DEFINITION OF “DOMESTIC VIOLENCE” UNDER PROTECTION OF WOMEN FROM DOMESTIC VIOLENCE ACT, 2005

“Domestic violence” has been defined comprehensively under Section 3 of this Act.

3.Definition of domestic violence: For the purposes of this Act, any act, omission or commission or conduct of the Respondent shall constitute domestic violence in case it-

(a) harms or injures or endangers the health, safety, life, limb or well being, whether mental or physical, of the aggrieved person or tends to do so and includes causing physical abuse, sexual abuse, verbal and emotional abuse and economic abuse; or

(b) harasses, harms, injures or endangers the aggrieved person with a view to coerce her or any other person related to her to meet any unlawful demand for any dowry or other property or valuable security; or

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

(d) otherwise injures or causes harm, whether physical or mental, to the aggrieved person.

Explanation I – For the purposes of this Section-

(i) “physical abuse” means any act or conduct which is of such a nature as to cause bodily pain , harm or danger to life, limb, or health or impair the health or development of the aggrieved person and includes assault, criminal intimidation and criminal force;

(ii) “Sexual abuse” includes any conduct of a sexual nature that abuses, humiliates, degrades, or otherwise violates the dignity of woman;

(iii) “Verbal and emotional abuse” includes-

(a) insults, ridicule, humiliation, name calling, and insults or ridicule specially with regard to not having a child or a male child; and

(b) repeated threats to cause physical pain to any person in whom the aggrieved person is interested.

(iv) “economic abuse” includes –

(a) deprivation of all or any economic or financial resources to which the aggrieved person is entitled under any law or custom whether payable under an order of a court or otherwise or which the aggrieved person requires out of necessity including , but not limited to household necessities for the aggrieved person and her children, if any, stridhan, property, jointly or separately owned by the aggrieved person , payment of rental related to the shared household and maintenance. ;

(b) disposal of household effects, any alienation of assets whether movable or immovable, valuables, shares, securities, bonds and the like or other property, in which the aggrieved person has an interest or is entitled to use by virtue of the domestic relationship or which may be reasonably required by the aggrieved person or her children or her stridhan or any other property jointly or separately held by the aggrieved person, and

(c)Prohibition or restriction to continued access to resources and facilities which the aggrieved person is entitled to use or enjoy by virtue of the domestic relationship including access to the shared household.

Explanation II: For the purpose of determining whether any act, omission, commission, or conduct of the respondent constitutes “domestic violence” under this section, the overall facts and circumstances of the case shall be taken into consideration.

The definition of “domestic violence” is much wider than the definition of cruelty under the Indian Penal Code, 1860. The definition of “domestic violence” covers sexual abuse, economic abuse and emotional abuse which have not been covered under 498A of Indian Penal Code, 1860.

Clause (a) of Section 3 covers under definition of “domestic violence” act, omission, commission or conduct of the “respondent” which harms or injures or endangers the health, safety, life, limb or well being whether mental or physical. Domestic violence includes physical abuse, sexual abuse, verbal and emotional abuse and economic abuse. Physical abuse, sexual abuse, verbal and emotional abuse have been further defined in detail under the Explanation I.

Clause (b) of Section 3 covers under definition of domestic violence act, omission or conduct which harasses, harms, injures, or endanger to the aggrieved person with a view to coerce her or any other person related to her to meet any unlawful demand for any dowry or other property or valuable security.

Clause (c) of Section 3 covers under the definition of “domestic violence” the act, omission, commission or conduct of the respondent which has effect of threatening the aggrieved person or any person related to her by any conduct mentioned in clause (a) and (b).

Clause (d) is concerned with residual acts, omission, commission or conduct, which injures or causes harm, whether physical or mental to the aggrieved person.

From the perusal of the definition of the domestic violence, it emerges that only those incidences of violence have been covered, which a woman suffers within shared household by persons related by consanguinity, marriage or through a relationship in the nature of marriage, adoption or are family members living together as a joint family. The term domestic violence covers inter family affairs which are generally between immediate family members. It can not extend to family members who do not live under a shared household. The term “domestic violence” has to be understood in the context of “domestic relationship” and “shared household” and therefore, the relief sought for are meaningful only against the persons with whom the aggrieved person shares a domestic relationship and a shared household.

