Category Archives: Domestic Violence

The Validity of Advance Sexual Consent

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The validity of “advance consent” is an issue which is being determined by the Canadian judiciary. Advance consent has been held to be invalid only in recent times. Throughout history, advance consent was recognised by both law and society, the most visible example of which was the “advance consent” which a wife granted her husband during the wedding ceremony, and which lasted till death (or, in more recent times, divorce) did them apart.

What is interesting though is that, this time around, the issue of advance consent has not arisen in the context of orthodox sexual practices but with reference to practices which many people would find anything but orthodox. The Canadian courts have been called upon to determine whether a woman who allegedly consented in advance to erotic strangulation also consented to being sodomised while unconscious.

There are several pertinent factors. Firstly, the woman’s story was not always entirely consistent. Secondly, there appears to have been a history of domestic violence involving the woman and her partner, and as such, the validity of any consent she gave, assuming that she did in fact give consent, may not be beyond question. Thirdly, even assuming that she did give consent for one act, it is unclear how consent for one specific act could metamorphose into consent for other acts as well. Finally, considering that consent in these circumstances cannot truly be considered to have been granted if it does not also include an opportunity to withdraw consent, it is unclear whether it would be possible to give consent at all for an act such as strangulation – after all when one is being strangled or is unconscious, the withdrawal of consent is not an option.

Clearly, therefore, to voluntarily engage in acts which leave one incapacitated would require the grant of advance consent. However, blanket recognition of advance consent presents problems in itself. There are, of course, the “standard” issues which the recognition of advance consent has presented throughout history such as the non-recognition of acts such as marital rape as crimes. In addition to this, there are also echoes of that historical legacy which are heard today. This could be in the form of “non-consensual consent” where women consent in advance to an activity, and consent to having their partners force them to engage in it later even if they don’t want to do so at that later time. Alternatively, it could be in the form of pseudo-legal documents such as “abuse contracts” where women consent in advance to being abused.

There is little doubt that there are circumstances in which advance consent runs contrary to our current socio-legal ethos. However, if advance consent were to be considered to be entirely void, it would make it impossible to perform certain acts within consensual relationships, and could, in effect, regulate relationships between consenting adults – which, too, in today’s socio-legal and cultural climate would, inter alia, be considered to be an unacceptable violation of the right to privacy. As such, while the issue may seem to be relatively clear-cut at first glance, a closer look reveals that it is anything but clear. The recognition of advance consent could make women vulnerable to abuse. On the other hand, non-recognition of advance consent could make illegal certain acts between consenting adults which are of an essentially private nature, and in which the law would not generally interfere.

One solution would seem to be draw out lists of circumstances in which advance consent could and could not be recognised. However, this too presents its own problems: primarily, how would one determine to which set a particular case would belong. For example, if advance consent was given within a relationship marred by domestic violence, could it be considered to be “real” and, consequently, valid? Or would the possibility that the advance consent was not voluntary make it void? It is unclear whether there is any way in which to differentiate between circumstances in which advance consent should or should not be recognised. Universal recognition could, however, adversely affect the safety of many, and universal non-recognition could adversely affect the freedom of some. Whether safety should supersede freedom, or freedom should supersede safety, is ultimately a value judgment which would manifest itself as a matter of policy.

(This post is by Nandita Saikia and was first published at LawMatters.in.)

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The Definition of Domestic Violence under the DV Act

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Women are an integral part of Indian society but suffer from the violence in the family which doesn’t seem to be substantially curbed by either education or awareness. In fact, Domestic Violence is one of the few phenomena which seems to have cut across all the cultural, socio-economic, educational, ethnic and religious barriers which usually divide society, and, absurdly enough, it seems to increase with a rise in a woman’s education and also prevails among the elite — such as they are.

Before the 2005 Act was passed, there had been attempts by the Government to help protect women (such as by introduction of The Protection from Domestic Violence Bill, 2002 was supposed to do). The Bill was, however, widely criticized as was the one which came before it and was not passed by Parliament.

One of the problems with the Bill was that it didn’t define what Domestic Violence clearly. It spoke of habitually assaulting a woman and no one seemed to know exactly how frequently a woman had to be assaulted for the assault to be habitual.

The 2005 Bill, however, defines domestic violence quite comprehensively. Also, the definition under the Act is not exhaustive.

