Theme: Crimes & Violence

Custodial Harassment of LGBTQ+ Persons by Police

If you are arrested, you will be in the custody of the police at the police station for 24 hours, till they take you to the nearest Magistrate (Court). They can keep you for 15 more days only if they get the permission of the Magistrate.(( Section 167, CrPC.)) You may face harassment/violence in many ways such as:

  • The police may harass you or intimidate you into admitting a crime that you may not have committed while you are in police custody.(( Section 163 CrPC; Section 330 and Section 503, Indian Penal Code.)) This is a crime under the law for which the police officers may face jail time and a fine.
  • Police officers may physically hurt you while you are in custody. You should complain about the incident to your lawyer who will be able to help you.
  • If the police sexually assault you or rape you, you should file an FIR against the police officers as this is a punishable crime under the law for which the officers will face jail time and a fine.(( Section 376 (2), 376 B and D, India Penal Code, 1860.)) You will have to file an FIR with the help of Section 376(2), 376 B of the Indian Penal Code, 1860.

During the time you are in the custody of the police, to prevent any form of harassment or if you face any harassment by the police, these are some of the steps you can take :

Ask for a lawyer

You have a right to request for a lawyer from the time you are arrested, and to prevent any violence while you are in custody, it would be helpful to have a lawyer present with you.

Complain to the SP of the police station

Write a written complaint to the Superintendent of Police (SP) of the police who may look into the matter. The SP may look into the matter.

Complain to the Magistrate 

Since the police officer has to mandatory take you to a Magistrate within 24 hours of your arrest, you can file a ‘private complaint’ with the help of your lawyer directly with the Magistrate. You can give details of the harassment and violence you faced while you were in police custody.

Who can You Complain against for Domestic Violence?

You can complain against both men and women for domestic violence. You can complain against the following:

  • Your family: You can complain about your family, if they are subjecting you to domestic violence, in the following circumstances:
    • If you are related to the harasser by blood, you can file a case against them. For example, your father, brother, etc.
    • If you are related to your harasser by marriage, you can file a case against them, such as your in-laws, husband, etc.
    • If you are related to your harasser by virtue of living together as a joint family, you can file a case against them. For example, your grandmother, uncle, adopted brother, etc. However, you can complain only against those who were complicit in the violence.(( Ashish Dixit v. State of UP & Anr. (2013) 4 SCC 176.)) For example, if you live in a joint family with ten people, and only your mother-in-law and husband subjected you to violence, you can complain only against them.
  • Your live-in partner: If your live-in partner hurts or abuses you, you can file a complaint against him.
  • Minors: You can complain against a minor who is subjecting you to domestic violence.(( Hiral P. Harsora v. Kusum Narottamdas Harsora (2016) 10 SCC 165.)) For example, if a 16 year old boy in your family is physically hurting you, then you can file a complaint for domestic violence.

While going to Court, keep in mind that you must have been subjected to domestic violence by someone with whom you have shared not only a domestic relationship but also shared a household.

Some states provide handbooks for ASHA workers where you can find more information on forms on violence and how to file a complaint to seek protection against domestic violence. For example, see this handbook published for ASHA in Chattisgarh, Delhi, Jharkhand, Madhya Pradesh and Uttarakhand.

False Reports or Complaints for Child Sexual Abuse

Portfolio Keyphrase: False reports or complaints about child sexual abuse

Tags: Abuse, Violence, Crime, Children, Explainer

[Trigger Warning: The following content contains information on sexual and physical violence which some readers may find disturbing.]

It is illegal to falsely complain about child sexual abuse or provide false information against another person alleging that they have sexually abused a child if they haven’t done so. The punishment for doing this is  jail time of one year and/or a fine(( Section 22(3), The Protection of Children from Sexual Offences Act, 2012.)).

If the false complaint or false information is made with the intention to humiliate, extort, threaten, blackmail, or defame someone, the complainant can be punished with either a jail time of 6 months and/or a fine(( Section 22(1), The Protection of Children from Sexual Offences Act, 2012.)).

However, if a child makes a false complaint or provides false information, the child cannot be punished(( Section 22(2), The Protection of Children from Sexual Offences Act, 2012.)).

Getting Bail by LGBTQ+ Persons

When you are arrested, you have the right to apply for bail regardless of your gender identity or your sexual orientation. This right is dependent on the kind of crime you have been arrested for:

In Cases of Bailable Crimes

If the kind of crime you are arrested for is a bailable offence, then you have a right to apply for bail to the Court and the same will be granted to you.