PHYSICAL ABUSE

It is a fundamental right of every citizen to enjoy life through his/her limb and faculty. There is widespread physical abuse of women in our society. Physical abuse can be in form of beating, slapping, hitting, biting, kicking, punching, pushing, shoving, causing bodily pain or injury in any other manner . There are various instances wherein husband after consuming alcohol indulges in physical abuse of wife which leads to bodily pain and endangers life, limb or health of women.

Physical abuse includes the following :

• Any act or conduct of the Respondent which causes bodily pain or harm
• Any act or conduct which causes danger to life, limb or health
• Any act or conduct of the Respondent which impairs the health or development of the aggrieved person
• Any act or conduct of the Respondent, which constitute assault, criminal intimidation and criminal force.

Physical abuse includes assault, criminal intimidation and criminal force. Criminal force has been defined under Section 350 of Indian Penal Code, 1860 as under:

350. Criminal Force: Whoever intentionally uses force to any person, without that person’s consent, in order to committing of any offence, or intending by use of such force to cause , or knowing it to be likely that by use of such force he will cause injury, fear or annoyance to the person to whom the force is used, is said to use criminal force to that other.

Assault has been defined under Section 351 of Indian Penal Code as under:

351. Assault- Who ever makes any gesture or any preparation intending or knowing it to be likely that such gestures or preparation will cause any person present to apprehend that he who makes that gesture or preparation is about to use criminal force to that person, is said to commit an assault.

Explanation-Mere words do not amount to an assault. But the words which a person uses may give to his gestures or preparation such a meaning as may make those gestures or preparations amount to an assault.

Criminal Intimidation has been defined under Section 503 of Indian Penal Code as under:

503. Criminal Intimidation: Whoever threatens another with any injury to his person, reputation or property, or to the person or reputation of any one in whom that person is interested, with intent to cause alarm to that person, or to cause that person to do any act which he is not legally bound to do, or to omit to do any act which that person is legally entitled to do, as the means of avoiding the execution of such threat, commits criminal intimidation.

Explanation: A threat to injure the reputation of any deceased person in whom the person threatened is interested, is within this section.

SEXUAL ABUSE

A woman has fundamental right to be treated with dignity. Sexual abuse is one of the least reported form of doemstic violence. Sexual abuse has adverse physical, emotional and psychological effects on victims of domestic violence.

Sexual abuse has been defined as any conduct of a sexual nature that abuses, humiliates, degrades or otherwise violates the dignity of women.

Sexual violence can be in form of forced sexual intercourse, forcing aggrieved person to look at pornography or any other obscene pictures or material, any act of sexual nature to abuse, humiliate or degrade aggrieved person, or which is violative of dignity of aggrieved person or any other unwelcome conduct of sexual nature, child sexual abuse etc.

VERBAL AND EMOTIONAL ABUSE

Verbal and emotional abuse has also been covered under the defintion of domestic violence. Verbal an emotional abuse is another outcome of disadvantageous status of women in society. Married women are often verbally and emotionally abused. There was no remedy regarding this in Indian Penal Code, 1860. It is pertinent to mention here that insulting or ridiculing the aggrieved person with regard to not having a child or male child have been specially included due to unique social and cultural circumstances of the country, wherein a male child is preferred and sometimes a female/aggrieved person is insulted or ridiculed for not having a child.

Verbal and Emotional abuse includes the following:

• Insults, ridicule, humiliation and name calling
• Insults and ridicule specially with regard to not having a child or a male child
• Repeated threats to cause physical pain to any person in whom the aggrieved person is interested.

