Lessons From The Law
It is unfortunate that home, the sweet home, the abode of rich and complex feelings and a place of retreat for protective sphere of family life, could be a very dangerous place for women of giving protective shade by being a sanctuary of tranquillity and harmony family has become in many situations breeding ground of violence against women in the hands of their own relations. Domestic violence being incongruity in terms and gender neutral in words, is frequently and privately inflicted on women. Wife battering is the prominent type of domestic violence, practiced as a matter of legal privilege in common law Rule of thumb represented that the husband had the right to beat his wife so long as he used a stick no thicker than his thumb.’ Blackstone recognised husband’s right to give his wife moderate correction by domestic chastisement to prevent her misbehaviour? The practice was prevalent in lower ranks of people, and continued although sparsely in 20th century England with a rider that the beating should not be violent or cruel. In Meacher v. Meacher, the Court of appeals declined to uphold husband’s right wife when she refused to obey his orders not to visit her relations. But some cases in 1959 and 1975 support husband’s privilege so long as its effect was moderate.” Anyway, the traditional rule reflected subordinate position of women in family and other social institutions.
In India, the ancient law given by Manu and Yajnavalkya entrusted the responsibility of protecting females upon father, husband and son various stages of life.” The parental and quasi-parental right on the part of father and husband to protect from evils is the basis for mild disciplines in the interests of the woman and family itself. Wife’s duty to act according to the reasonable words of the husband also subjected her to some amount of regimentation. But this is a reciprocal duty in marriage as it is also provided in Manu Smriti that husband shall not only maintain his wife but also treat the wife with respect. It was considered by Narada that wife was half of the husband, and the very wealth of him. In the circumstance of adultery by wife she was compelled to undergo penance or disentitlements rather than beating. On the whole, absolute privilege of wife beating was not the spirit of ancient Indian law.
The Madras High Court discussed legality of wife beating in Subbiah Gounden case in 1936.4 The Session Judge of Madura District Court had exempted the husband from criminal liability for beating his wife, as the husband had right to batter his wife. Categorically denying any foundation for such a legal proposition, the Madras High Court observed, No such unqualified right is nowadays recognised by the law and wife beating is not eo nomine one of
the exceptions in the General Chapter in the Indian Penal Code. The Court stated that no one should rely on the Sessions Court judgment in future as a justification for wife-beating. Gandhiji hailed this judgment as a fitting attack on a remnant of barbarism. The implication of Subbiah Goumden judgment is that wife beating amounts at least to the offence of application of criminal force or assault, and in case of grave injury it may amount to serious offence like grievous hurt etc. According to Section 350 IPC Whoever intentionally uses force to any person, without that person’s consent, in order the committing of offence, or intending by the use of such force to cause, or knowing it to be likely that by the use of such force he will cause injury, fear or annoyance to the person to whom the force is used, is said to use criminal force.” Since marriage is not a factor that amounts to giving of consent for the purpose of Section 350, wife beating can be brought within the ambit of Section 350. But use of the phrase “no such unqualified right” in Subbiah Gounden judgment hints that the husband has a qualified right of wife beating in justifiable circumstances. The position is different after the Domestic Violence Act, 2005. The fact that women seldom resort to general law like IPC owing to family relationship, dependency, lack of legal literacy or helplessness does not mean absence of legal remedy. But it is a fact that calls for a comprehensive legal scheme for protection from domestic violence.
Author is Senior lecturer at KCEF Law College Pulwama