1

Legal Analysis on Domestic Violence in India – An overview

Mr. Dillip Kumar Behera
Ph.D. Scholar, P.G. Department of Law, Berhampur University, Berhampur, Odisha

Abstract
A woman is still neglected lot and subject to discrimination and victimization at
home as well as outside home. This grim picture is both at national and international.
Women, irrespective, of their caste, colour and creed have been discriminated and were
given subhuman status. The dominance of the then male centred ideas adversely affects
the status of women. The prevalence of domestic violence reveals that, contrary to
popularly held belief that home is the safest place to live in often turns out to be the
dangerous. Indian women have been victimized, humiliated, tortured and exploited
through the ages. Female-foeticide, Satipratha, child marriage, dowry, social boycott of
the widows, etc., are just a few examples of the atrocities suffered by women.

Key words: Woman, Domestic violence, Female Infanticide, Dowry

I. Introduction

Domestic violence is essentially violence perpetrated by persons in intimate

family relationships. Family violence includes hitting, slapping, choking, kicking,
biting, pushing, using weapons, entering a residence without permission, destroying
personal property, forced sexual acts, and direct threats of violence against another
family member. Domestic violence is not limited to physical and sexual abuse, but also
includes emotional abuse such as threats of violence and stalking.

Family being considered as a private domain, even, abuse, exploitation,

injustice, discrimination and violence are allowed in our patriarchal structure. To this
day the majority of Indian women do not have any independent or self-dependent
status. It seems to be most disillusioning that, within the family itself some of the things
which have so far developed which are not healthy and conductive for the other
subordinate or dependent member of the family. Domestic violence often remains a
hidden problem which has long lasting effects on its victims.

Women who challenge their husband's right to control their behaviour or who
ask for household money or step out of the house without permission may face
violence. This process leads men to believe their notion of masculinity and manhood,
which is reflected to the degree by which they control their wives. The judiciary and
police are supposed to be the protectors of the victims of violence as and when such
incidences knock their doors.

Domestic violence is a pervasive serious social malady. It has been in existence

for a very long time. It bluntly, trips women of their most basic human rights, the right
to safety in their homes and community, and carried to the extreme, it may kill, despite
its cost in lives, health, economically well being and work productivity and its impact
on other social-economic variables, domestic violence tended and still tends to be a
‘Crime of Silence’. This ensures that information about domestic violence is sketchy
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and as a consequence, the perpetrators often escape accountability and continue to

commit violent acts.

