liberties v. Union of India, Writ Petition No. 196 of 2001 (that the right to food be included within the right to life)

Art 15(3) of Constitution of India stating “nothing in this article shall prevent the State from making any special provision for women and children”.

Lawyers Collective-Women’s Rights Initiative, Staying Alive, 5th Monitoring & Evaluation 2012 on the Protection of Women from Domestic Violence Act, 2005 -xii (2012) (hereinafter Lawyer’s Collective Report) (nothing that Article 15 is largely resorted to for the protection of women and children).

Ghosh & Choudhuri,, p.320 (noting that many acts of violence related to dowry were not reported); Also Lawyer’s Collective Report, at xii (explaining that the Act could not actually prevent the demand for and taking of dowry).

Ghosh & Choudhuri,, p.320 (showing that dowry deaths actually increased over time); Also, Lawyer’s Collective Report at xii (failing also because of inaction of state officials).

As defined by the first schedule of the Code of Criminal Procedure in the criminal justice system of India, a cognizable offence is a criminal offence in which the police are empowered to register a First Information Report, Investigate, and Arrest an accused without a court issued warrant. A non-bailable offence is one in which the accused must appear in the court to get the bail and it is the discretion of the court to grant the same or not.

Indian Penal Code, 1860, Section 498A.

Lawyer’s Collective Report, p.xii (Explaining that the nation’s policy to council, conciliate, and meditate was preferred) also Lawyer’s Collective, Handbook on the Law of Domestic Violence xvi (Indira Jaising ed.) (2009).

Ibid, (demonstrating that the cruelty must specifically relate to dowry, unlike the general cruelty provided under Section 498A of IPC)

Ballarpur Industries Ltd v. Union of India, AIR 1997, Del 1.

Sanjay Dutt v. State 1994(5) Cr LJ (SC) 679.

Afzalunnisa Begum v. State of A.P, (2010) DMC 654.

State of Rajasthan v. BasantNahata, AIR 2005 SC 3401.

A. ManjulaBhashini v. Managing Director, A.P Women’s Co-operative Finance Corporation Ltd, (2009)8 SCC 431.

Manish Tandon v. State, (2010) DMC 242.

Sunitha v. State of Kerala, II (2011) DMC 353.

MaranNama v. State of Tripura 2010 (90) AIC 833(Gau) (Agartala Bench).

RajaramPanwari v. Asha Panwari, 2010 (88) AIC 547(MP) (Indore Bench).

See, e.g., State v. Rhodes, 61 N.C. 453 (186 8), in which the court stated: Although husbands have no right to whip their wives, nor wives their husbands, courts will not interfere, to inflict on society the greater evil of raising the curtain on domestic privacy, merely in order to punish the lesser evil of trifling violence,

Section 304B, 498A of I.P.C.; Section 113A, 113B of I.E.A.

R. E. Dobash, Women, Violence and Social Change , p.2 (1992).

23National Commission on Women, The Domestic Violence to Women (Prevention) Bill: Indira Jaisingh, Reconsidered; Dangerous Bill, India Together, November 2002 available at

http://www.indiatogether.org/women/violence/domvolbillhtm last visited on 15th April 2014

The Protection from Domestic Violence Bill available at http://indiacode.nic.in/incodis/whatsnew/ProtectionDomes.htm

Supranote 193.

Section 2. (a) read with Section 2(i), 2002 Bill.

Section 4, 2002 Bill.

AmeeYajnik, “Domestic violence-Protection of human Rights”, Gujrat Law Hearld Journal, 2 (1999).

Article 3 of UDHR : Everyone has the right to life, liberty and security of person.

Section 2 (d) Protection of Human Rights Act, 1993” means the rights relating to life, liberty, equality and dignity of the individual guaranteed by the Constitution or embodied in the International Covenants and enforceable by Courts in India.

Aruna Pramod Shah v. Union of India, Wp(Crl.)425/2008,High Court of Delhi, (Decided on 07.04.2008); Dennison Paulraj and Ors v. Union of India, rep. by Secretary, Ministry of Law and Justice and Ors, MANU/ TN/09757/2009; Writ Petition No. 28521 of 2008

Indra Sarma v. V.K.V Sarma, R.C.R. (Criminal) 179 SC.

34The W.H.O, The World Health Report, 2005 p.11(2005).

35 The Convention on the Elimination of All Forms of Discrimination Against Women, adopted Dec. 18, 1979, 1249 U.N.T.S. 13 (entered into force Sept. 3, 1981) [hereinafter CEDAW 1979] was originally adopted in 1979. In 30 articles, the CEDAW describes the definition of discrimination against women and the rights of women and the states responsibility to guarantee those rights. The CEDAW is supplemented by a number of General Recommendations that further detail the content and the use of CEDAW. Up to date, 189 countries, almost 90 percent of the members of the United Nations, have ratified the CEDAW. See Convention on the Elimination of All Forms of Discrimination against Women, UN Treaty Collection. The promulgation of CEDAW was the culmination of the efforts of the global women's human rights movement to bring together in a single document a charter of women's rights. Despite its shortcomings, it gives voice to the notion that women's rights are human rights.

UNFPA, State of World Population, (2005) and should forthwith be eliminated. Unfortunately, in spite of international commitments, the lives of girls and women around the world are often marked by gendered discriminatory practices. However, domestic violence is now a critical public policy issue of transnational character and showcases how global forces coalesced with local women's groups and human rights movements can place it on national policy agendas.

See generally Special Rapporteur on Violence against Women.

Ibid