Theme: Family Related Violence

What is “relationship in the nature of marriage” under law on domestic violence?

“Relationship in the nature of marriage” should be those relationships where there is no official registered marriage between the parties. However, the nature of their relationship is that of a marriage because of the stability, continuity and cohabitation as a couple. Indicators of such a relationship in the nature of marriage are the following: – Proof of such a relationship would be the use of a common name, common ration card, same address, etc.

If I leave my house because of domestic violence, will I be able to see my children again?

Yes, you will be able to see your children again. You can ask the Protection Officer to help you file an application for temporary custody for your children. However, the magistrate can only give you a right to keep your children with you temporarily. For you to obtain the right to keep your children with you permanently a case will have to be filed by way of other laws.

What evidence will be used to prove domestic violence that is verbal or emotional on the court?

The court will rely primarily on the testimony of the victim of domestic violence. If there are eyewitness accounts then the court will rely on those testimonies as well. However, since domestic abuse happens primarily at home and it is unlikely that there will be many eyewitness accounts in support of the woman, the court will rely primarily on the victim’s account. The case of domestic abuse need not be proved beyond reasonable doubt. That is, the court only needs to believe that the women were subject to abuse after considering all the facts and circumstances.

My parents-in-law had started assaulting me physically compelling me to starve for days. Lastly on 13.03.2020 they caused me to hospitalization making half-dead. My father lodged FIR u/s 498A but the mother-in-law is still avoiding arrest while my father-in-law, after jail custody of 3 months, is out now. I begged for getting safe entry in my in-law\’s house as my parents are very poor and I have got a child on 14.12.2020. Virtually I am roofless now. My parents-in-laws have driven me out of the share way back on 15.03.2020. High Court has advised me to take resort of other efficacious remedy and I am asking for going to the appropriate court of law for immediate protection.

A woman can file a domestic violence complaint against any person with whom she is/has been in a domestic relationship. This includes:

  • Husband/male partner
  • Relatives of her husband or male partner, including in-laws, aunts, uncles, etc.

To seek immediate protection from domestic violence, you should file an application with the Court with the help of a Protection Officer or a lawyer. The Court will pass a protection order to give you and your child protection from the harasser. The order passed by the Court will be temporary, but for a fixed duration until the Court feels that such an order is not required due to a change in circumstances. You can take the help of your lawyer to extend the duration of the order, if you require it.

Apart from the Court, you can also approach:

What is a Domestic Relationship?

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

In order to seek relief for domestic violence under the law, you need to prove that you have a domestic relationship with the harasser. A domestic relationship means that you are related in any of the following ways with your harasser:

  • Related by blood. For example, any relative, like your uncle, your sister, your father, etc.
  • Related by marriage. For example, your husband, your sister-in law, your brother-in law, etc.
  • Relationship that is similar to the nature of marriage, like your live-in partner.
  • Related by adoption. For example, your step-father, your step-brother, etc.
  • Related by virtue of living together as a joint family. For example, in a joint family, you can complaint against all members of the family such as your father, brother/sister-in-law, uncle/aunt, grandmother/father etc.

To go to Court, you also have to prove that you and the harasser currently live, or have lived in the past, in a shared 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.

What is domestic violence?

Domestic violence refers to violent or abusive behavior in a household that causes harm and may put the health and safety of a woman or any child under her custody in danger. With the help of the law(( Form IV, The Protection of Women from Domestic Violence Rules, 2006.)), you can:

  • Prevent further violence by getting immediate protection. To get immediate protection, you can approach different authorities, such as the police, protection officer, etc.
  • Go to Court for:

Kinds of Domestic Violence 

The kind of violence you face does not always have to be physical. The law also recognizes other kinds of domestic violence such as sexual violence, verbal abuse, emotional or mental abuse and monetary abuse. For example, if your brother-in-law threatens to throw you out of the house every day, this is a form of emotional abuse.

Frequency of Domestic Violence

Even a single act of violence can constitute domestic violence(( Section 3, The Protection of Women from Domestic Violence Act 2005.)). You don’t have to endure domestic violence for a prolonged period of time to go to Court or seek help.

