The Rights of the Deceased: Moral Rights Incidental to Copyright Law
- Vanshika Agrawal
- 2024-04-25
Name: Kruthika Varada
Topic: Domestic Violence in India (Wife side)
Introduction:
“Domestic Violence in India includes all forms of actual abuse or threat to abuse that can be verbal, physical, emotional, sexual, and/or economic in nature. In other words, any abuse that causes harm, injury, and/or endangers the life, safety, health, limb or well-being of the aggrieved person, either mentally or physically, is called Domestic Abuse.”
In India, the crime of Domestic Violence is governed by the Protection of Women from Domestic Violence Act, 2005 and Section 498-A of the IPC. Domestic violence was first recognized as a punishable offence in India in 2005 with the passing of the Protection of Women from Domestic Violence Act (PWDVA),2005 and S.498-A of the IPC deals with acts of cruelty against women committed by their husbands or their relatives. “The PWDVA, a civil law, includes physical, emotional, sexual, verbal, and economic abuse as domestic violence.” “The section in IPC prescribes punishment, including imprisonment for up to three years and a fine. Cruelty, as defined in the Explanation to Section 498-A, encompasses various wilful acts that can drive a woman to contemplate suicide, cause physical or mental harm, or involve harassment to extort money from her relatives.” “In India between 2001 and 2018, the majority of domestic violence cases were filed under ‘cruelty by husband or his relatives’, with the reported rate of this crime increasing by 53% over the 18 years.”
“Domestic Violence is not only physical abuse, but is economic and mental abuse as well. This can further be explained as-
1. Physical Abuse: it is the most visible form of domestic violence. When anyone causes bodily pain, harm or danger to life, limb or health of the person or harms the health or development of the person, it would be physical abuse. Physical abuse include: - Hitting, Beating, Kicking, Biting, slapping, battering, shoving, punching, pulling hair, burning, cutting, pinching
2. Sexual Abuse: when the abuser or wrongdoer coerces or attempts to coerce the victim into having sexual contact or sexual behavior without the victim’s consent. It is attempted to obtain a sexual act, unwanted sexual comments or advances, or acts to traffic, or otherwise directed, against a person’s sexuality using coercion.
For example-
∙ When you force the aggrieved women to have sexual intercourse.
∙ When you force the aggrieved women to look at pornography.
∙ When you indulge in sexual abuse of child.
∙ Sexually demeaning the victim.
3. Verbal and Emotional Abuse: It means psychological abuse. Where deflating the victim’s sense of self-worth and/or self-esteem. Following acts may amount to verbal and emotional abuse-
∙ Insults
∙ Name-calling
∙ Accusations on character
∙ Insults for not having male-child.
∙ Insults for not bringing dowry.
∙ Forcing the aggrieved women to her job.
∙ Forcing the aggrieved women to get married when she does not want to marry.
∙ Preventing the aggrieved women from marrying a person of her own choice.
∙ Forcing the aggrieved women to marry a particular person of your choice.
In emotional abuse victims often suffer from depression, putting them at increased risk of eating disorders, suicide, and drug and alcohol abuse.
4. Economic Abuse or financial abuse: when one partner has control over the other partner’s access to economic resources. Acts may amount to economic abuse-
∙ Not providing money to the woman for maintaining her or her children.
∙ Not providing food, clothes, medicines, to the woman and her children.
∙ Stopping the woman from carrying on her employment.
∙ Disturbing the woman in carrying her employment.
∙ Taking away income from salary, wages, of the woman.
∙ Not allowing the woman to use her salary, wages
∙ Stopping the woman from assessing or using any part of the house.
∙ Not allowing the woman use of clothes, articles or things of general household use.”
Judgements:
Overview:
“V.D. Bhanot v. Savita Bhanot, (2012)
Facts of the case:
Judgement:
The Supreme Court agreed with the reasoning given by the HC and held that:
“In our view, the Delhi High Court has also rightly held that even if a wife, who had shared a household in the past, but was no longer doing so when the Act came into force, would still be entitled to the protection of the Domestic Violence Act, 2005.”
Given the Respondent’s old age, the Court ordered the petitioner to furnish her with an appropriate portion of his house as well as 10,000 rupees per month for her maintenance. The Act’s goal was to safeguard women from domestic violence; hence it should be read in favour of women who are victims of domestic abuse. The Legislature’s intention was to cover women who’ve been victims of domestic abuse prior to the Act’s enactment. This was obvious from the Act’s definitions of the phrases “aggrieved individuals” and “domestic relationship.” The Domestic Violence Act,2005 is a civil remedy, and the criminal penalties given in the Act cannot be committed prior to the Act’s entry into effect, hence enforcing the Act retroactively does not violate Article 20(1) of the Indian Constitution.”
https://indiankanoon.org/doc/322263/
Facts of the Case:
Sunita Malik, the complainant in this instance, was married to Inder Raj Mailk, the respondent. After their marriage, the complainant Sunita was maltreated, starved, and mistreated by her husband and in-laws, especially during festivals, in order to obtain more and more money and possessions.