Gender discrimination in the society is not new. Patriarchal societal set up in

India has positioned women in the second place and thus the discrimination continues
even today in the society. Though some of the evil systems of ancient Indian society
like Sati Pratha and parda system are abandoned, discrimination in numerous fields is
existing in the present society.
Steps have been taken at the national and international fronts to protect women
from Domestic Violence. The United Nations, from the very beginning is concerned
with the plight of women. Efforts rendered by the United Nations from 1975 to 1995,
through conventions and conferences, addressing violence against women, brought to
light the specific issue of domestic violence against women as a topic for consideration
in the international field. The World Conferences held in Mexico, Copenhagen,
Nairobi and Beijing have taken up the issues of women seriously with a view to finding
productive solutions.
In India, the Indian Constitution has ensured equal status to all i.e. not only
between men and men, women and women but also between men and women. The
Constitution of India guarantees to all Indian women equality, no discrimination by the
State, equality of opportunity, equal pay for equal work. In addition, it allows special
provisions to be made by the State in favour of women and children, renounces
practices derogatory to the dignity of women, and also allows for provisions to be made
by the State for securing just and humane conditions of work and for maternity relief.
Indian criminal law also protects women from violence in matters of death, dowry,
divorce, indecent representation etc.
Before passing of the Protection of Women from Domestic Violence Act, 2005,
there was no independent and comprehensive complaint mechanism to deal with the
problem of domestic violence. The problem of domestic violence was seen as any other
violent crime defined in the Indian Penal Code. The mechanism which was applicable to
the crimes against women identified under the IPC was applicable to the cases of
domestic violence substantially. Protection officers are appointed to deal with the cases
of domestic violence specifically. NGOs are also involved with an intention to enforce
the law more effectively. It is also observed that no proper action is taken to bring
awareness among women about their rights and protection. Particularly in the rural
areas due to lack of education and other problems most women are unaware of any law
for their protection.
The NGOs and media should organize more effective programmes to increase
awareness among the rural areas. Media being a powerful medium to spread the
message should be responsible in dealing with gender issues. Overall development of
the condition of women is possible only if everyone concerned takes up the
responsibility. Change should come from the root i.e. the family. Gender
discrimination is the problem of the whole society and steps should be taken at all
levels to stop the evils committed against women. With the increase of education and
awareness of the law women themselves will learn to protect themselves. Thus it could
be said that overall gender discrimination can be curtailed only through awareness and
awareness must be increased in the right way and at all levels. Indian women also have
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been victimized, humiliated, tortured and exploited through the ages. 1 There have been
incidents of murder rape, abduction and torture from time immemorial. Crimes and
violence against women were being perpetuated right from time immemorial.
II. Impact of Domestic Violence on Women
Violence does not occur as an isolated incident in the lives of abused married
women and young girls. The physical and mental violence occurs on a regular basis
causing incalculable suffering and inflicting deep scars on the victims. Women’s health
is often permanently damaged or it can have fatal consequence. Pregnant women are
particularly at risk. On account of this, domestic violence has devastating repercussions
on the violence. It may lead to their own feelings of low self-esteem, helplessness and
inadequacy. Children may also themselves may become victims of their fathers abuse if
they try to defend their mother. On the contrary, boys who witness their father beating
their mother are likely to emulate this behaviour. The economic sot to society of
dealing with this problem is enormous in terms of medical treatment and counselling
for the victim, the abused woman’s dependence on the welfare system and the
introduction of preventive measures.
III. Protection of women from Domestic Violence under International Treaties
The phenomenon of domestic violence against women was identified primarily
as a private concern. From this perspective, violence was seen to be a matter of
individual responsibility, and the woman was perceived to be the one responsible for
either adjusting more adequately to the situation as dictated by cultural norms or
developing an acceptable method of suffering silently. This basic understanding of
domestic violence as a personal issue has limited the extent to which legal resolution to
the problem has been actively pursued.
The international agencies working on women’s development have taken the
lead in attempting to fill critical gaps in efforts to promote and protect women’s human
rights. Historically, stark distinctions were apparent as between the ‘public sphere’-the
political, legal and social institutions and the ‘private sphere’-the home and the family.
Doctrine of privacy and protection of the family reinforced this artificial divide.2

(A) The United Nations and the protection of Women’s rights

The United Nations, from the very beginning is concerned with the plight of
women. Apart from the charter provisions, more than fifty instruments on human rights
have been formed by the United Nations since its inception, many of them recognize

1
Sinha, Niraj, (1984), Women and Violence, Vikas Publishing House, New Delhi,
pp.22-36.
2
The domain of International law was held to be governing only the relationship between
nation states or the treatment of individuals by the government or public officials. The
traditional view was that international law is applicable only to governments and their
representatives, but not to private actors as in the case of family violence. Domestic violence
against women occurring within the four walls of the family was defined as a private issue
and was thus kept outside the ambit of International law.
 4