What is sex selection?

Sex selection includes any procedure, technique, test or administration or prescription or provision of anything to ensure or increase the probability that an embryo will be of a particular sex.(( Section 2(o), Pre-conception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994.))

Sex selection is illegal in India and any prenatal diagnostic procedures are only allowed in limited circumstances where a doctor would require the woman’s written consent.

Read this Government handbook by the National Health Systems Resource Centre to understand more on the law on pre-conception and pre-natal diagnostic techniques in India.

What is Dowry?

Dowry is anything which has value (such as cash and property) which is given by the bride’s family to the groom’s family as a condition of marriage.(( Section 2, Dowry Prohibition Act, 1961.))

The law does not stop the exchange of gifts with the fiance’s family during the wedding. The purpose of this law is to prohibit coercion during the gift exchange.

Gifts from the bride’s side should be according to custom and as per financial capacity of her family. For example, in marriages in certain societies, sarees and jewellery are given to women relatives of both the bride and groom, by the other side. This is done as per custom and therefore would not be considered as dowry. There may be other customs of giving certain gifts.

However, it is important to note that the groom’s family cannot force a bride to give the gifts per the custom as this would be demanding dowry. Generally, gifts given should be of a value which do not create an extraordinary financial burden to the person giving them.(( Provision to Section 3, Dowry Prohibition Act, 1961)) For example, if the bride’s father has to take a loan of a significant amount to buy gifts for the groom’s side, then it cannot be said that the gift has been given as per financial capacity of the person. This could be a case of an excessive financial burden on him and could be seen as a case of dowry.

What is a Shared Household ?

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

You live in a shared household with your harasser if you:

Have lived with the harasser 

In order to seek protection and relief, you must live, or have lived at some point of time, with your harasser in the household. However, it is not necessary that you are residing with your husband at the time of filing a complaint for domestic violence(( Sejal Dharmesh Ved v. The State of Maharashtra and Ors 2014 ALL MR (Cri) 636; Rupali Devi v. State of Uttar Pradesh & Ors.  (2019) 5 SCC 384.)), or that you are residing with him when the violence took place.(( Lalita Toppo v. State of Jharkhand & Anr.  2018 (4) RCR (Criminal) 976.)) You just need to have shared a household with the harasser at some point of time.

Have a domestic relationship with the harasser

In order to seek relief and protection from domestic violence, you need to have a domestic relationship with your abuser, in addition to having a shared household with them. For example, if you have lived with your mother-in-law in the same house, and you are being subjected to domestic violence, you can seek relief and protection, as it means that you had a domestic relationship with the harasser and lived with her in a shared household.

However, if you have merely lived in a shared household, but did not share a domestic relationship with the harasser, you cannot file a complaint against domestic violence. For example, if you have a servant who resides in your house, and he beats you up, you cannot file a complaint under this law against him, as you do not have a domestic relationship with him.

Have/do not have a legal share in the house

To claim relief and protection, it does not matter if you have a legal share in the house. This household can be owned/leased by either you, the harasser , or the both of you, and also includes households that belong to the joint family of which the harasser is a part, even if you do not have a legal right in it.

However, if the property is the exclusive, personal property of the parents-in-law, or any other relative of the harasser, you do not have a right to claim any share in that house, as that is not a shared household.(( S.R. Batra v. Taruna Batra (2007) 3 SCC 169.))  However, the Court will ultimately decide whether or not to allow you to reside in a particular house according to the facts of the case, so you may be allowed to reside in a house owned by your mother-in-law in some cases.  See here for more details on residence orders.

Please note that it is not necessary that the violence has taken place only in the house where you reside; it can take place anywhere.

Some states provide handbooks for ASHA workers where you can find more information on forms on violence, where it can happen 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.

What are prenatal diagnostic procedures?

Prenatal diagnostic procedures include any gynaecological, obstetrical or medical procedures such as ultrasonography, taking or removing samples of amniotic fluid, blood or any other tissue or fluid of a person, in order to conduct any prenatal diagnostic tests for sex selection, before or after conception.(( Section 2(i), Pre-conception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994.))

