There have been some successful attempts to address violence in the area of tort law, or civil wrongs. Actions for negligence have been brought in cases where the defendants have breached their duty to protect women at foreseeable risk of violence. Examples include an action against the police for failing to protect women against a known rapist and actions against landlords for failure to protect tenants from rape and other forms of assault. Negligence actions are potentially available against any body or person with a responsibility to protect the community or provide a safe environment, for example, a school or university, an occupier of a public building, or perhaps a local government authority with responsibility for street lighting. The tort of trespass to the person, which includes assault and battery, has also been used directly against perpetrators.
Developing new torts
Tort law may also have the potential to develop other responses to violence. For example, in the UK there is currently debate over whether the law relating to nuisance and the tort of intentional infliction of emotional distress can deal adequately with harassment or whether a new tort should be developed. Tort law could develop ‘a category sui generis for injuries suffered by individuals because they are women’, using the understanding of social injury.
A new framework
There are many possible responses to the problem of violence against women and a variety of legal doctrines in which violence emerges as an issue. A complete legal response to violence might require a substantially reconstructed legal framework with a new category solely for the purpose of dealing with violence against women in all its forms. This is beyond the scope of what can be achieved in this reference.
The emergence of violence against women
In many cases violence against women may not be the issue before the court. However, a history of violence may emerge from a discussion of the background of the case. It can become a central part of the context of the case. The first three examples below form a case study of how aspects of the non-criminal law respond to ‘domestic’ homicide. These and the other examples here show how, by examining violence against women only through criminal or quasi-criminal law, its extensive incidence and effects in other legal and social contexts can be easily overlooked. The examples may also illustrate the link between violence and women’s economic inequality.
Assault or criminal force to woman
The apex court in State of Punjab v. Major Singh, while dealing with section 354 had interpreted the term ‘women’ denoting female of any age. It further held that an offence which does not amount to rape may come under the sweep of section 354, IPC.
In this context the decision rendered in the case of State v. Musa is worth noticing. The aforesaid offence caught the eye of the nation when a senior police officer misbehaved with another senior officer belonging to the IAS cadre. The lady officer was slapped before the members of the elite society. Their Lordships (Supreme Court) observed that the observations made in the FIR were neither absurd nor inherently improbable. Finally the accused was acquitted.
In Rupen Deo Bajaj v. Kanwar Pal Singh Gill, the Supreme Court said that the offence under this section should not be treated lightly as it is quite a grave offence. In certain western countries privacy to person and even privacy to procreation are regarded as very sacrosanct rights and if this offence is studied in that prospect the offence would clearly show that it affects the dignity of women and, therefore, the accused of this offence, when proved, should be appropriately dealt with.
In People’s Union for Democratic Rights v. Police Commissioner, Delhi, Police Headquarter and another, the supreme court after holding that the accused was guilty of offence under section 354 of IPC, awarded, to the victim, compensation which is to be recovered from the salary of the guilty officers.
Presently, I shall deal with the regard to offence of rape. Offence of rape is regarded as one of the most heinous crimes. Every person’s physical body is a temple in itself. No one has the right to encroach and create turmoil. When there is any kind of invasion or trespass, it offends one’s right. The right of a woman to live in her physical frame with dignity is an epitomization of sacrosanctity. An impingement or incursion creates a sense of trauma in the mind of the person. Not only does the body suffers but also the mind goes through such agony and tormentation that one may not be in a position to forget it throughout her life. She becomes a different person in the eyes of the society for no fault of hers. That apart the offence of rape is an offence which creates s a dent in the social marrow of the collective and a concavity in the morality of the society.
In State of Haryana v. Mange Ram, their lordships (Supreme Court) gave emphasis highlighting that the evidence in the case of this nature should be appreciated on broader probabilities and the judge should not be carried away by insignificant contradictions.
In State of A.P. v. Ganula Satya Murthy, the Supreme Court made an observation that it is an irony that while we are celebrating women’s rights in all spheres we show little or no concern for their honour. Their lordships further observed that the courts must deal with rape cases with utmost sensitivity and appreciate the evidence of the totality on the background of the entire case and not on isolation.
