Vedika Vasandani
Family Matters

Domestic Violence And Divorce – Legal Protections For Victims

By Vedika Vasandani

The following article sheds light over Domestic Violence, which is the part of most of the Indian marriages, is a ground for divorce or not and whether there are any remedies that the victims can opt for in such a scenario. Domestic Violence is one of the major reasons behind the divorce between any two parties. Domestic Violence can be committed in any form be it mental, physical or emotional. It proves to be fatal for a marital bond or even the entire family. Domestic Violence leading to divorce can have a severe negative impact right from the smallest unit of family to the entire society as a whole. Now Domestic Violence in a marriage simply doesn't mean an assault, it can be committed in various other forms such as stalking, threatening, taking away the necessities like food, clothing and shelter, sexual abuse etc.

According to Domestic Violence Act 2005,

Domestic violence means and includes the following : Causing hurt,injury or danger to life, limb, health, safety or wellbeing, whether, mental or physical.

Some components of Domestic Violence –

1. Physical abuse – It mainly includes assault, beating, threatening, hitting, kicking etc

2. Sexual abuse – Any kind of force or assault used in intimate situations. Forceful usage of immoral activities and videos, other types of forceful sexual relationships which is humiliating and degrading for the individual etc.

3. Emotional or Mental Abuse – Making false or immoral statements about the character of the individual, in case of women, forcing her to give birth to a Male child, abusing or making bad statements about ones family members or relatives, being authoritative and not respecting to others decisions etc

4. Economic abuse – forcing an individual to arrange for dowry, not providing basic necessities or amenities such as food, clothing and shelter, taking away the income or the salary of the individual in order to fulfill one's own addictions etc.

On any of these grounds women or men in a marital bond or a marriage can seek divorce by providing sufficient evidence against the accused. So the victims of domestic violence have the right to present themselves in front of the court and seek for remedies. Domestic Violence if presented on any of these grounds in order to obtain divorce from a marital bond can be really helpful in providing strong support or evidence by any of the parties.

Now according to the Divorce Act 1869,

Grounds for dissolution of marriage include

1. Commission of adultery by either of the partners

2. One of the partners has treated the another one with cruelty as to cause a reasonable apprehension in the mind of the petitioner that would be harmful or injurious for the petitioner to live with the respondent

3. A wife may also present a petition for the dissolution of her marriage in the ground that the husband has , since the solemnization of marriage, been guilty of rape, sodomy or bestiality. Etc

The grounds that I’ve mentioned here are mostly related to Domestic Violence which would further lead into dissolution of marriage or what we call it as in a divorce case. When it comes to both the divorce and the domestic violence, the person can command relief by taking into account both the acts, mainly The

Divorce act of 1869 and the Protection from domestic violence act 2005. In such a case there is an existence of both the family court and the criminal court.

There are several remedies or reliefs along with the divorce which are available on the side of victim who has encountered Domestic Violence in a martial bond. Some of them are as follows

1. Power to order Permanent Alimony

This includes gross sum of money or annual sum of money which provides long term financial support to the dependent spouse after divorce. Now this can be decided by the bench based on various factors and can also be changed or modified according to the circumstances.

2. Power to order monthly or weekly payments

In this the court can issue order for monthly or weekly sums for the maintenance and support as the court may think reasonable.

3. Power to make orders as to custody of children

So basically over here if the petitioner feels that the respondent is unfit for taking up the responsibility of children, he/she can demand the custody of children.

4. Right to appropriate legal advice and right to present itself in front of the honorable court for seeking justice

5. Protection order can be issued by the judge in order to provide protection to the victims on an urgent basis, keeping into account the severity of the case.

6. Emergency orders

If the individual feels the need for the judge to make orders as soon as possible due to an emergency (here domestic violence irreparable harm to someone mainly the individual or child) one can file a request for a temporary emergency order.

7. Domestic Violence restraining order

A judge can grant restraining order to protect someone, their children, their property, pets etc. Once the restraining order is passed by the judge police can be called to enforce the order. Some of the types of orders under the same are –

• No contact

• Stay away by certain distance

• Not to harass, stalk, threaten or harm people protected by law • Pay spousal support, if married

• Pay child support, if having children together etc

Especially in contemporary times the cases of divorce are on a rise and domestic violence becomes one of the major reasons for the same. Allegations and the Charges of Domestic Violence can make divorce, which is already a difficult and complicated process, even more challenging. Domestic Violence can affect the outcome of divorce proceedings. Custody of any children, visitation rights with children , Alimony and child or spouse support payments can all be affected by domestic violence in divorce. Not only one needs to prove many grounds for the dissolution of marriage on domestic violence basis but has to go through a very tough phase of their life. There are various remedies or reliefs present for the victims of domestic violence in a marriage which can help them live a life full of safety and dignity. And hence it becomes important for one to know the various aspects revolving around divorce and domestic violence.

Some of the landmark judgments depicting the presence of domestic violence and divorce in a single case.

1. Haimanti Mai vs. State of West Bengal (2019)

The Court mentioned over here the Section 22 which speaks about the compensation and damages for the injuries, including mental torture and emotional distress, caused by the acts of Domestic Violence committed by the respondent. The opposite party’s husband was directed to pay compensation to the petitioner for her mental pain and suffering.

2. Lalita Toppo vs. State of Jharkhand and Anr. (2013)

In this case the Supreme Court has categorically held that maintenance can be claimed under the provisions of Protection of Women from Domestic Violence Act, 2005 even if the claimant is not a legally married wife and so, is eligible for maintenance under section 125 of the Code of Criminal Procedure.

3. Meenavati vs. Senthamarai Selvi (2008)

It was held in this matter that women members of the family cannot be commanded to be removed from the shared household under the pretense of granting an order under Section 19 (1) (b) of the Domestic Violence Act of 2005.

Resources –

1. Domestic Violence Act of 2005 ( bare act)

2. Divorce Act of 1869 ( bare act)

3. http://www.ncw.nic.in ( National Commission for women) 4. www.justia.com