In Cases of Non-Bailable Crimes

In cases of non-bailable offences, bail is granted to you upon the discretion of the Court, and it will be given to you only in specific circumstances. In such cases, the Court may ask you for a higher bail amount as bond.

What is the Time Limit to Complain against Domestic Violence?

There is no specific time limit(( Vikas and Ors. v. Usha Rani and Ors. 2018 (3) RCR (Criminal) 307.)) for filing a complaint against domestic violence, but you must be able to prove that you were in a domestic relationship with the harasser at the time the violence took place. However, if there is a delay in complaining against the domestic violence that you have faced, you might be asked to explain the reasons behind the delay.

Given below are some specific situations where you may file a complaint against domestic violence:

Complaining for Acts before 2005

Though the law(( V.D.Bhanot v. Savita Bhanot (2012) 3 SCC 183.)) on domestic violence came into force in 2005, the law allows you to file an application for relief and/or protection even against any domestic violence that happened before 2005. If you are a woman who faced violence before 2005,  you would still be entitled to protection under the law and you can approach the Court to file a case. For example, if a woman, Sita, faced domestic violence from her mother-in-law in 2001, she would still be eligible to go to Court to file a domestic violence case , even if the law on domestic violence came into force after she had already experienced domestic violence.

Complain after Divorce

You can file a complaint against domestic violence even if you are already divorced(( Smt.Sabana @ Chand Bai & Anr vs Mohd.Talib Ali & Anr 2014 (2) RCR (Criminal) 293.)). For example, Seema got married in 2012 and for two years she faced physical violence from her husband. She divorced her husband in 2014. Seema has a right to file a domestic violence case after 2014 against her ex-husband for hurting her during the two years she was married to him. This is because at the time she faced domestic violence, she was in a domestic relationship with the harasser i.e. her husband.

Helplines for LGBTQ+ Persons

There are several government helplines, which help by not only giving information, but supporting you through legal processes and putting you in touch with authorities. The following list provides the contact details of the national helplines across India, for the categories mentioned below:

For Violence and Harassment

If you have faced any harassment or violence or you know someone who has, you can contact the following helplines:

Police 

Anyone regardless of their gender or sexual orientation can call this helpline. You can call 100 to seek immediate help from the police. After describing your location, a police unit will be sent to you for further assistance.

National Commission for Women, Police Helpline: 

You can call this helpline only if you are a woman or trans woman. You can complain about any kind of violence you have faced including sexual offences, domestic violence etc. These are the steps you should take:

Step 1: Call 1091

Step 2: Describe the crime in detail

Step 3: Give your location and contact number

The police will then be sent to your location to assist you and stop the harasser. If you are a trans woman, it is better to take the assistance of NGOs or lawyers, so as to prevent any harassment from police officers themselves while filing an FIR.

Missing Persons and Kidnapping

Deputy Commissioner Of Police (Missing Persons):

This helpline helps track missing persons regardless of gender. You can take the following steps:

Step 1: Call 1094.

Step 2: They will ask for the phone number of the missing person.

Step 3: A phone number search is done on ZIPNET (Zonal Integrated Police Network) where they will trace the location of the missing person and contact the police.

Step 4: If they cannot locate the missing person, they will reach out to the police station to continue the search on the ground level.

What is a Domestic Incident Report?

[Trigger Warning: The following content contains information on domestic violence which some readers may find disturbing.]

Domestic incident report (DIR)((Section 2(e), The Protection of Women from Domestic Violence Act, 2005.)) is a report that is made on receiving a complaint of domestic violence from a woman. This report can be made by either a Protection Officer or a service provider. The DIR will contain details such as your name, age, details of the harasser, details of the incident of violence that happened, etc. To file a DIR, you can approach any of the following officers/persons:

Protection Officer

A protection officer upon receiving a complaint has to fill the DIR and inform you of your legal rights under the law. You will also get a free copy of the DIR to keep with you. Afterwards, the protection officer will send the Domestic Incident Report and an application to the Court to start a case. The DIR will also be forwarded to the police station or Service Providers.

Service Provider

A service provider upon receiving a complaint has to fill the DIR and put you in touch with a Protection Officer or send it to the Court(( Section 10 (2) (a), The Protection of Women from Domestic Violence Act, 2005.)). If you have been injured, a service provider will help you get a medical examination done and the report will be forwarded to the Protection Officer or police station. They also help you get in touch with shelter homes where you can stay away from the harasser.