An aspect which needs to be stated here is that a woman who has been raped is not an accompliance. She is the victim of a carnal desire. In a case of rape, corroboration need not be searched for by the judge if in the particular circumstances of the cases before him he is satisfied that it is safe to rely on the evidence of the prosecutrix. If the prosecutrix is able to give a vivid account of how she was subjected to sexual harassment and the intercourse, the same can be placed reliance upon and the conviction can be recorded.
In State of Maharashtra v. M.M. Madikar, it has been empathically laid down that there is rule or prudence requiring corroboration of the victims in a case of rape.
At this juncture I may state that sometimes the trial courts give emphasis on absence of physical injuries, lack of corroboration by medical evidence, non-raising of alarm, no evidence of showing resistance and such other ancillary factors. From these angles the prosecution is disbelieved or the court arrives at the conclusion that there is consent.
The apex court in the case of State of H.P. v. Mange Ram, has clearly laid down that if the prosecutrix submits her body under fear or terror the same would never amount to consent. In the said case their lordships also held that in the absence of any violence to the body of the victim in all circumstances would not give rise to inference of consent.
In State of Rajasthan v. N.K. , wherein the supreme court held that the absence of injuries on the person of the prosecutrix is not necessary to falsify the allegation or be regarded as an evidence of consent on the part of the prosecutrix.
Dowry cruelty and dowry death
The other offences which relate to women and have become wanton and excessive are offences under section 304-B and 498-A. the apex court has given a broader meaning to the concept of cruelty enshrined under section 498-A of ipc. A case may not fall under section 304-B when ingredients are not fulfilled but when cruelty is otherwise proved, the trial judge is entitled to record a conviction under section 498-A. The ingredients which are necessary to be satisfied for an offence under section 304-B are as follows:
# The death of the woman is caused by any burns or bodily injuries.
# Occurs otherwise than under abnormal circumstances.
# And the aforesaid two factors spring within the seven years of the girl’s marriage, and
# Soon after her death, she was subjected to cruelty and harassed by her husband or his relatives; and
# This is in connection with the demand of dowry.
Homicide and violence outside the criminal law
One of the best known legal aphorisms is ‘no man shall profit from his own wrong’. A common example given of this is the rule that a person cannot benefit under the will of someone that person has killed. However, the circumstances of some homicide cases, in which women have killed their husbands after a long history of abuse; have confronted some courts with the dilemma of how to apply this principle. For example, in a case the Supreme Court of Victoria was confronted with an application for probate by a woman named in her husband’s will as his executor who had pleaded guilty to manslaughter. The judge noted that he had before him materials from the criminal proceeding, which demonstrated that the relationship involved violence or threats of violence directed by the deceased to his wife.
The cumulative effect of the deceased’s behavior as to engender in his wife a very real and understandable fear of him.
After reviewing a number of authorities concerned with the principle, the Court decided, in view of its finding that her level of moral culpability was markedly diminished, that this was not a case in which the rule should operate to prevent the granting of probate. Similarly, in the NSW case Public Trustee v Evans, the Court decided that the forfeiture rule should not apply where the applicant had been subjected to a prolonged history of violence prior to the killing.
A co-ordinated response to domestic violence requires a rethinking of, among other things, housing and social security policies. In the context of social security, a history or current fear of violence may arise as an issue in a number of ways. For example, a sole parent may not wish to pursue child support from her former violent partner because she is in fear of him. This is a matter, which has been recognized by the Department of Social Security in its guidelines as forming a valid basis for an exemption from the obligation to pursue support from her ex-partner. Alternatively a woman may be overpaid entitlements as a result of pressure by a male partner to make a claim to which she is not entitled. It has also been suggested to the Commission that women who fear violence from their ex-partner may be more likely to plead guilty when confronted with criminal charges relating to overpayments, which may themselves flow from the violence by a partner. In one case recounted, a woman had pleaded guilty as she believed that this would prevent her ex-partner from finding her. It was suggested that if she had been prepared to plead not guilty and the matter gone to trial, she would most likely have been acquitted. It appears that there may be many situations in which men’s violence against women (and children) may be central to the context of a case but not formally be an issue for decision. The Department of Social Security is preparing guidelines for staff on dealing with clients who are the targets of violence. However, this recognition of the impact of violence on clients has not been incorporated into the legislation which governs entitlements.
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