Under Section 3 of the Domestic Violence Act, 2005, any of several possible perpetrators of domestic violence can be dealt with. These perpetrators are referred to as ‘the respondent’ in the statute and have been defined as any adult male person who is or has been, in a domestic relationship with the aggrieved woman and against whom she has sought any relief under the Act. The perpetrator may be the woman’s husband or a man with whom she shares a relationship in the nature of a marriage.

‘Woman’ means any woman who is or has been, in a domestic relationship with the respondent and who alleges to have been subjected to any act of domestic violence by the respondent and a ‘domestic relationship’ means a relationship between two persons who live or have, at any point of time, lived together in a shared household, when they are related by consanguinity, marriage or through a relationship in the nature of marriage, adoption or are family members living together as a joint family.

A ‘child’ means any person below the age of eighteen years and includes any adopted, step or foster child.

Any act, omission or commission or conduct of the respondent constitutes domestic violence if it:

  • harms or injures or endangers the health, safety, life, limb or well-being, whether mental or physical, of the woman or tends to do so and includes causing physical abuse, sexual abuse, verbal and emotional abuse and economic abuse
  • harasses, harms, injures or endangers the woman 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
  • has the effect of threatening the woman or any person related to her by any conduct mentioned above
  • otherwise injures or causes harm, whether physical or mental, to the woman.

Explanations

1. ‘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 woman and includes assault, criminal intimidation and criminal force.

2. ‘Sexual Abuse‘ includes any conduct of a sexual nature that abuses, humiliates, degrades or otherwise violates the dignity of woman.

3. ‘Verbal and Emotional Abuse‘ includes:

  • insults, ridicule, humiliation, name calling and insults or 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 woman is interested.

4. ‘Economic Abuse‘ includes:

  • deprivation of all or any economic or financial resources to which the woman is entitled under any law or custom whether payable under an order of a Court or otherwise or which the woman requires out of necessity including, but not limited to, household necessities for the woman and her children, if any, Stridhan, property, jointly or separately owned by the woman, payment of rental related to the shared household and maintenance
  • 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 woman has an interest or is entitled to use by virtue of the domestic relationship or which may be reasonably required by the woman or her children or her Stridhan or any other property jointly or separately held by the woman
  • prohibition or restriction to continued access to resources or facilities which the woman is entitled to use or enjoy by virtue of the domestic relationship including access to the shared household.

‘Shared household’ means a household where the person aggrieved lives or at any stage has lived in a domestic relationship either singly or along with the respondent and includes such a household whether owned or tenanted either jointly by the woman and the respondent or owned or tenanted by either of them in respect of which either the woman or the respondent or both jointly or singly have any right, title, interest or equity and includes such a household which may belong to the joint family of which the respondent is a member, irrespective of whether the respondent or the woman has any right, title or interest in the shared household.

To determine whether any act, omission, commission or conduct of the respondent constitutes ‘domestic violence’ under the Act, the overall facts and circumstances of the case shall be taken into consideration.

Defining Dowry: Not a Gift to a Baby

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The Dowry Prohibition Act, 1961 says, “Dowry means any property or valuable security given or agreed to be given either directly or indirectly by one party to a marriage to the other party to the marriage; or by the parents of either party to a marriage or by any other person, to either party to the marriage or to any other person, at or before or any time after the marriage, in connection with the marriage of the said parties but does not include dower or mahr in the case of persons to whom the Muslim Personal Law (Shariat) applies. The expression ‘valuable security’ has the same meaning as in section 30 of the Indian Penal Code.”

In yet another case defining what dowry is, the Supreme Court has held that demand for presents to a child do not fall within the ambit of dowry and that mere evidence that a woman has been subjected to harassment does not in itself make out a case of dowry death as defined by Section 304B of the Indian Penal Code which says:

(1) Where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for dowry, such death shall be called ‘dowry death’, and such husband or relative shall be deemed to have caused her death.
(2) Whoever commits dowry death shall be punished with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life.

In this case, a woman named Jagadeshwari committed suicide by setting herself on fire after her husband, Narayanamurthy from Karnataka, and his parents, Kannappa and Shivabhushanamma, demanded a gold ring and silverware for on the occasion of her new-born child’s thread-changing ceremony which was to be held at her parents’ home.