The purpose of these procedures is to obtain material to conduct prenatal diagnostic tests to increase the chances of getting an embryo of a particular sex.

Are Live In Relationships covered under Domestic Violence law?

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

You are in a live-in-relationship if you cohabit, i.e.  share a house with your partner without marrying him or her. It is considered a domestic relationship between an unmarried adult woman and an unmarried adult male who live or, at any point of time lived together in a shared household(( Indra Sarma v. V.K.V. Sarma (2013) 15 SCC 755.)). Unlike a marriage, a live-in relationship is not legally regulated.. For example, you do not have to register the relationship, and  to end a live-in relationship, a divorce is not required, and you may end it in any manner you see fit.

A live-in relationships are considered valid under the law only if it is in the “nature of marriage” i.e. the relationship has some essential characteristics of a marriage, even if it is not legally recognized as a marriage. The courts, while pronouncing judgments on live-in relationships, compare them to marriages to  determine whether the relationship has the characteristics of a regular marriage(( Indra Sarma v. V.K.V. Sarma (2013) 15 SCC 755.)).

Courts, through various cases(( Revanasiddappa v. Mallikarjun (2011) 11 SCC 1.)), have laid down the conditions for live-in relationships to  be considered as relationships in the “nature of marriage”(( Badri Prasad v. Director of Consolidation  (1978) 3 SCC 527.)). These are:

Duration of the Relationship

You and your partner must have voluntarily cohabited for a significant period of time, like months or years in a shared household. A few weeks,a weekend or a one night stand,  does not count as a live-in relationship.

Socialisation in Public

You and your partner should be socialising publicly with friends, relatives and others, as if you and your partner are husband and wife .

Age and Marital Status 

You and your partner should be able to qualify to enter into marriage i.e.neither  of you should have a spouse at the time of entering into the relationship, and both of you should be above the legally valid age of marriage i.e. 18 years.

Sexual Relationship

You and your partner must have a sexual relationship that includes emotional and intimate support2.

Financial Arrangement 

You and your partner have a financial arrangement similar to that of a husband and wife. For example, you have pooled in your resources together or financially support each other, such as through shared bank accounts, assets in joint names, long term business investments, etc.

Domestic Arrangement

If one of you, especially the woman, is entrusted with the responsibility to run the household and do domestic work – cleaning, cooking, upkeep of the house, etc. then this is a domestic arrangement similar to a marriage.

Intention and conduct of the parties

Common intention of the parties as to what their relationship is and their respective roles and responsibilities, primarily determines the nature of that relationship.

Children

Having children is a strong indication that the nature of the relationship is similar to that of a marriage, and that the participants have a long-term orientation towards the relationship.

If the criteria given above are not met, then your relationship will not be a live-in relationship recognized by Courts.

Some states provide handbooks for ASHA workers where you can find more information on forms on violence, where it can happen 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.

Who does the law apply to?

This law prohibits anyone from doing or allowing any sex selection procedures.(( Section 6, Pre-conception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994.))  It regulates every person who could be involved in the process of sex selection, including:

  • The pregnant woman;
  • Her husband;
  • Her relatives;
  • The doctor or medical professional conducting the prenatal diagnostic procedure; and
  • The hospital/medical facility/laboratory where the prenatal diagnostic procedure is conducted.

Exchange/Giving or Taking Dowry

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Any person who:

  • gives or
  • takes dowry, and
  • anyone who helps in the exchange of dowry.

can be punished under the law.

For Example

Raj(groom) and Simran(bride) are getting married. Simran’s father, Amrish gives Rs. 10 lakh and a car as dowry to Raj’s father Anupam.

Scenario 1: When the broker is involved: If the exchange is facilitated through Yash, who is a broker, and Amrish files a complaint, then both Anupam and Yash can be punished under this law.

Scenario 2: When the groom is involved: If Raj is involved in the discussions of demanding dowry, then he will also be prosecuted if a complaint if filed.

Scenario 3: When the complaint is made by someone else: In case the complaint is made by someone else, or it comes to the knowledge of the authorities that an exchange of dowry has taken place, then all three parties i.e. Anupam, Yash and Amrish can be punished. If Raj was also involved in the discussions, then he can also be punished.

