Research with modernization of society. Domestic violence covers

 

 

Research Paper

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Domestic Violence Against Women: Analyzing Legal
Provisions of Nepal and India (An International Perspective)

 

 

 

 

                                                                                 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

TC Number: 
18

Abstract

In our society, many women are violently treated by
their intimate partners. Sometime domestic violence leads to death of the
person. This should not be allowed to continue because women are crucial to the
growth and development of any nation and the world at large. Full
participation, understanding and cooperation is important for the community
development. Violence against women affects their psychological and wellbeing. So
women should be treated very well. So this paper discusses on domestic violence
against women regarding domestic violence guaranteed in Nepal, India and
international phenomena.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Table of content

Chapter – 1

1.1  Background

1.2  Rational

1.3  Research
Question

1.4  Methodology

1.5  Limitation

 

Chapter -2

2.1
Introduction Of Domestic Violence

2.2
Causes of domestic violence

Chapter – 3

3.1
Legal provisions of domestic violence in Nepal

3.2
Legal provisions of domestic violence in India

3.3 The Indian Penal Code

Chapter-4

4.1
Recommendations

4.2
Conclusion

Bibliography

 

 

 

 

 

 

 

 

 

 

 

 

CHAPTER -1

 

1.1Background

Domestic
violence has been the violence against women in the world. Domestic violence
against women is a violence which is committed against a woman within her
family by other members of the family usually including his husband. Despite of
modernization, domestic violence is still prevailing in our societies. There
has been change in lot of things but the condition of domestic violence is same
till now and it has been accelerated very rapidly with modernization of
society.

Domestic
violence covers all type of violence which adversely affects the life of female
member of the family in any manner and form. Domestic violence is not just
physical violence but also economic, sexual, verbal, and emotional violence
against women. The legislation nowadays is looking keenly interested to cover
up the whole matter related to domestic violence. Various acts and laws have
been made by legislation and many have been interpreted.

The
women living in remote areas are affected mostly where the women are not generally
considered as important member and are considered as so-called weaker member of
family. Both Nepal and India still follows the patriarchic culture. Majority of
population is still exposed to such values because of illiteracy and lack of
constitutional provision. So, the need of new and effective provision of law
has been felt since many years for emergence of good society as the ratio and
seriousness of crime is increasing day by day with the modernization.

This
study also makes attempts to incorporate all those laws pertaining to the
domestic violence. The efforts have also been made to discuss the control of
domestic violence with international efforts and suggestion.

 

1.2 Rational

The
rationale behind this research paper is to study and review the rights of women
regarding the domestic violence guaranteed in Nepal, India and international
phenomena. All the countries of world have given priority to the upliftment of
status of women and in this paper we focused on the legal provision of Nepal
and India as they have also taken few steps regarding this matter.

 

1.3 Research Question

What
are the rights of women regarding domestic violence guaranteed in Nepal, India
and international phenomena?

 

 

1.4 Methodology

This
research paper is based on the doctrinal approach. This paper is based on
following methodologies: –

–         
Information collected by
reviewing the literatures and internet sources.

 

 

1.5 Limitation

This
paper is just limited within the periphery of rights of women regarding
domestic violence with special reference analyzing the legal provisions of  Nepal, India and international perspective.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Chapter – 2

2.1 Introduction Of Domestic Violence

Violence
against women and girls continues to be a global epidemic that kills and
tortures – physically, psychologically, sexually and economically. It is one of
the most pervasive of human rights violations, denying women and girls
equality, security, dignity, self-worth, and their right to enjoy fundamental
freedoms. The women are one of the victims of domestic violence in various
types since the emergence of the society.

According
to Black’s law Dictionary ” A Domestic Violence is a violence between members
of a household, usually spouses, an assault or other violent act committed by
one member of a household against another “1

World
Health Organization (WHO) has defined domestic violence as ‘ the range of
sexually, psychologically and physically coercive acts used against adult and
adolescent women by current or former male intimate partners ‘ 2

Domestic
violence is also known as domestic abuse, spousal above, battering, family
violence and intimate partner violence (IPV). It is a pattern of abusive
behaviours by one partner against another in an intimate relationship such as
marriage, dating, family or cohabitation. Domestic violence, so defined, has
many forms, including physical aggression or assault (hitting, kicking, biting,
shoving, restraining, slapping, throwing objects), or threats thereof; sexual
abuse; emotional abuse; controlling or domineering; intimidation; stalking;
passive/covert abuse otherwise known as neglect; and economic deprivation.3

The
US office and Violence Against Women (OVM) defines domestic violence as a
“pattern of abusive behavior in any relationship that is used by one partner to
gain or maintain power and control over another intimate partner”. The
definition adds that domestic violence “can happen to anyone regardless of
race, age, sexual orientation, religion, or gender”, and can take many forms,
including physical abuse, sexual abuse, emotional, economic and psychological
abuse. 4 The
United Nations General Assembly defines violence against women as any act of
gender-based violence that results in, or is likely to result in physical,
sexual or mental harm or suffering to women, including threats of such acts,
coercion or arbitrary deprivation of liberty, whether occurring in public or in
private life.5

The
domestic violence can be in the form of physical, sexual and psychological and
emotional.