the sex or gender as important premises of analysis when it comes to examine the
enjoyment of human rights.3
The necessary theory of accountability of states4 for their inaction in cases of
violence against women within the home led to the gradual acceptance of the notion
that the state making little or no effort to stop violence is tacitly condoning it.5
(B) International Covenant on Civil and Political Rights (ICCPR): This Covenant
was adopted by the United Nations General Assembly on 16 December 1966 and
entered into force on 23 March 1976. By the end of 2001, the Covenant had been
ratified by 147 states including India. In light of this legally binding international
obligation, the failure of a government to prohibit acts of violence against women
constitutes a failure of state protection. The main provisions of the ICCPR that can be
applied to cases of domestic violence are as follows: Articles 1, 2, 3, 6, 7, 16, 23 and
26. The first Optional Protocol to the ICCPR allows individuals, whose countries are
party to the ICCPR and the protocol, who claim their rights under the ICCPR have been
violated, and who have exhausted all domestic remedies, to submit written
communications to the UN Human Rights Committee. In a number of cases 6 women
have used the communication procedure under the first Optional Protocol to the ICCPR
to complain to the Human Rights Committee of the UN about sex discrimination which
breaches the ICCPR.
(C) Commission on the Status of Women: The Commission on the Status of Women
(CSW) is the principal global intergovernmental body exclusively dedicated to the
promotion of gender equality and the empowerment of women. It was established on 21
June 1946 as a part of the Economic and Social Council which falls under the purview of
ICESCR (International Covenant on economic, Social and Cultural Rights), the object
being ‘to promote implementation of the principle that men and women shall have equal
rights’. The ICESCR was considered as the weakest Covenant due to a fear of judicial
intervention in the policies of the executive branch of government and the fact that it
requires state resources and governments to fulfil their socio economic obligations and

3 Women & Human Rights, (2002) Journal N0.4C-2 of Indian Institute of Human
Rights. New Delhi. p. 120
4
The theory of due diligence, equal protection of laws, freedom from torture that upholds the
right of the individual to live with human dignity and security emphasized the theory of
accountability of states to ensure the human rights of its members.
5
The Inter American Court of Human Rights has issued a judgment in the case of Velasquez
Rodriguez, which articulates one of the most significant assertions of State responsibility for
acts by private individuals; this represents an authoritative interpretation of an international
standard on State duty. The opinion of the Court could also be applied, by extension, to
article 2 of the International Covenant on Civil and Political Rights (ICCPR), which requires
States parties to ensure to all individuals the rights recognized in that Covenant. In the same
case, the Inter American Court further reaffirmed that States are "obliged to investigate every
situation involving a violation of the rights protected by [international law]". It discussed the
scope of the duty of States, under article 1 of the American Convention on Human Rights,
"to ensure" the rights within the treaty to all persons within their jurisdiction.
6
The Mauritian Women Case (Communication No. 35/1978); Broeks v. The Netherlands
(Communication No. 172/1984); Avellanalv. Peru (Communication No. 202/1986)
 5

that too it provided only for progressive realization depending on the resources of the
concerned governments.
The CSW had a communications mechanism which allowed it to hear
communications that reveal ‘a consistent pattern of reliably attested injustice and
discriminatory practices meted out against women’. The highlight activity of the CSW
was to take into account forms of violence against women in developing its policy work
rather than at engaging and remedying specific violations of women's rights.7
(D) Convention on the Elimination of All Forms of
Discrimination against Women (CEDAW): The most extensive instrument dealing
exclusively with the rights of women is the Convention on Elimination of All Forms of
Discrimination against Women, adopted by the UN General Assembly in 1979.
Consisting of a preamble and 30 articles, it defines what constitutes discrimination
against women and sets up an agenda for national action to end such discrimination.
The Convention affirmed the principle of equality by requesting the state parties to take
all “appropriate measures, including legislation to ensure the full development and
advancement of women, for the purpose of guaranteeing them the exercise and
enjoyment of human rights and fundamental freedoms on a basis of equality with
men.”8

(E) UN Resolutions on Prevention of Domestic Violence

In 1985 the UN General Assembly passed Resolution 40/36 on domestic
violence, inviting states to ‘take specific action urgently in order to prevent domestic
violence and to render the appropriate assistance to the victims thereof’.9The resolution
was the first of its kind to refer to the public effects of domestic violence. It focuses on
the negative impacts of domestic violence on children, the family and the victim and
invites governments to make broad changes to their justice systems to deal with the
punishment of abusers and the protection of victims.10The member states were held
responsible for preventing domestic violence and assisting victims.
IV. World Conferences on Women
(a) First Conference (Mexico): The first world conference on women was held in
1975 in Mexico City, and declared the period 1976 to 1985 to be the UN Decade of
Women. Activities undertaken during the period provided a foundation for the creation
of an international awakening on violence perpetrated against women both in the public
and private life.
(b) Second Conference (Copenhagen): The Second World Conference on Women
was held in Copenhagen. Domestic violence was explicitly referred to in an official
document of the UN for the first time in this conference.11The conference also