The punishment can be jail time for a minimum of 5 years. If the amount is below 15,000 then the fine will be Rs. 15,000. However, if the fine is more than Rs. 15,000 then the fine is equal to the amount of dowry exchanged. For example, if the dowry amount is 30,00,000, then the fine will be Rs. 30,00,000.

What does the law prohibit?

The law prohibits the following activities:

Conducting sex selection

Nobody, including infertility specialists, can conduct sex selection on a woman or a man or on both, by using any tissue, embryo, conceptus, fluid or gametes derived from either or both of them.(( Section 3A, Pre-conception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994.))

The law also prohibits anybody, including a relative or husband of a woman, from seeking or encouraging any sex selection procedures on either or both of them.(( Section 4(5), Pre-conception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994.))

Conducting prenatal diagnostic procedures

No place, including a registered centre, can be used by any person for conducting prenatal diagnostic procedures or tests, except for certain permitted situations.(( Section 4(1),Pre-conception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994.))

The law also prohibits anybody, including a relative or husband of the pregnant woman, from seeking or encouraging the conduct of any prenatal diagnostic procedures or tests on her, except for certain permitted situations.(( Section 4(4),Pre-conception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994.))

Determining the sex of the foetus

Nobody, including a registered centre, can conduct any prenatal diagnostic procedures for determining the sex of a foetus.(( Section 6,Pre-conception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994.))

If a sex determination procedure results in the abortion of a child, it would be a crime of foeticide.

To know more about the law on abortion, please read our explainer.

Communicating the sex of the foetus

Nobody can communicate the sex of the foetus to the pregnant woman, her relatives or any other person, by words, signs or in any other manner.(( Section 5(2), Pre-conception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994.))

Selling machines for sex determination

Nobody can sell any ultrasound machine, imaging machine, scanner, or any other equipment that can detect the sex of a foetus to anyone not registered under the law.(( Section 3B, Pre-conception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994.))

Advertising sex determination or sex selection facilities

Nobody can issue, publish, distribute or communicate anything online or offline about the availability of facilities of prenatal determination of sex, or sex selection, before conception.(( Section 22, Pre-conception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994.))

Complaining about a Demand for Dowry

There is no time limit on when you can file a complaint under this law. You can file a complaint of dowry anytime after marriage. However, you cannot file a complaint after a divorce.

The practice of giving, taking, demanding and advertising dowry is illegal. In case you have had to pay dowry at the time of your wedding, or someone from your family has paid on your behalf, or you personally know of someone who has had to pay dowry as a condition for marriage, any of the following options are available to you:

  • Complaint at the local police station by filing an FIR.
  • Complain to the Dowry Prohibition Officer in your district.
  • Write to the appropriate judicial authority for your case (Metropolitan Magistrate or Judicial Magistrate First Class).
  • Another option is to approach any social welfare institution or recognized welfare organization recognized by the Government and process your complaint through them.

In case you have been coerced into paying dowry, you can still file a complaint against the offenders.

If you were forced to pay dowry and you complained to the police charges of the offence of dowry will not be brought against you.

Signs of domestic violence

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

Domestic violence can be of many different kinds and in many form, such as verbal, sexual, etc. Given below is an indicative list of signs of domestic violence. You can get protection and go to Court if you, or any child in your custody, have faced any of the following acts(( Section 3, The Protection of Women from Domestic Violence Act, 2005; Form IV, The Protection of Women from Domestic Violence Act, 2005.)):

Physical Abuse

  • You are being hurt physically, and your health, physical development or well- being is threatened. For example, beating you, slapping you, hitting you, etc.
  • You are being hurt physically, and it is causing danger to your life.
  • Someone makes any gestures that makes you believe that they are going to physically hurt you. For example, if your husband shakes his fist at you while knowing that it will likely make you believe that he is going to punch you.
  • Verbal or physical threats to harm you or your loved ones, in order to:
  • Scare you or alarm you or make you feel annoyed.
  • Make you do something you don’t legally have to do. For example, if your in-laws threaten to hurt you if you don’t quit your job.
  • Prevent you from doing something you are legally entitled to do. For example, if your husband threatens to hurt you if you want to file a complaint against him.