Physical
abuse: Most common form of violence in which any body part of victim is
partially or completely manipulated or damage that can lead to further physical
and psychological problem in future i.e. biting, hitting, kicking, slapping, stabbing,
gun shoot, use of belt and stick to harm, use of petrochemical like acid on
body parts, pulling, yelling and dragging on the floor etc.

Sexual
violence or abuse: It includes various form of sexual harms like forceful
sexual intercourse, mutilation of genitalia, painful sex (sadism), forced oral
sex, anal mutilation, digital penetration and forced nakedness etc.

Psychological
and emotional abuse/violence:  Most of
time physical abuse leads to psychological sequelae like phobia, guilt feeling,
insecurity, poor impulse control, nightmares, impaired sleep, humiliation,
shame, isolation of victim, forced weakness etc.6

 

2.2 Causes of domestic violence

The
causes of the domestic violence still prevalent in our society are mentioned
below:

Mindset: Orthodox and
Idiotic mindset of the society that women are physically and emotionally weaker
than the men.

Dowry Demand:
Not receiving dowry and leading to a fail establishment of a proper marriage relationship.

Psychological:
It focus on the psychological behavior and mental characteristics of the
people. It include sudden bursts of anger, poor impulse control, and poor self-esteem.
Sometime infertility in women also leads to domestic violence. Women are also
brutally beaten and tortured for male child.

Jealousy: Many cases of
domestic violence occur because they became jealous when women earned more than
men, her absence in the house till late night. And if they became more forward
socially also they became jealous.

Social learning:
people live in the society and they learn everything from the society. When one
observes violent behavior they are likely imitated to do it. Violence often
transfer from generation to generation.

Physical abuse: It
include ripping of the woman’s womb for killing the female fetus while
disagreeing for abortion in rural areas. Female feticide and female infanticide
continue to be a rising concern. It also includes slapping, punching, grabbing,
burdening with drudgery, public humiliation and others. 

Power and Control: Abuser
abuse in order to control and maintain power under the partner.

 

 

 

Chapter – 3

Laws of Domestic Violence

Although,
today women have proved themselves in almost every field of affirming that they
are not less than men but the reports of violence against them are much larger
in number in comparison to men.

3.1 Legal provisions of domestic violence in Nepal

Constitution Of Nepal, Part 3 – Fundamental Rights and
Duties , Article 38(3)  Rights of women :
No woman shall be subjected to physical,
mental, sexual, psychological or other form of violence or exploitation on
grounds of religion, social, cultural tradition, practice or on any other
grounds. Such act shall be punishable by law, and the victim shall have the
right to obtain compensation in accordance with law.7  

Domestic Violence (Offence and Punishment) Act, 2066
(2009) section 2(a) Defined Domestic violence as any
form of physical, mental, sexual and economic harm perpetrated by person to a
person with whom he/she has a family relationship and this word also includes
any acts of reprimand or emotional harm.

Section 13 Penalty

(1)
A person who commits an act of domestic violence shall be punished with a fine
of Three Thousand Rupees up to Twenty-Five Thousand Rupees or Six months of
imprisonment or both. 

(2)
A person who attempts to commit domestic violence or abets the crime or incites
others to commit the crime shall be liable to half the punishment of the
perpetrator. 

(3)
A person who has been punished once for the offence of domestic violence shall
be liable to double the punishment upon every repetition of the offence. 

(4)
If a person holing a public post who commits the offence of domestic violence,
he/she shall be liable to an additional ten percent punishment.

(5)
A person who disobeys the Court orders made pursuant to Section 6 shall be
punished with a fine of Two Thousand Rupees up to Fifteen Thousand Rupees or
Four months of imprisonment or both. 

3.2 Legal provisions of domestic violence in India

THE PROTECTION OF WOMEN FROM DOMESTIC VIOLENCE ACT,
2005 ACT NO. 43 OF 2005 defined Domestic Violence as;

(a)
harms or injures or endangers the health, safety, life, limb or well-being,
whether mental or physical, of the aggrieved person or tends to do so and
includes causing physical abuse, sexual abuse, verbal and emotional abuse and
economic abuse; or

(b)
harasses, harms, injures or endangers the aggrieved person 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; or

 (c) has the effect of threatening the
aggrieved person or any person related to her by any conduct mentioned in
clause (a) or clause (b); or

 (d) otherwise injures or causes harm, whether
physical or mental, to the aggrieved person.

This
act goes on, through the section to defined ” physical abuse” , ” sexual abuse”
, “verbal and emotional abuse” and economic abuse”.

Section 31 Penalty for breach of protection order by
respondent (1) A breach of protection order, or of
an interim protection order, by the respondent shall be an offence under this
Act and shall be punishable with imprisonment of either description for a term
which may extend to one year, or with fine which may extend to twenty thousand
rupees, or with both.