She was once subjected to severe physical and mental abuse in her marital house to the point of fainting, but no doctor was contacted for a check-up.
If Sunita Malik didn't force her parents to sell their land in Hauz Qazi, her mother and brother-in-law threatened to kill her and abduct her. As a result, it was determined that the complainant, Sunita Mailk, had endured terrible treatment from her husband and in-laws, including physical torture. To coerce Sunita Malik or anyone connected to her into fulfilling an unlawful obligation for both moveable and immovable property, harassment was used.
Judgement:
The Delhi High Court had to determine in this case whether a defendant may be found guilty under dowry Laws. The Court determined that a person is not subject to double jeopardy if they are found guilty under both Section 4 of the Dowry Prohibition Act of 1956 and Section 498A of the IPC. The Court determined that Section 498A, IPC, and Section 4 of the Dowry Prohibition Act are separate laws since Section 4 of the Dowry Prohibition Act only punishes acts of cruelty committed against newlywed women, whereas Section 498A also punishes the mere demand of dowry. This leads one to the conclusion that a person could be charged with a crime under Section 4 of the Dowry Prohibition Act as well as Section 498A of the Indian Penal Code.”
file:///C:/Users/kruth/Downloads/CRLRP539-17-03-08-2017.pdf
“The omission of the husband in neglecting to maintain the wife and living with another woman amounts ‘economic’ and ‘emotional’ abuse and wife is entitled for the protection under the Domestic Violence Act, the Karnataka High Court has held while upholding maintenance awarded to a wife who filed petition for maintenance after 3 decades.
The moot contention raised by the husband in this case was that, for 30 years, his wife had no grievance about his second marriage and it is only after so many years that she filed the petition and, hence, is barred by limitation.
Justice Rathnakala observed that the question of limitation raised by the husband cannot be mechanically accepted on the core point that the wife has filed this petition after decades of separation.
“The obligation of the husband continues throughout the matrimonial life and the husband cannot get away with an excuse that for many years no request was made by the wife for the maintenance amount,” the court said.
Elaborating further, the court said: “Domestic violence” under Section 3 of the Act among others takes into its fold ‘economic abuse’ also. The omission of the husband in neglecting to maintain the aggrieved person, who is at the receiving end, falls within the description of Section 3 of the Act. The very fact that he has led life with another woman during the subsistence of his marriage with his wife and begot children from the second wife amounts to emotional abuse as contemplated by Section 3(a) of the Act, endangering the mental and physical well-being of the aggrieved person. This is another form of domestic violence within the meaning of Section 3(a) of the Act.””
“The Allahabad High Court recently made it clear that the wife cannot be ousted from her matrimonial home on the basis of the summary proceedings under the Senior Citizens Act, 2007.
With this, the Bench of Justice Vivek Chaudhary came to the aid of a widow by setting aside an eviction order passed against her and her son from her in-laws' house.
Essentially, the Court referred to the December 2020 ruling of the Supreme Court in the case of S Vanitha vs. Deputy Commissioner, Bengaluru Urban District [Civil Appeal No. 3822 of 2020], to hold that:
"Senior Citizens, Act, 2007 and PWDV Act, 2005 are to be read simultaneously and a wife cannot be ousted from her matrimonial home on the basis of the summary proceedings under the Senior Citizens Act, 2007".
The petitioner before the Court, Khushboo Shukla, got married to one Gaurav Shukla in February 2013. They gave birth to a son in the year 2015. Initially, she and her husband used to live with her husband's parents, however, they started living separately on the ground floor of another house owned by the parent of the husband.
Unfortunately, in July 2019, the petitioner's husband expired, and thereafter, her in-laws started harassing her, including for dowry for which she filed several F.I.Rs.
She submitted before the Court that she also filed a complaint against them under Section 12 and 13 of the Protection of Women from Domestic Violence Act, 2005 (PWDV Act, 2005), and when the said proceedings were going on, her in-laws sought her eviction from the house she was living in by filing a case under Rule 21 and 22 of the Senior Citizens Rules, 2014. In their case, the impugned eviction order was passed by the Sub-Divisional Magistrate, Sadar, Lucknow against the widow woman and her minor child.
Thereafter, she moved to the High Court wherein initially she was granted interim protection by the High Court, but since the same could not be extended, her belongings were thrown on the road and she was forcefully evicted from the house in September 2021.
Lastly, the Court ordered that the possession of the ground floor of the house be handed over to the petitioner. The Court also directed the private respondents to not disturb or interfere in any manner with the living of the petitioner and her son in the said property.”
References:
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