“Domestic violence causes far more pain than the visible marks of bruises and scars. It is devastating to be abused by someone that you love and think loves you in return.” –US Senator Dianne Feinstein
“He beats me every day…without any reason…today, he has beaten me to the bones,” wrote Neha Chhikara. Minutes after sending this email to her brother from a cruise ship in the Bahamas, Neha jumped into the sea, ending a life of domestic torture and violence.
Right this minute, a Neha or Nancy or Najma is being thrashed inside her home. According to a 2005 UN study, two-thirds—that is 70 per cent—of married women in India between the ages of 15 and 49 are victims of beating, rape or coerced sex.
Why do they suffer in silence? Often, it is simply because they don’t know what to do. That’s why, we requested eminent Delhi advocate Asutosh Lohia to shine the light on domestic abuse, taking a real-life case as an example:
“Disha has been married to Fido for 15 years. They have two children (girl 13, boy 10). A couple of years ago, Fido started an intense extra-marital affair with a widowed woman. This created tensions in the family, some of which got violent. On at least five occasions, Fido thrashed Disha quite hard, but Disha kept quiet about it, fearing that the revelation would hurt her children and her parents. Also, she was afraid of what Fido might do if she opened her mouth.
Fido says the affair is over, but Disha cannot be sure.
Disha now wants to divorce Fido, but their financial affairs are quite complicated: they co-own a television company, two apartments and some land. Disha is not sure how much alimony/property she is entitled to, and how she should go about starting the process of separation. If she tells Fido she wants a divorce, he might get violent. She is afraid to involve the police/family/womens’ organisations for fear that her children will be traumatised. And there seems to be no way to quietly get her share of the assets and move away.
The two children are much closer to their mother and would like to stay with her. Would the court grant their custody to Disha?
Asutosh Lohia Replies
Women like Disha need not despair. There are several statutes or laws which can come to their rescue.
Violence: Disha can make use of the provisions of the Protection Of Women From Domestic Violence Act, (POWDA, for short). This is how it works: She will need to file a petition before the concerned metropolitan magistrate’s court. After considering the merits of the case, the court will grant her protection if required, and a protection officer would be appointed for checking up regularly upon her safety.
Additionally, Disha could call up the police (in case she does not want to create a scene, she could take the help of The Crime Against Women Cell) in order to save herself from the domestic violence. Since she is concerned about the trauma that the children may have to undergo, she could share her situation with them, seeking their help and assistance in dealing with it.
Alimony: Disha may claim alimony/maintenance payable to her and her children by her husband Fido. The following statutes provide for interim and permanent alimony to a woman during her marriage and even afterwards upon divorce/separation from her husband:
i. Section 125 of the Cr.P.C.;
ii. Section 24 of the Hindu Marriage Act;
iii. The Protection Of Women From Domestic Violence Act;
iv. The Guardianship And Maintenance Act.
The general thumb rule is that the woman and children are entitled to a maintenance/alimony that ensures the same standard of living as is being maintained by the husband for himself. To ensure this, the expenses for the wife and children are calculated in proportion to the husband’s income—including day-to-day needs, education, clothing and other expenses.
The Assets: Ordinarily, the wife is entitled to half of all the assets acquired by the husband during the marriage. In case the wife has also contributed towards household expenses and has spent money towards the acquisition of the assets, her share would accordingly increase in the assets belonging to the family. Under the provisions of the POWDA, Disha is entitled to retain the possession of the matrimonial home exclusively to herself in case Fido inflicts any violence upon her, till a final adjudication by the court.
Custody: For the court, the welfare of the children is paramount. If the children express their wish to stay with the mother, the court will, in all likelihood, grant their permanent custody to the mother alone.
To sum up, Disha should first approach the legal aid cell of the High Court or the district courts, where a matrimonial counsellor would be provided to her. The counsellor would initiate proceedings under The Protection Of Women From Domestic Violence Act, helping her obtain separation from her husband.
Thereafter, she should file petitions for grant of maintenance and alimony and ensure that the possession of the flats and the television company does not go out of her hands. Disha’s children would benefit from psychological counselling to help them emerge from the trauma that is likely to be inflicted upon them during the catharsis.