7
Commission on the Status of Women: http://www.unwomen.org/en/csw
8
Convention on the Elimination of All Forms of Discrimination Against Women, Art. 3.
9
1985 UN Resolution (n 76), Art.2.
10
Ibid., Art.7.
11
Report of the World Conference of the United Nations--Decade for Women: Equality,
Development and Peace, Copenhagen, July 1980,U.N. Doc.A/CONF.94/35 (80. IV.3).
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produced a resolution titled “Battered women and Violence in the Family”, which
emphasized that domestic violence was a complex problem and constituted an
intolerable offense to the dignity of human beings.
(c) Third Conference (Nairobi): The Third World Conference on Women which
was held in 1985 in Nairobi mainly focused on violence against women in the home
and recognized it as a serious impediment to the objectives of the Decade of Women. It
called for guidance to be given to the law enforcement authorities to deal with the
victims, sensitively. By the end of the Decade of Women in 1985, the United Nations,
through its various conferences had identified domestic violence as a major obstacle to
development and peace. United Nations General Assembly adopted two resolutions
directly addressing the issue of domestic violence.12
(d) Fourth Conference (Beijing): The Fourth World Conference on women was held
in Beijing, China in 1995. It was a significant step in addressing the issue of domestic
violence. It reaffirmed the conclusions of the Vienna Conference and put women’s
human rights even more firmly on the world agenda. The Beijing Declaration followed
by the Platform for Action (1996-2001)13 identified Domestic violence as a human
rights violation.14Undoubtedly the key strength of Beijing was its representative value.
It acknowledged the long standing failure of governments to promote and protect a
woman’s human right to be free of violence in their homes. Recommended actions
included the strengthening of legal system’s response to all forms of violence against
women including, domestic violence. Areas of concern for another five years were laid
down (2002-2006) fixing the responsibility upon the UN Commission on the Status of
Women to annually report to the UN of the plan of action in each country.

(e) World Conference on Human Rights (Vienna)

The Third World Conference on Human Rights held at Vienna in 1993 provided a
global platform in acknowledging and affirming that the human rights of women as
‘inalienable, integral and indivisible part of human rights’ and thereby expanded the
international human rights agenda to understand gender specific violations. It exhorted
that ‘women’s rights are human rights’ and led to the articulation of the concept of
domestic violence as a human rights violation for the first time.

31
The first resolution on domestic violence, i.e. Resolution 40/36 of November 29,1985, called
for criminological research on the problem of domestic violence and requested the member
states to implement specific measures to address it; The second resolution i.e. Resolution
45/114 of 1990 urged member states to develop and implement policies, measures and
strategies both within and outside the criminal justice system to respond to the problem of
domestic violence.
32
U.N. Doc. A/Conf.177/20 (1995). The document outlined many specific actions
governments, NGO forum and others should take to confront and combat violence against
women. It's preamble expressed its determination to advance the goal of equality,
development and peace for all women everywhere in the interest of humanity.
14
The Platform for Action affirmed that violence against women whether occurring in the
private sphere or in the public sphere, is a violation of human rights.
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(f) The Declaration on the Elimination of Violence against Women

In 1993, there were two major developments that furthered the application of the due
diligence standard within the domestic violence context: the issuance of the Declaration
on the Elimination of Violence Against Women (DEVAW) based largely on the
provisions of General Recommendation 19 by the U.N. General Assembly and the
appointment of a Special Rapporteur on Violence Against Women. In the wake of
Vienna, the General Assembly adopted the UN Declaration on the Elimination of
Violence against Women (DEVAW) in 1993.15

(g) The CEDAW Optional Protocol

The Optional Protocol requires signature and ratification like any other treaty
though it is an addendum. It was adopted by the General Assembly on the 6th October
1999 and entered into force on 22nd December 2000. It enables the CEDAW Committee
to receive communications by or on behalf of individuals who have grievances falling
within the scope of CEDAW.