Police Officers

If you cannot find a Protection Officer or a service provider, you can approach the nearest police station to file a complaint. The officers will put you in touch with a Protection Officer and give you the option of filing the following:

  • FIR (First Information Report)

By filing a First Information Report, a criminal case can be initiated against the harasser. The police will give you the option of filing an FIR at any point if you want to pursue a criminal complaint(( Form I(8), Section 2(e), The Protection of Women from Domestic Violence Act, 2005.)).

  • DIR (Domestic Incident Report)

If you do not want to initiate criminal proceedings by filing an FIR then the police officer has to make a daily diary entry about the domestic violence you faced, and enter details per the DIR forwarded to the police by the PO. If such information is not available, the police will put you in touch with a Protection Officer to file a DIR and get this information for the daily diary.

Person-in-charge of Medical Facilities 

If you have approached a medical facility and have not yet filed a DIR, the person-in-charge of the medical facility must file a DIR, and forward it to the Protection Officer.

Getting Help and Support for LGBTQ+ Persons

It is important to get help and support to protect yourself while complaining about any violence, discrimination or harassment you have faced. Some of the people you can approach are:

Legal Support

  • Approach a lawyer to help you with the complaint processes or if you have to go to Court.  If you cannot afford a lawyer, you can approach the District Legal Service Authority in your district for free legal aid. For example, Delhi Legal Service Authority.
  • If you cannot find a lawyer, then approach NGOs who will help you through the process of filing an FIR and put you in touch with lawyers.

Protection and Shelter

You can approach any NGO, civil society organization or institution that works for LGBTQ+ rights. They may be able to help you by:

  • Assisting you in case you are in trouble or if you need immediate help
  • Providing shelter, employment opportunities and counseling to help you overcome the problems you are facing.

Support while obtaining ID Proof

You can approach the MLA/MP of your area/constituency and ask for help. In many cases, they will direct authorities to help you out in the area you are facing trouble with.

Employment-Related Support

  • Approach the registered Trade Union in your office. They will be able to help you with your grievances at your workplace.

You can also approach NGOs or institutions who work on LGBTQ+ Rights who will be able to provide employment opportunities or put you in touch with people who can.

What is the Role of a Protection Officer?

[Trigger Warning: The following content contains information on domestic violence which some readers may find disturbing.]

If you decide to file a domestic violence complaint, a Protection Officer (PO) is generally the first point of contact for you. Anyone, including someone you know, can visit, call, or write to a Protection officer in your district or an area nearby to complain against the violence and seek protection. To find a PO, you can:

  • Go to the nearest police station and ask them to put you in touch with a PO.
  • Call or go to the Department of Women and Child Development in your district.
  • Approach the National/State Women Commission. A state-by-state list of Protection Officers is available here.
  • Approach an NGO or a service provider.

Your complaint will be written down by the PO and you can ask for a free copy of this complaint to keep with you. Protection officers will help you(( Section 9, The Protection of Women from Domestic Violence Act, 2005.)):

File a complaint

The PO will help you file a Domestic Incident Report 2(DIR) which is a special report for cases of domestic violence which will have all the details of the harasser(s), the details of the victims, etc. They will also help you file a direct complaint with the Court and assist you in getting legal support.

Give Information to the police

The PO will forward a copy of the DIR as well as a copy of the medical report, if you were medically examined, to the police station located within the area where you faced violence. After this, the police will look into the matter and stop the harasser(s) from committing any acts of violence towards you(( Section 5, The Protection of Women from Domestic Violence Act, 2005.)).

Provide immediate protection and support

The PO will help:

  • Prepare a safety plan for you which will specify the measures required for your safety, and the orders you are seeking from the Court.
  • Get you and/or your child medical aid from a medical facility in case you have any injuries.
  • Put you in touch with service providers who will assist you with legal support, counseling, medical facilities, shelter homes, etc.

Inform you of your legal rights

The PO will discuss with you the different kinds of domestic violence with you to understand what you have been through. This will be recorded in the DIR. Afterwards, the PO will inform you of the rights and remedies you are entitled to under the law after filing a complaint.

Support you through Court processes

Protection Officers will:

  • Help you gain access to free legal aid through the District Legal Aid Services Authority.
  • Ensure that you and your children are not victimised or pressurised during the Court proceedings by the harasser.