Jagadeshwari’s family could not afford to give the child a ring and so, Narayanamurthy refused to take part in the ceremony.

The marriage of the couple had taken place in 1989 and was harassed by her husband and in laws for not having brought enough dowry right from the time of the wedding till the time of her death — she committed suicide on November 11, 1990.

After her death, both her husband and her in-laws were charged with offences under Sections 498A and 304B of the Indian Penal Code and Sections 3, 4 and 6 of the Dowry Prohibition Act, 1961.

Section 498A of the Indian Penal Code says:

Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine.
Explanation: For the purposes of this section, ‘cruelty’ means- (a) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or (b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.

And Sections 3, 4 and 6 of the Dowry Prohibition Act, 1961 deal with the penalties for taking and demanding dowry and say that dowry to be for the benefit of the wife or her heirs.

The father-in-law died while the trial was underway and both the husband and mother-in-law were acquitted by the Trial Court for lack of evidence.

The Karnataka High Court subsequently convicted her husband under Section 304B of the Indian Penal Code on appeal and sentenced him to seven years of rigorous imprisonment. It also convicted him under Section 498A of the Code and fined him 5,000 INR. However, it upheld his acquittal under Sections 3, 4 and 6 of the Dowry Prohibition Act, 1961. Also, it did not find Shivabhushanamma guilty of any offence.

The Supreme Court upheld the acquittal of the mother-in-law also acquitted Narayanamurthy saying that although he had been given silverware at the ceremony, “such gifts are not enveloped within the ambit of dowry”.

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The Burden of Proof in Dowry Deaths

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In a dowry death case, the husband was acquitted because he was not present in the village at the time of his wife’s death. His parents were, however, convicted. The Rajasthan High Court set aside their conviction since the State did not appeal against the husband’s acquittal. The Supreme Court has held that the State’s failure to appeal against the husband’s acquittal does automatically mean that the prosecution failed to prove charges of dowry death under the Indian Penal Code.

The case contains a detailed discussion of where the burden of proof lies in cases of dowry deaths:

“In our considered view, this was a fit case for invoking Section 106 of the Evidence Act, which lays down that when any fact is especially within the knowledge of the any person, the burden of proving that fact is upon him. In Ram Gulam Chaudhary vs. State of Bihar [2001 (8) SCC 311] this Court considered the applicability of Section 106 of the Evidence Act in a case somewhat similar to the present one. Even though Section 106 of the Evidence Act may not be intended to relieve the prosecution of its burden to prove the guilt of the accused beyond reasonable doubt, but the section would apply to cases like the present, where the prosecution has succeeded in proving facts from which a reasonable inference can be drawn regarding death. The accused by virtue of their special knowledge must offer an explanation which might lead the court to draw a different inference.

In Trimukh Maroti Kirkan vs. State of Maharashtra [2006 (1) SCC 681], a two judge-bench of which one of us (G.P.Mathur,J.) was a member, considered the applicability of Section 106 of the Evidence Act and observed:

“The demand for dowry or money from the parents of the bride has shown a phenomenal increase in the last few years. Cases are frequently coming before the courts, where the husband or in-laws have gone to the extent of killing the bride if the demand is not met. These crimes are generally committed in complete secrecy inside the house and it becomes very difficult for the prosecution to lead evidence. No member of the family, even if he is a witness of the crime, would come forward to depose against another family member. The neighbours, whose evidence may be of some assistance, are generally reluctant to depose in court as they want to keep aloof and do not want to antagonise a neighbourhood family. The parents or other family members of the bride being away from the scene of commission of crime are not in a position to give direct evidence which may inculpate the real accused except regarding the demand of money or dowry and harassment caused to the bride. But, it does not mean that a crime committed in secrecy or inside the houses should go unpunished.”

If an offence takes place inside the privacy of a house and in such circumstances where the assailants have all the opportunity to plan and commit the offence at the time and in circumstances of their choice, it will be extremely difficult for the prosecution to lead evidence to establish the guilt of the accused if the strict principle of circumstantial evidence, as noticed above, is insisted upon by the courts. A judge does not preside over a criminal trial merely to see that no innocent man is punished. A judge also presides to see that a guilty man does not escape. Both are public duties. (See Stirland v. Director of Public Prosecutions [1944 AC 315] quoted with approval by Arijit Pasayat, J. in State of Punjab v. Karnail Singh [2003 (11) SCC 271]. The law does not enjoin a duty on the prosecution to lead evidence of such character which is almost impossible to be led or at any rate extremely difficult to be led. The duty on the prosecution is to lead such evidence which it is capable of leading, having regard to the facts and circumstances of the case.