Verbal abuse can be in form of insults, name calling, accusations on character or conduct of aggrieved person, insults for not having a male child, insults for not bringing dowry, preventing aggrieved or a child in custody of aggrieved person from attending school, college or any educational institution, preventing aggrieved person from taking up a job, forcing aggrieved person to leave job, preventing aggrieved person or child in custody of aggrieved person for leaving the house, preventing aggrieved person from meeting any person in the normal course of events, forcing aggrieved person to get married when the aggrieved person does not want to marry, preventing aggrieved person from marrying a person of her own choice, forcing the aggrieved person to marry a particular person of his/their own choice, threatening the aggrieved person to commit suicide etc.

The definition of verbal and emotional abuse is not precise and words like ridicule and name calling are too general. Even a normal dispute between the aggrieved person and the respondent are sufficient to bring the matter in the Court. This has the potentiality of encouraging frivolous litigations.

ECOMONIC ABUSE

Although there have been reasonable economic empowerment of women in India, as yet majority of women are dependent on family members for their economic needs like food, cloths etc. Because of economic dependency, aggrieved woman are reluctant to report domestic violence incidents to police, court or any other public authority, as they are afraid that their survival will be at stake. Inclusion of economic abuse in the definition of domestic violence is definitely a progressive step as this can provide economic security to aggrieved women and will encourage aggrieved woman to report domestic violence incidents to appropriate authorities.

“Economic abuse” includes the following:

• Deprivation of economic and financial resources which aggrieved person is entitled under law and custom, which is payable either by order of court of otherwise.
• Deprivation of economic and financial resources which the aggrieved person requires out of necessity like household necessities for aggrieved person and her children, stridhan, property, jointly or separately by owned by the aggrieved person, payment of rental related to shared household and maintenance;
• Disposal of household effects
• Alienation of assets whether movable or immovable, valuables, shares, securities, bonds and the like
• Alienation of property in which the aggrieved person has an interest or is entitled to use by virtue of domestic relationship
• Alienation of property which may be reasonable required by the aggrieved person or her children
• Alienation of Stridhan
• Alienation of property jointly or separately held by the aggrieved person.
• Prohibition or restriction to continued access to resources
• Prohibition or restriction to facilities which the aggrieved person is entitled to use or enjoy by virtue of the domestic relationship including access to the shared house hold.

Economic violence can be in form of not providing the aggrieved person money for maintaining the aggrieved person or children, not providing food, cloths, medicine etc. to the aggrieved person or her children, stopping the aggrieved person from carrying on her employment, not allowing the aggrieved person to take up an employment, taking away income from salary, wages etc. of the aggrieved person, not allowing the aggrieved person to use her salary, wages etc, forcing the aggrieved person out of the house the aggrieved person lives in, stopping the aggrieved person from accessing or using any part of the house, not allowing use of clothes, articles or things of general household , not paying rent if staying in a rented accommodation etc.

High Court of Rajasthan in Sabana (Smt.) @ Chand Bai and Anr. vs. Mohd. Talib and Anr; 2014(3)Crimes44(Raj.) has observed on the scope of definition of “domestic violence” as under:

33. Even a fleeting glimpse at Section 3 as reproduced above reflects that “domestic violence” has been widely defined and it covers within its ambit any act, omission or commission or conduct of the respondent resulting in physical, sexual, psychological and economic abuse or threat of such abuse being inflicted upon a woman who is or has been in domestic relationship with him. Undoubtedly, while the physical or sexual abuse caused by the respondent may be time specific, the emotional abuse caused cannot be time specific and its effects may persist even after the actual occurrence of the act of violence. Rather, the physical or sexual abuse may be the cause of subsequent psychological and emotional effects. Similarly, the “economic abuse” caused by depriving the aggrieved person from all or any economic and financial resources at any point of time or prohibiting or restricting the aggrieved person continued access to resources or facilities for which she is entitled will be in lot many cases a persisting domestic violence which cannot be restricted to a specific point in time and on that account the aggrieved person may be entitled to claim the reliefs under various provisions incorporated in the Act, pleading recurring cause of action. It is pertinent to note that as per Explanation I (iv), the deprivation of maintenance payable to the aggrieved person also falls within the definition of “economic abuse” for which the subsisting domestic relationship cannot be considered to be condition precedent for initiating the action inasmuch as even the divorced wife or the woman not in subsisting domestic relationship are also entitled for the maintenance under the law.

