What can a domestic violence survivor do when the justice system lets her down?

Forty years after the introduction of the domestic violence provision in the Indian Penal Code, women are still at risk of having their complaints dismissed or disbelieved by police and judiciary

Written by Audrey Dmello and Flavia Agnes in Indian Express November 17, 2023

A recent study of over 4 lakh FIRs in Haryana has found that from filing FIRs to getting convictions, the legal process is stacked against women. As an NGO working in Mumbai with women and child victims of sexual and domestic violence, we resonate with this experience. Women who come to Majlis face grave domestic violence: Physical violence, including beatings with an object, banging their head on the wall, choking, strangulation, kicking, etc; economic abuse like not giving money, forcefully taking away earnings, asking the woman to get more money from her parents, etc; verbal abuse, including humiliation using filthy language, and sexual violence, including non-consensual and forced sex, and beatings if a woman resists. One of our clients was burned and kicked in her genitals because she refused to have sex.

Crimes against women have increased year on year. As per the National Crime Records Bureau (NCRB) report 2015, every day 21 women die because of dowry in India. According to the NCRB report 2019, 4 lakh cases were registered under Section 498A of the Indian Penal Code (IPC). As per the National Family Health Survey 5 (2019-20), 30 per cent of women between the ages of 18 and 49 experienced physical violence from the age of 15 (that’s over 20 crore women), while six per cent experienced sexual violence in their lifetime.

To address the gruesome violence women face in their homes, a number of laws have been enacted. Section 498A of the IPC was introduced in 1983 to tackle the problem of the large number of women dying in their homes. This is not to say that prior to this, women did not have legal provisions. Sections 319 to 338 of the IPC deal with assaults and grievous hurt in various forms. But the police refused to apply these general provisions to cases of domestic violence. Hence, there was a need to introduce a special section. One part of Section 498A IPC addresses the subjection of any woman to cruelty (whether mental or physical) of such a nature that is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health. The other part deals with unlawful demand for any property or valuable security.

Forty years later, the reluctance of the police to file FIRs even in grave incidents of domestic violence is shocking. The police are responsible for recording crimes and investigating a case. However, when it comes to recording FIRs in cases of domestic violence, burking (refusal to record FIRs) is done with a sense of righteousness — go for counselling and resolve the matter; save your marriage and family, what are you going to achieve by filing a criminal complaint; we cannot just file an FIR without talking to both the parties; the case will take very long and you won’t get anything; we can’t file a case in family matters, go to court. That women have gone through endless counselling by family members, elders and NGOs and have finally reached the doorstep of a police station seems to be completely lost on them. When women are turned away at this stage, they lose all hope and some of these cases end in suicide or murder.

While the police’s apathy towards recording FIRs in cases of domestic violence stems from a patriarchal mindset, one cannot negate the impact of demeaning comments by the Supreme Court and the various high courts. A casual internet search on Section 498A throws up reams of posts with comments by the judiciary about how women are misusing the law. The media has also been instrumental in sensationalising the issue.

In the recent case of Rakesh and Reena Rajput v The State of Jharkhand the Jharkhand High Court stated, “There is a phenomenal increase in matrimonial disputes in recent years and it appears that in many cases, the object of Section 498A IPC is being misused and the said section is used as weapon rather than shield by disgruntled wives.” In media reports about the case, there were headlines like “Disgruntled wives are using S 498A IPC as a weapon rather than a shield”. The said case was filed by the husband’s sister and her spouse for quashing criminal proceedings against them. The facts of the case as reported in the judgment are that the woman was married in 1998 and several articles and cash were given. There were two minor children from this marriage. The said criminal case was filed fifteen years later. One of the incidents mentioned in the FIR was that on April 2, 2013, the husband’s sister and father assaulted her and tried to burn her face. The woman also stated that they wanted her father to provide money for her husband’s new business as his previous venture had failed. The court held that the allegations against the husband’s sister are general and omnibus and that there were inconsistencies in the date as the sister had tickets to prove she was travelling on April 1, 2013. Both these errors, if at all, seem to be the responsibility of the police and not the woman. It is the police who record the victim’s statement, investigate the matter and file the chargesheet. If the police were not convinced of the facts, why did they not file a “B summary” report and close the case? Why did the magistrate take cognisance of the case? Why were Section 41 of the Code of Criminal Procedure and guidelines from Arnesh Kumar v. State of Bihar regarding arrest not followed by the police and court? Instead of pulling up the police and magistrate for these oversights, the court placed the onus on the woman and then went on to make the sweeping comment that “women are misusing the law”. Such comments send out a dangerous message to all the implementing agencies and will only serve to snuff out the hopes of women approaching the law to address the serious issue of domestic violence. 

Dmello is the Director of Majlis and Agnes is a legal scholar and women’s rights lawyer 

Can a rape accused claim custody of a child born of the crime? The Bombay HC thinks ‘Yes’ by Audrey Dmello

On 26th July 2023 Justices Revati Mohite-Dere and Gauri Godse of the Bombay High Court lambasted the Child Welfare Committee (CWC), Mumbai Suburban 11 for rejecting the custody application of a  (rape accused) biological father. The HC directed the CWC to hand over custody of the child to the biological father. The court asserted that it would pass an order on 28th July 2023 if the CWC does not do the needful.