Section 33 Penalty for not discharging duty by
Protection Officer. If any Protection Officer
fails or refuses to discharge his duties as directed by the Magistrate in the
protection order without any sufficient cause, he shall be punished with
imprisonment of either description for a term which may extend to one year, or
with fine which may extend to twenty thousand rupees, or with both.8

 

3.3 The Indian Penal Code

Section 498A:

Husband or relative of husband of a woman
subjecting her to cruelty. 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 purpose 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.9

 

 

 

 

 

 

3.4 Some international laws regarding Domestic Violence

 

International
law requires states to protect against and respond to human rights violations. International
laws such as the Universal Declaration of Human Rights (UDHR), the Convention
on the Elimination of All Forms of Discrimination Against Women (CEDAW) and the
International Covenant on Civil and Political Rights (ICCPR) have some role
which the state have to play in preventing domestic violence as a human rights
abuse.

According
to Universal Declaration of Human Rights
(UDHR), 1948

Article 3: identifies
the right of all people to life, liberty, and security of person.

Article 5: No one shall be
subjected to torture or to cruel, inhumane or degrading treatment or
punishment.10

Domestic
violence threatens the lives, liberty, and security of women. The violence many
women face in their homes can aptly be described as torture or cruel, inhuman
and degrading treatment.

Article 2 of the Convention on the Elimination of All
Forms of Discrimination Against Women (Women’s Convention), 1979 prescribes
State Parties’ obligations as follows: 

State
Parties condemn discrimination against women in all its forms, agree to pursue
by all appropriate means without delay a policy of eliminating discrimination
against women . . . by any person, organization or enterprise and . . .
modify or abolish existing laws, regulations, customs and practices which
constitute discrimination against women.11

The International Covenant on Economic, Social, and
Cultural Rights (ICESCR), 1996

Article
12 of this covenant states, “The States Parties to the present Covenant
recognize the right of everyone to the enjoyment of the highest attainable
standard of physical and mental health.”12

The International Covenant on Civil and Political
Rights (ICCPR), 1966

Article
3 identifies that the State Parties to represent Covenant undertake to ensure
the equal right of men and women to the enjoyment of all civil and political
rights set forth in the present Covenant.13

Article 8 of
the Universal Declaration of Human Rights and Article 2 of the International Covenant on Civil and Political
Rights require States Parties to provide an adequate remedy for acts that
violate fundamental human rights.14

 

Chapter- 4

4.1 Recommendation

·        
For a policy to fight
violenve against women in developing countries such as ours. Advancing gender
equality and equity and the empowerment of women in a social structure like
ours, and the elimination of all kinds of violence against women, and ensuring
women ability to control their own biological fertility and the overall
development  related programmes initiated
by the government will bring forth a massive change within the mindset of the
people of both the countries.

·        
Authorities should take
steps to recognize violence as a public issues.

4.2 Conclusion

Having
looked at a such a sensitive issue of domestic violence we can sense the
importance of discussing such deeply embedded within a society. The very causes
that can spark the violence within the four walls of home need to be analysed
carefully and a wise study of the legal provisions regarding the violence
against women leads to betterment of society with respect to the violence that
is incurred by a women in such a patriarchal born establishment. The domestic
violence has a far more deeper impact than we can go through while reading this
paper . What is required is to see closy the association of the factors
provoking domestiv violence. If these factors alone can be analysed and control
then such violences that the women faces can be prevented from harming a valuable
member of society and our land will be better place to live in.

 

Bibliography

·        
Black’s law dictionary

·        
World Health Organization

·        
https://pdfs.semanticscholar.org/7c0c/0e8d586285b0de5acc0803eaa9829563907a.pdf

·        
Office of Violence Against Women, 2007

·        
http://medind.nic.in/daa/t12/i2/daat12i2p274.pdf

·        
Constitution Of Nepal

·        
THE PROTECTION OF WOMEN FROM DOMESTIC
VIOLENCE ACT, 2005 ACT NO. 43 OF 2005

·        
The Indian Penal Code

·        
Universal Declaration of Human Rights,
1948

·        
Convention on the Elimination of All Forms
of Discrimination Against Women,1979

·        
International Covenant on Economic,
Social, and Cultural Rights, 1996

·        
International Covenant on Civil and
Political Rights,1966

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

1 Black’s law
dictionary

2 World
Health Organization

3 https://pdfs.semanticscholar.org/7c0c/0e8d586285b0de5acc0803eaa9829563907a.pdf

4 Office
of Violence Against Women, 2007

5 https://pdfs.semanticscholar.org/7c0c/0e8d586285b0de5acc0803eaa9829563907a.pdf

6 http://medind.nic.in/daa/t12/i2/daat12i2p274.pdf

7 Constitution
Of Nepal

8 THE
PROTECTION OF WOMEN FROM DOMESTIC VIOLENCE ACT, 2005 ACT NO. 43 OF 2005

9 The Indian Penal Code

 

10 Universal
Declaration of Human Rights, 1948

11 Convention
on the Elimination of All Forms of Discrimination Against Women,1979

12 International
Covenant on Economic, Social, and Cultural Rights, 1996

13 International
Covenant on Civil and Political Rights,1966

14 Universal
Declaration of Human Rights, 1948 and International Covenant on Civil and
Political Rights, 1966