Where an offence like murder is committed in secrecy inside a house, the initial burden to establish the case would undoubtedly be upon the prosecution, but the nature and amount of evidence to be led by it to establish the charge cannot be of the same degree as is required in other cases of circumstantial evidence. The burden would be of a comparatively lighter character. In view of Section 106 of the Evidence Act there will be a corresponding burden on the inmates of the house to give a cogent explanation as to how the crime was committed. The inmates of the house cannot get away by simply keeping quiet and offering no explanation on the supposed premise that the burden to establish its case lies entirely upon the prosecution and there is no duty at all on an accused to offer any explanation.

Similar view has been expressed in State of Punjab vs. Karnail Singh [2003 (11) SCC 271], State of Rajasthan vs. Kashi Ram [2006 (12) SCC 254], Raj Kumar Prasad Tamakar vs. State of Bihar [2007 (1) SCR 13].

We are sure, if the learned Single Judge of the High Court had adverted to Section 106 of the Evidence Act and correctly applied the principles of law, he would not have committed the grave error of acquitting the respondent.”

CASE NO.: Appeal (crl.) 1133 of 2000

State of Rajasthan v. Jaggu Ram

DATE OF JUDGMENT: 04/01/2008
BENCH: G.P. Mathur & G.S. Singhvi
JUDGMENT: G.S. Singhvi, J.

IMBRA

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Here’s an article about immigrant women which is also a case of plagiarism that has been called out by Sylvia in a way I’ve never seen before. Apparently, the author of the article appropriated almost all her ideas from someone else.

“If you ever want to despair of the human condition, Google the term “IMBRA” — the vast majority of the results returned are authored by men outraged at these entirely reasonable measures that keep men from beating their immigrant wives and using green cards as leverage to perpetuate the violence. Strangely, few of these websites argue that men should be given the direct right to beat women, but it’s hard to imagine what other worldview they could be operating under, when they think that it should be perfectly legal for a man to threaten his wife with deportation if she leaves him after a round of beating. If you are under the incorrect impression that sexism is dead and feminism isn’t needed anymore, I recommend listening to the howls of men who think the government owes them the right to treat immigrant women like a population available for their punching bag and sexual assault needs. That goes double for you if you’ve ever sneered at the term “intersections of oppression,” because I can’t think of a better example myself.“

Sylvia says that all original ideas in this excerpt from an article called ‘Sexual Abuse Fueled by Abusive Immigration Language‘ remain unlinked. She’s given the same treatment to the whole article in her blog.

I’d never heard of IMBRA so I googled the term. It turns out that it’s the ‘International Marriage Brokers Regulation Act’ — a federal Act which became law along with VAWA in 2006 and is designed to protect non-American women from American men by requiring men’s backgrounds to be disclosed to women whom they approach through paid international marriage brokers.

Source: Problem Chylde: Nerdy but Mighty (and Still Learning)

Protection to Mistresses and Live-in Partners

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Holding that a mistress or a live-in partner is to be treated at par with a wife under the Domestic Violence Act, 2005, a Bench of the Delhi High Court comprising Justices Vikramjit Sen and P K Bhasin has said:

We find no reason why equal treatment should not be accorded to a wife as well as a woman who has been living with a man as his common-law wife or even as a mistress.

Like treatment to both (wives and mistress) does not, in any manner, derogate from the sanctity of marriage since an assumption can fairly be drawn that a live-in relationship is invariably initiated and perpetuated by the male.

In unfortunate and uncomfortable situations like these, if the protection given to unwedded women results in the diminution of funds available for maintenance of the legally wedded wives and the legitimate children, such diminution would not render the statute unconstitutional.

There is perception, not unfounded or unjustified, that the lot and fate of women in India is an abjectly dismal one…the argument that the Act is ultra vires the constitution because it accords protection only to women and not to men is, therefore, wholly devoid of any merit.

The court should also not be impervious to social stigma which always sticks to women and not to the men.