This is an absolutely shocking and dangerous precedent that the HC has ventured into. Every rape accused is a biological father to a child born of the crime. Can an accused take advantage of his own wrong and claim custody of the child?

What is even more appalling is that the HC has not once taken into consideration the say of the rape victim. On several occasions the victim appeared before CWC stating that she was frightened as the accused approached her frequently after he was granted bail and threatened that he would kill her and destroy her life. In a Social Investigation Report conducted by the CWC the victim stated that the accused had tortured and abused her and refused to let her contact her parents. 

The facts of the case are – In October  2021, 17-year-old victim realised she was pregnant and out of fear eloped with Mr. Ramu Gadivdar (21) to Karnataka from Mumbai. On 26th November, 2021, she gave birth to a boy. On 5th March, 2022 the police traced the victim because of a missing complaint filed by her father and a case was registered at Sakinaka Police Station under S. 376 IPC and S. 4, 8 and 12 POCSO Act*, 2012.  The victim and the minor child were sent to St Catherine Home, Mumbai. Mr Gadivdar was arrested and was later granted bail. 

On 12th April, 2022, the survivor surrendered the child for adoption to CWC so that the child is not bogged down by social stigma and to ensure his future and welfare. After being declared free for adoption by Central Adoption Resource Authority,  the child was given to foster parents on 3rd January 2023. In November 2022 she got married to another person.

On 5th January 2023 Mr. Gadivdar filed a habeas corpus (produce the body) writ petition in the Bombay HC seeking custody of the child. On 4th May 2023 the HC stayed the child’s legal adoption proceedings and the child was brought back to the shelter home under great trauma to the child as well as the adoptive parents.. 

On 17th July 2023  Mr Gadivdar applied for custody of the child to the CWC. On 21st July, 2023 the CWC rejected the application on the grounds that Mr Gadivdar is the accused in the case and giving him custody of the child, which is the result of the crime, was not in the best  interest of the victim as well as the minor child.

It is reasoned precedent by various High Courts and Supreme Court (SC) that an accused cannot take advantage of his own wrong. If a child is born as a result of rape, granting custody or parental rights to the accused can further exacerbate the victim’s trauma and negatively impact the child’s well-being. 

In Rakhi Devi vs State of Uttarakhand and Ors, MANU/SCOR/55016/2023 the mother of the accused sought custody of the child delivered out of the rape. The SC upheld the High Court’s dismissal. The CJI led bench commented that “Your son is convicted of rape. This child was born out of sexual assault. There has to be some limit in taking liberties with the court by filing such absurd habeas corpus petitions.”

It would be judgmatic for the Bombay HC to consider the following ingredients before granting custody to the rape accused. 

  1. Does the HC have powers to pass orders of custody in a Habeas Corpus Petition. Would it be prudent for the HC to direct the accused to approach the relevant authority which in this case is the Family Court?**. 
  2. While the CWC has powers to revoke the adoption process as per JJ Act, 2015 would it not have to grant custody back to the victim? Does the CWC have powers to pass an order of custody to the accused? 
  3. If the surrender deed by the victim is revoked and the HC allows the (rape accused) biological father to take custody of the child what happens to the victim? Will she continue to be the mother of the child? Can the accused or the minor child claim rights on the victim in future? ***.
  4. Will the HC order set a precedent that all rape victims will have to mandatorily take consent of the accused before giving up the child born of the sexual assault for adoption?

The ultimatum given by the Bombay HC to the CWC to grant custody to the rape accused is both statutory as well as procedurally ultra vires. But beyond this it would be a grave travesty of justice and exacerbate the trauma of  all sexual assault victims.  

Audrey Dmello is the director of Majlis, an NGO that  provides legal and social support to women and children facing sexual and domestic violence.

* The Protection of Children from Sexual Offences Act, 2012 states that all sexual activity with a minor below 18 years is a crime. 

** JJ Act, 2015 2 (23) “court” means a civil court, which has jurisdiction in matters of adoption and guardianship and may include the District Court, Family Court and City Civil Courts; 

*** JJ Act, 2015 2 (2) “adoption” means the process through which the adopted child is permanently separated from his biological parents and becomes the lawful child of his adoptive parents with all the rights, privileges and responsibilities that are attached to a biological child; 

JJ Act, 2015 S. 38 (3) Notwithstanding anything contained in any other law for the time being in force, a child of a mentally retarded parents or a unwanted child of victim of sexual assault, such child may be declared free for adoption by the Committee, by following the procedure under this Act.

As 2020 came to a close, the state cabinet of Maharashtra decided to approve the draft bill of the ‘Shakti Act’ that aims to curb sexual crimes and violence against women and children. The state government believes that a stringent and speedy trial is imperative to prevent heinous offences against the two vulnerable groups.

Several women’s organisations across the country have opposed the government’s move to increase the age of marriage of girls from 18 t0 21 years, which has been ironically touted as a measure of women’s empowerment.

HAPPY BIRTHDAY, Flavia and congratulations for receiving the first LAADLI GENDER CHAMPION AWARD instituted in memory of Dr. Gail Omvedt, Ms. Sonal Shukla and Ms. Kamla Bhasin. online function on 5-12-2021, 4.30 pm.

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