(h) Reports of the Special Rapporteur on Violence against Women, Its Causes and

Consequences
Thematic Rapporteurs are held as one of the most effective tools within the
United Nations to monitor human rights violations. In 1994, Radhika Coomaraswamy
was appointed by the U.N. Commission on Human Rights as the first Special
Rapporteur on Violence against Women, its causes and consequences. In her
preliminary report, she emphasized that states have a duty under International Human
Rights Law to protect women from violence in their homes.16
V. Protection of Violence under constitutional provisions
Women are one of the identified sections that are vulnerable to discrimination
and hence protected from any form of discrimination. Women are also entitled to
special protection or special rights through legislations, if needed, towards making up
for the historical and social disadvantage suffered by them on the ground of sex alone.
“Half of the Indian population too are women. Women have always been
discriminated against and have suffered and are suffering discrimination in silence. Self-
sacrifice and self -denial are their nobility and fortitude and yet they have been subjected to
all inequities, indignities, inequality and discrimination.”17

15
G.A Res.48/104 (1993). This landmark document was a result of efforts within the United
Nations Commission on the Status of Women (CSW) and the Economic and Social Council
(ECOSOC).
16Preliminary Report of the Special Rapporteur on Violence against Women to the Commission on Human Rights
E/CN.4/1995/42 (1994), paras. 99-107.
17 Madhu Kishwar v. State of Bihar, (1996) 5 S.C.C. 148.
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VI. Rights Protected under the Constitution of India

A coordinated and systematic response needed for the domestic violence in
India. U/s. 498A of the Indian Penal Code is the most significant reforms for protecting
women’s rights. It is also important that civil law remedies to provide protection to
women victims of domestic violence and the Domestic Violence Bill, 2005 is one of
the most significant. The Indian Constitution has ensured equal status to all i.e. not only
between men and men, women and women but also between men and women.18 In the
sphere of right to equality no uniform judicial approach has been followed by the
Indian judiciary in analyzing the legal position of women. In the early cases, the courts
have employed a differential analysis in classifying between men and women as a
group and in upholding legislations that conferred advantageous position to women.
Gradually in cases relating to public employment, discriminatory provisions favourable
to men etc., the differential approach was disregarded and assured a welcoming step in
ensuring gender justice.19
(a) Immoral Traffic (Prevention) Act, 1956:
To prevent the practices of selling and buying of minor girls for immoral
purposes this act was passed. Traffic in human beings i.e. selling and buying of men
and women like goods, for Article 23 of the Constitution of India prohibits such acts,
for immoral purposes.
(A) Protections under Criminal Law
Protections available to the women under criminal laws are as follows:
(a) Female Foeticide - (Causing miscarriage): Offences relating to the birth, death,
exposure etc. of children are made punishable to protect the female foetuses.20 Female
foeticide related examinations are violence against unborn girl child. It is a silent
violence even before the birth of a female child and this practice is used to get the rid of
female foeticide. The tragedy of a girl child begins in the so called institution of the
society, ‘the family’, when the child is in the mother’s womb. Thus it is identified as
crime against life, relating to birth or death of children21.
(b) Female Infanticide: To protect girl children from Female Infanticide the offences
of infanticide are made punishable under IPC. Causing infanticide is offence against
life after birth. Exposure and abandonment of a child under 12 years by parents or
persons having care of a child, with the intention of wholly abandoning it, is an
offences. The punishment is imprisonment for seven years or fine or both22
(c) Rape: Rape is not strictly the offence committed by the family members but there is
a possibility of such occurrences within four walls also.

18
Anjani Kant, (1997), Women and the Law, A.P.H. Publishing Corporation, New
Delhi,p.130
19 AIR v Nergesh Mirza 1987 SC 1829; C.B. Muthamma v. Union of India A.I.R. 1979 S.C. 1868;

Ammini EJv. Union of India A.I.R. 1995 Ker 252,268.