Verbal and Emotional Abuse 

  • You are insulted, humiliated or ridiculed. For example, if your husband calls you abusive names because you did not bear a male child, or because you did not bring dowry.
  • The harasser threatens to commit suicide. For example, if you state that you want to divorce your husband, and he threatens to commit suicide if you do so.
  • Separating you from your child. For example, if you are separated from your newborn child because your in-laws believe you cannot take care of him.(( Parijat Vinod Kanetkar and Ors. v.  Malika Parijat Kanetkar and Ors.  2017 (2) RCR (Criminal) 792.))
  • Preventing you from taking a job, or forcing you to leave your job.
  • Preventing you, or any child in your custody, from leaving the house.
  • Preventing you from meeting any person, like family members or friends.
  • Forcing you to get married to someone or preventing you from getting married.
  • Threats to cause physical pain to your loved ones.

Economic/Monetary Abuse

  • You are deprived of any financial assets and resources you are entitled to. For example, if you are a widow in a joint family, and are deprived of the resources belonging to the joint family.
  • Restricting access to resources that you normally use by virtue of the relationship you share with the harasser, such as access to any part of the house that you live in.
  • Dispossess you from your assets, or assets held jointly. For example, if your husband sells off the property that both of you own together.
  • Removing your personal items from the household, such as your clothing, utensils, etc.
  • Not allowing you to use items of general household use, such as preventing you from entering the kitchen.
  • Not giving you enough money to maintain yourself/your children, such as money for food, clothes, medicines, etc.
  • Not letting you take up employment, or disturbing you in carrying out your job.
  • Taking away your salary, or not letting you use your salary.
  • Forcing you to leave the house.
  • Not paying rent, if living in a rented accommodation.

Sexual Abuse 

  • Any unwelcome sexual conduct, such as you are forced to have sexual intercourse.
  • You are forced to perform a sexual act that makes you feel humiliated, abused or violated.
  • You are forced to view pornography or any other obscene material.
  • Your child has been sexually abused.

The Courts may recognize other acts of violence/abuse as domestic violence also, depending on your situation. If you are not sure whether you are facing domestic violence, you should get in touch with the Protection Officer of your district, a lawyer or any NGO or service provider who will be able to help you.

When are prenatal diagnostic procedures permitted?

The law allows the use of prenatal diagnostic procedures in certain limited circumstances.

Prenatal diagnostic procedures can be conducted to detect chromosomal abnormalities, genetic metabolic diseases, haemoglobinopathies, sex-linked genetic diseases, congenital anomalies, and other abnormalities or diseases in the foetus.(( Section 4(2), Pre-conception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994.))

To conduct such procedures to detect the above abnormalities, the written consent of the pregnant woman must be taken,(( Rule 10, Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Rules, 1996.)) and at least one of the following conditions(( Section 4(3), Pre-conception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994.)) must also be applicable. To conduct such procedures, it is necessary that:

  • The pregnant woman is older than 35 years;
  • The pregnant woman has had two or more spontaneous abortions or foetal loss;
  • The pregnant woman has been exposed to potentially teratogenic agents such as drugs, radiation, infection or chemicals;
  • The pregnant woman or her spouse has a family history of mental retardation or physical deformities.

If a prenatal diagnostic procedure is conducted after meeting these conditions, the person conducting ultrasonography on the pregnant woman must keep a complete record of it in the clinic as provided under the law.(( Section 4, Pre-conception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994)).

Where can Domestic Violence Happen?

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

An act of domestic violence can happen anywhere. It need not always be confined to the house you are living in.(( Bipin v. Meera D.S. 2017 (1) RCR (Criminal) 479.)) Domestic violence can take place anywhere, like your place of employment or education, your child’s school, the marketplace, etc(( Section 18, The Protection of Women from Domestic Violence Act, 2005.)).

You can file a complaint and with the help of a lawyer, go to Court to file a case against your harasser, regardless of where the domestic violence has happened.

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.