Domestic Violence Prosecution: India Vs Uk
Legal Framework
India:
The key legislation is The Protection of Women from Domestic Violence Act, 2005 (PWDVA).
It provides civil remedies for protection, maintenance, custody, and more.
Criminal prosecution often proceeds under IPC sections like Section 498A (Cruelty by husband or relatives) and other relevant penal provisions (e.g., assault, hurt, etc.).
The law recognizes physical, emotional, verbal, sexual, and economic abuse.
Protection Officers and Magistrates play key roles.
UK:
Domestic violence is prosecuted under criminal laws including the Domestic Abuse Act 2021, Offences Against the Person Act 1861, and general criminal laws like assault and harassment.
The UK law is more focused on criminal prosecution.
The term "domestic abuse" covers physical, emotional, psychological, and controlling behaviors.
Police and Crown Prosecution Service (CPS) take a lead role.
There are specific provisions for restraining orders and special measures for vulnerable victims.
Key Differences:
India focuses more on protection through civil remedies combined with criminal provisions.
UK emphasizes criminal prosecution with integrated victim support.
Detailed Case Law Explanation
India Cases
1. Indra Sarma v. V.K.V. Sarma (2013)
Supreme Court of India
Facts: The petitioner sought protection from domestic violence under PWDVA.
Issue: Whether live-in relationships fall under the ambit of domestic violence laws.
Holding: The court held that a "relationship in the nature of marriage" under PWDVA must satisfy certain conditions (like shared household, reputation of marriage).
Significance: Set guidelines for protection of women in live-in relationships, extending domestic violence protection beyond traditional marriages.
2. D.V. Narasa Raju v. D.V. Subba Raju (1998)
Supreme Court of India
Facts: Wife accused husband of cruelty under Section 498A IPC.
Issue: What constitutes cruelty to invoke Section 498A.
Holding: The court expanded the definition of cruelty to include mental cruelty and harassment, not just physical violence.
Significance: Broadened the scope of domestic violence prosecution under IPC.
3. Samar Ghosh v. Jaya Ghosh (2007)
Supreme Court of India
Facts: The case involved mental cruelty leading to divorce proceedings and claims under Section 498A.
Holding: The court emphasized the importance of mental cruelty in domestic violence cases.
Significance: Reinforced the recognition of mental cruelty as a form of domestic violence.
4. Bhagwan Das v. State of Rajasthan (2006)
Rajasthan High Court
Facts: Woman alleged physical and mental abuse.
Outcome: The court ordered the husband to pay maintenance and restrained him from further violence.
Significance: Example of civil protection under PWDVA.
5. Hiral P. Harsora v. Kusum Narottamdas Harsora (2016)
Supreme Court of India
Facts: Wife moved for protection and maintenance under PWDVA.
Holding: The court stated PWDVA is a comprehensive law covering all forms of domestic violence and must be interpreted liberally to protect women.
Significance: Affirmed the expansive scope of PWDVA.
UK Cases
1. R v. Brown (1993)
House of Lords
Facts: Group of men convicted of assault during consensual sadomasochistic acts.
Issue: Whether consent was a defense in cases involving bodily harm.
Holding: Consent is not a defense for actual bodily harm or worse.
Significance: While not directly domestic violence, it established limits on consent in bodily harm cases, relevant for prosecuting abuse.
2. R v. Smith (Morgan) (2001)
House of Lords
Facts: The defendant was convicted of grievous bodily harm (GBH) on a partner.
Issue: Definition of "maliciously" causing harm.
Holding: Confirmed that intention or recklessness to cause harm is sufficient.
Significance: Clarified mens rea (mental element) in domestic violence prosecutions.
3. R v. Ireland; R v. Burstow (1998)
House of Lords
Facts: Silent phone calls and harassment leading to psychological harm.
Holding: Psychological injury constitutes bodily harm under the Offences Against the Person Act.
Significance: Enabled prosecution of non-physical forms of domestic abuse.
4. R v. Jones (2016)
Court of Appeal
Facts: Defendant convicted for coercive and controlling behavior under new legislation.
Significance: First conviction under Section 76 of the Serious Crime Act 2015 for controlling behavior in an intimate relationship.
Impact: Strengthened prosecution of psychological abuse/domestic coercion.
5. R (on the application of F) v. Secretary of State for the Home Department (2015)
High Court
Facts: Judicial review related to immigration status of victims of domestic abuse.
Holding: Confirmed protections for victims, enabling prosecution without fear of immigration consequences.
Significance: Demonstrated UK's approach to victim support alongside prosecution.
Summary Comparison
| Aspect | India | UK |
|---|---|---|
| Primary Law | PWDVA 2005 + IPC sections (498A etc.) | Domestic Abuse Act 2021 + criminal laws |
| Approach | Civil remedies + criminal prosecution | Mainly criminal prosecution + victim support |
| Abuse Types Covered | Physical, emotional, sexual, economic | Physical, emotional, psychological, coercion |
| Key Authorities | Protection Officers, Magistrates | Police, Crown Prosecution Service |
| Landmark Cases | Indra Sarma, Samar Ghosh, Hiral P. Harsora | R v. Ireland; R v. Jones, R v. Brown |
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