20 Sections 312-318 of IPC.
21 Section 314 IPC.
22 Section 317 IPC.
 9

Sexual intercourse by a man with his own wife who is below the age of 15 years
is considered as marital rape.23
(d) Kidnapping or Abduction for Different Purposes:
Kidnapping or abducting a woman, to compel her to marry any person, against
her will or to force or seduce her to illicit intercourse or knowing it to be likely that she
will be forced or seduced to illicit intercourse. This section prescribes punishment for
any person who abuses his authority to criminally intimidate a woman or induces her to
go from any place with intent that she may be forced or seduced to have illicit
intercourse
(e) Murder:
Murder is the most dangerous offence against the life of any person. It is not
directly concerned with the offences against women but it includes the incidences of
dowry deaths and Sati, thus, the cases of dowry death can be covered under section 302
along with section 304 B and the cases of Sati can be covered under section 302 and
309 of IPC (attempt to commit suicide.
(f) Immoral Traffic in Human Beings:
Traffic in human beings means selling and buying of men and women like goods
and includes immoral traffic in women and children for immoral purposes.24 The law
prohibits the sale and purchase of minors for immoral purposes. These provisions relate
to selling or buying of persons under eighteen years of age for immoral purposes. 25
(g) Indecent Representation of Women: These are the offences against public morals
and decency. The sections of IPC do not expressly include obscenity against women
but indirectly these sections protect women from being annoyed and hence aim at
preventing obscenity. IPC prohibits selling, distributing, importing, printing (for sale or
hire) or publicly exhibiting any obscene book, pamphlet, paper, drawing, painting,
representation or figure or any obscene object what so ever or attempting or offering so
to do. It also prohibits singing, reciting or uttering in public obscene song or words to
the annoyance of others. For the purpose of the world obscene ordinarily is immoral
and is also connected with something, sexual.26
(h) Cruelty and Torture: The Indian Penal Code prohibits a husband or a relative of a
husband of a woman subjecting her to cruelty27, and punishment of imprisonment for a
term which may extend to three years or fine or both.

(j) Mock Marriage:

Mock marriages are strictly prohibited by the penal law which provides that,
cohabitation or sexual intercourse caused by a man deceitfully inducing a woman to
marry with him is punishable with imprisonment for ten years and fine.

23 Section 375 IPC.

24 Raj Bahadur v. Legal remembrance. AIR, 1953. Calcutta, 522.
25 Section 372-373 IPC.
26 Section 292-294 of IPC.
27 Section 498 -A IPC.
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(B) Protections under Special Laws

There are also special legislations to protect the victims of domestic violence.
The following laws are directly or indirectly related to the problem of domestic
violence.
(b) Guardianship And The Wards Act, 1890:
It says that, where a guardian of the minor is to be appointed or where the
questions of custody of the minor is to be decided, the courts take into consideration
various factors which may vary in each particular case, the paramount consideration
being the welfare of the minor.28
(c) The Child Marriage Restraint Act, 1929 (Amendment in 1978):
Girls being considered a liability, are often married off by their families at an early age.
The Child Marriage Restraint Act of 1929, after an amendment in 1978, thus raised
minimum age of marriage of girls to 18 years and for boys to 21 years. The Act
authorizes police officers to investigate cases of child marriage as if they are
cognizable, but does not authorize them to arrest any person without a warrant or an
order of Magistrate. The Act clearly makes ‘Child Marriage’, a criminal offence, which
is punishable by law but it does not invalidate the marriage.
(d) The Hindu Adoptions And Maintenance Act, 1956:
A Hindu male or female is bound, during her/his lifetime, to maintain his/her
minor (under the age of 18 years) children, legitimate/illegitimate or adopted.
Maintenance, u/s 3(b) here includes food, clothing, residence, education and medical
attendance and treatment. In case of unmarried daughter, it includes, 'the reasonable
expenses of an incident to her marriage'29.
(e) The Hindu Minority And Guardianship Act, 1956:
It applies to Buddhists, Sikhs and Jains. It applies to minors i.e. any child
legitimate or illegitimate, who has not attained the age of 18 years of age. 30

(f) Medical Termination Of Pregnancy Act, 1971:

The state has enacted special legislation mainly for the purpose of prevention of
the occurrences of miscarriage. If the termination of pregnancy is carried out to get rid
of female foetuses and if it is hazardous for a woman’s health, is punishable under this
Act.
(g) The Dowry Prohibition Act, 1961, (Amended in 1984):
Realizing the gravity of the situation, the Govt, of India passed the Dowry
Prohibition Act, 1961. This Act prohibits the system of ‘Dowry’ i.e. a property or
valuable security given or agreed to be given either directly or indirectly, by the parents
of either party to a marriage or by any other person to either party to the marriage or to
any other person at or before (or any time after the marriage) (in connection with the
marriage of the said parties but does not include) Dowry Or Mehr in the case of persons
to whom the Muslim personal Law (Shariat) applies.

28
. Section 17 of the Guardianship and the Wards Act, 1890 read with section 13 of the Hindu
Minority and Guardianship Act.
29. Section 20 and Section 3{b) of the Hindu Adoptions and Maintenance Act, 1956.
30. Sec. 4(a)). Section 6 (a), (b) and (c) of The Hindu Minority and Guardianship Act. 1956.
 11

The penalty for demanding dowry is imprisonment for a term which shall not be
less than six months but which may extend to two years and with fine up to
Rs. 10.000.31
(h)The Family Courts Act, 1984:
In cities, where the Family Courts Act, 1984 is implemented, matters relating to
maintenance, custody and access come under the jurisdiction of the Family Court.32
One common legal provision on the issue of maintenance, which is applicable to all
communities, is the Criminal Procedure Code. This provision is applicable to both
legitimate and illegitimate children.33
(i) Juvenile Justice Act, 1986:
This Act is enacted for the protection of neglected, uncontrollable and delinquent
juveniles. The Act considers ‘Cruelty’ to juveniles as a special offence. Putting children
under begging is another form of child labour and also child abuse, which is considered
a serious offence under both IPC and Juvenile Justice Act, 1986, (JJA).
(j) Indecent Representation of Women (Prohibition) Act, 1986:
Any person who contravenes the provisions of the Act shall be punishable on
first conviction with imprisonment of either description for a term which may extend to
2 years and with fine which may extend to Rs.2000. And in the event of second or
subsequent conviction with imprisonment for a term of not less than six months but
which may extend to five years and also with fine not less than Rs. 10,000 but which
may extend to Rs. 1,00.000. The legal position thus effectively affirms and promotes
the principles of equity and equality of women and takes care of their special needs.34
(k) Pre - natal Diagnostic Techniques Act, 1994:
It suggests stringent action by law enforcing bodies and to put check on the
occurrences of female foeticide. One who contravenes any of the provisions of the Act
or rules is made punishable with imprisonment for a term which may extend to three
years or with fine which may extend to Rs. 10,000, and on any subsequent conviction
with imprisonment which may extend to five years and with fine which may extend to
Rs. 50,000.35
VII. Protections Regarding Grounds for Divorce
Hindus, Muslims, Christians and Parsis are governed by their respective
personal laws which list out the grounds for divorce. These are:
(a) Indian Divorce Act, 1939 (Amendment in 2001):
Under the Christian Law while seeking divorce previously a woman had to
prove adultery along with cruelty but the amendment in the law has removed this bar.
The new law also removed the bar of getting divorce confirmed by the High Court.

31 The Dowry Prohibition Act, 1961(Amended in 1984).

32 The Family Courts Act. 1984.
33 Section 125 of the Criminal Procedure Code.
34 . Section 6 of Indecent Representation Of Women (Prohibition) Act, 1986.
35. Section 23 of Pre - natal Diagnostic Techniques Act, 1994.
 12

(b) The Dissolution Of Marriage Act, 1935:

Under this Act a Muslim woman can get divorce if her husband treats her cruelly
which includes both physical and mental cruelty or if he is leading to infamous life or
sells away her property or prevents her from exerting her legal rights over it. If a
woman is tortured or in any way forced to lead an immoral life by her husband, she can
seek divorce from him. A Muslim woman can also get her marriage dissolved if her
husband falsely charges her of adultery.36
(c) The Hindu Marriage Act, 1956:
For the Hindus, it provides for the various grounds on which divorce can be
passed on grounds of adultery and cruelty respectively. 37 When the wife is physically
or mentally abused by a husband who is of incurably unsound mind or suffering from
episodic fits of mental disorder, then this provision provides a clear cut ground of
divorce under section 13 of the Act.
VIII. Protection Regarding the Property Rights of Women

(a) Indian Succession Act, 1925:

Property rights of Christian are governed by Indian Succession Act, 1925. A
widowed Christian woman gets 1/3 share of her husband’s property. The remaining of
the property is divided equally between all his children, (girls as well as boys). This
means that a married daughter will get a share in her father’s property. In case of
diseased daughter her children will get her share. 38
(b) The Hindu Succession Act, 1956:
Under this Act Hindu women have a right in the ancestral property but their
share as against a male member of the family is much less. Coparcenaries consist of all
the male members of the family and only coparcener can ask for partition.
(c) Domestic Violence Act, 2005:
Prior to the Domestic Violence Bill 2001 two important events took place.
These were the drafting of a Bill by National Commission for Women (NCW) in 1994.
This NCW bill was severely criticized by other women’s groups. The other was a bill
by Lawyers Collective in 1999. The main aim of this bill was that any law that
addresses domestic violence must define it in terms of the internationally accepted
definition, prevent it, protect the rights of the women to live in the shared households
and make provisions for the maintenance of the women.
Some of the salient features of the law are (a) the recognition of the second wife
and ‘other’ women’s rights, (b) the recognition that domestic violence can be physical,
psychological sexual, verbal and economic (c) the enunciation of the rights of women
to live in their marital homes, (d) the provision of ad-interim protection orders, (e) the
creation of an official cadre called protection officers and recognition for NGOs as
service providers, and (f) the provision of positive entitlements, maintenance,

36. The Dissolution of Marriage Act, 1935.

37. Section 13 of The Hindu Marriage Act, 1956.
38 . 'Within Four Walls’. (1997), Multiple Action Research Group (ed.) New Delhi, , p 19.
 13

protection from future violence the rights to custody over children- as opposed to mere
penalization of the husband.39
IX. Summary
Domestic violence is a widespread problem throughout the developed and
developing world and makes serious impact on quality of human life and broader
development. Violence against women is the manifestation of a historically unequal
power relationship between men and women. It is a conditioned response and it is not
natural or born of biological determinism. In the olden days violence against women
was a result of the prevalent atmosphere of ignorance and feudalism. Today violence
against women is an uncontrollable phenomenon, which is a direct result of the rapid
urbanization, industrialization and structural adjustment programmes which are
changing the socio-economic scenario of our country.
Domestic violence affects the lives of many women both in the urban and rural
areas in India. It has been found to recur throughout the life cycle of women and has
extensive repercussions. Violence against women takes many forms-physical, sexual,
psychological and economic. These forms of violence are interrelated and affect
women even from before birth till old age. Women who experience violence suffer a
range of health problems and their ability to participate in public life is diminished.
Violence against women harms families and communities across generations and
reinforces other violence prevalent in society. Violence against women also
impoverishes women, their families, communities and nations.
Within the last few decades, gradual improvement in women’s status due to
women’s activism in various parts of the world has helped slowly to increase the
visibility of domestic violence as a social problem. Despite this, violence against
women within the family home, until very recently, has received little attention as
either a social or a public health issue.
There are number of preventive laws but still the Government has not been able
to control the growing incidents of violence against women. Even the provisions of
protective laws for women are sometimes discriminative. The Preamble of the
Constitution contains various goals including ‘the equality of status and opportunity to
all the citizens’. Article 15 (1) prohibits gender discrimination, but in some of the
Indian laws the status of woman is considered to be lower than that of man.

39
Suneetha, A & Nagaraj V. (2005), “Adjudicating (Un) domestic battles”, Economic
and political Weekly, 40(38), 4101,4103.