The High Court of Patna in Chitranjan Prasad Singh vs. The State of Bihar and Ors.: I(2016)DMC197Pat. has observed on the scope of definition of domestic violence as under:

20. The definition of ’domestic violence‘ suggests that it includes any act or conduct of the respondent, which causes harm, injury or endangers the health, safety, life, limb or to the wellbeing, whether mental or physical, of the aggrieved person, or even if the act or conduct of the respondent tends to do so and the definition further stipulates that such act or conduct includes causing physical, sexual, verbal, emotional or economic abuse. The definition also brings within its ambit, any conduct which harasses, harms, injures or endangers the aggrieved person, in order to coerce her or any other person related to her to meet any unlawful demand for any dowry or other property or valuable security. Even the act of threatening by any such conduct detailed above also gets covered by the definition of “domestic violence”.

High Court of Bombay in XXX and Ors. vs. ABC and Ors. MANU/MH/0882/2016 has observed has observed on the scope of definition of domestic violence as under:

29. Thus, even a cursory glance to this definition of domestic violence is sufficient to know that it covers not only physical abuse, meaning thereby acts constituting danger to life, bodily pain, harm or something injurious to the health and development of a woman, but also covers insults, ridicule, humiliation, name calling, which are termed as verbal and emotional abuse. It also covers economic abuse, that of deprivation of all or any economic or financial resources. Thus, ’Domestic Violence’ which is defined under this Act, is not limited to the physical harassment or physical violence but it also extends much beyond that and it is with an intention to secure her right to live with dignity, which is guaranteed under Article 21 of the Constitution of India, as fundamental right.

As per explanation II, of this section , whether an act, omission and conduct of respondent will constitute domestic violence, overall facts and circumstances shall be taken into consideration. It seems that purpose of this explanation is to prevent undeserving complaints.

The High Court of Judicature of Bombay, in Kishor vs. Shalini; 2010(112)BomLR1398 has observed as under:

14. Perusal of the Explanation – II shows that the Court is required to take into consideration overall facts and circumstances. Explanation – II appears to have been inserted specifically with a view to enable the Court to find out the deserving and undeserving cases, which will be filed under the provisions of the Act of 2005. In the instant case the various factual aspects which I have noted above and in particular regarding the total eclipse for the period of 15 long years and in the absence of any complaint regarding domestic violence at any point of time before filing of the complaint in the recent past thereof or within reasonable period this Court is of the opinion that overall facts and circumstances of this case clearly show that even if the averments in the complaint are taken to be true at their face value, no case of domestic violence can even be inferred by the Court. The respondents could have adopted their remedy available under the other Laws for enhancement of maintenance or accommodation or rental or as the case may be, but certainly in the light of the above discussion the respondents were not entitled to take recourse to the Act of 2005. Consequently, the Court did not get jurisdiction under Section 27 of the Act of 2005 to entertain the complaint which was not maintainable for the above reasons. Both respondents, however, were entitled to take recourse to remedies under other Laws.

DOMESTIC VIOLENCE PRECONDITION FOR RELIEF UNDER ACT

Suffering of domestic violence is precondition for granting of any relief under this Act. The Bombay High Court in Mr. Prakash Kumar Singhee vs. Ms. Amrapali Singhee; 2018(2)Crimes333(Bom.) has observed as under:

12. Thus, in order to claim relief under Section 12 of the Act, which permits an “aggrieved person” to present an application to the magistrate seeking one or more reliefs under the Act, leveling allegations of Domestic Violence. Thus, the reliefs contemplated under the Act are thus available to an aggrieved person who alleges that she is or has been in domestic relationship with the respondent and was subjected to any Act of Domestic Violence by the Respondent. Allegation about the commission of a Domestic Violence is prerequisite for the magistrate or Court of competent jurisdiction to exercise the powers under the Protection of Women from Domestic Violence Act, 2005 and grant any reliefs contemplated under the Act.

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