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Survivors > Domestic Violence > Legal information regarding DV

Knowing your legal rights

One of the main responses to domestic violence from the state was to create laws and amend the existing ones. The following civil and criminal laws that already exist can be used to resist domestic violence. Married women facing domestic violence can take recourse to civil law and apply for maintenance and divorce. It should be remembered that civil law provisions for each community are different.

Information regarding all relevant acts/laws are available below:

Section 498A
Under criminal law offenders can be prosecuted under 498-A. This provision, which also covers dowry-related harassment, helps the woman to seek immediate police action. But is must be resorted to with a lot of forethought. Getting involved in any criminal litigation is a drain on time, energy and money. Women have to weigh their situation and alternatives very carefully. If this provision is invoked, it is the public prosecutor who appears for the woman since it is a crime against the state. The public prosecutor has no particular interest in getting justice for the woman. In the long run, the woman lands up making a series of appearance in court. During this phase, she usually depends on the natal family, which is initially supportive out of indignation or a desire for retribution but sometimes cannot hold out in the long run. Under prolonged pressure, violence has been known to erupt in the natal family as well. Therefore, this remedy should be sought after proper consideration of the pros and cons and after much counseling and thought.

Section 304B
This section addresses deaths due to cruelty and harassment for dowry. If a woman dies of unnatural causes within seven years of marriage and has been harassed for dowry before her death, the courts will assume that it is a case of dowry death. The husband or in-laws will then have to prove that they were not the cause of her death. A dowry death is punishable by imprisonment of at least seven years. When filing a First Information Report (FIR) in a case where these is suspicion that the woman is murdered after a history of torture due to dowry demands, the complaint should be filed under section 304B.

Section 306, IPC
This deals with abetment to suicide. It can be invoked when a woman commits suicide because of harassment and cruelty.

Section 174. CrPC
This was amended by the Criminal Law Act, 1983, to provide for investigation by the police in cases of suicide committed by women or death of women occurring in suspicious circumstances within seven years of marriage.

Section 113 and 133B, Indian Evidence Act
These were inserted to emphasize that if a woman commits suicide within seven years of her marriage due to cruelty by her husband or his relatives, the court may presume that such suicide had been abetted by her husband or relatives.

Section 125 CrPC
This enables women to file for maintenance and to get immediate relief. Muslim women also can use this provision until they are divorced. There is a specific doubt regarding the divorced Muslim womans right to maintenance. Since 1988, various High Courts have held that a divorced Muslim woman has the right to a fair and reasonable settlement in addition to maintenance for three months. This was possible based on the interpretation of provision under section S.3 of Muslim Women (Protection of Rights on Divorce) Act, 1986. Based on this provision many women have received a one time payment as fair and reasonable settlement.

Section 405, 406 IPC and Stridhan
Under different personal laws, women have certain property and inheritance rights. These are far from equal. Since our family systems are rigidly patriarchal, women have hardly any means to assert these rights. So they are often left with no choice by to give up their share in property. However, a woman can now make a police complaint under Indian Penal Code Sections 405 and 406 to take possession of her Stridhan. Even police personnel do not know about this provision. But the woman can insist on these to exercise her rights.

In this context, a woman needs to know what stridhan is and how to go about getting it back. All gifts in cash and kind given by the natal and matrimonial family members and friends during and after marriage constitute stridhan. This includes gold, silver, sarees, clothes, furniture, linen, utensils, and home appliances. She has the sole right over these items. According to an earlier tradition, all the valuables exchanged in marriage by both families were comprehensively listed. This tradition has now lapsed. Therefore, women do not have any documentation of all that they are promised and gifted.

This tradition needs to be revived. All women should keep receipts of the gold and other gifts bought for them by the natal family. This is useful if circumstances turn adverse and they have to retrieve their belongings. At such a time, a previously prepared list is helpful, but in its absence, a woman must make a written list before taking physical possession of her things. After retrieving her belongings, she has to go to the nearest police station and submit the list to avoid being charged with theft.

Prevention of Women against Domestic Violence Act
The PWDVA was passed in 2005 and is a landmark piece of legislation that provides civil remedies for all forms of domestic abuse experienced by women. All the earlier legal remedies concentrated on violence in the matrimonial family. But the experience gained through womens narration is valuable since so many women have also reported violence from the natal family and from men with whom they have a live-in relationship in the nature of marriage. This Act extends protection to women in all these relationships. Another important contribution of this Act is that it has made it difficult to render women shelterless or throw them out of the home. It also makes provisions to put in place the necessary structures that would make it easy to access and implement. It provides immediate thought temporary protection from domestic violence. There is a provision to obtain protection orders if the woman applies for relief. This is a civil remedy with the provision to combine a criminal remedy if needed and is applicable to all women irrespective of religion. It is also the first time that sexual violence within the confines of marriage has been recognized as a punishable crime, as even the rape laws do not consider such violence a crime.

The womans movement has made this Act a reality. How women will be able to use it and how the test cases will unfold remains to be seen. But now that the remedy is available, negotiating non-violence may become easier since the woman can make a direct application to the magistrate. It takes into account physical, psychological, emotional, verbal, sexual and economic violence. However, we must remember that legal recourse has its own difficulties. It consumes time, money and energy. Laws are enacted and amended with regularity but pervasive gender biases and poor implementation undermine them. Women who have to resort to legal protection face a tough fight and must prepare themselves psychologically to brave all these aspects.

Right to stay in matrimonial home
Battered women are frequently rendered shelterless. They need to know what can be called their matrimonial home. It is the household that a woman shares with her husband  whether it is rented, officially provided, or owned by the husband or his relatives. A womans right to remain in the matrimonial home has been recognized under the Protection of Women from Domestic Violence Act, 2005. If a woman is being pressurized to leave the matrimonial home, she can ask the court for an injunction or restraining order protecting her from thrown out. It is generally advisable not to leave the matrimonial home provided there is no threat to life or threat of injury. It is easier to get a court order preventing a woman from being thrown out that to get an order enforcing her right to return to it once she has left or been thrown out.

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