Introduction
Domestic violence or abuse against children is developing at a disturbing rate across the globe. This phenomenon poses risk against the child’s mind and conscience vulnerable to them being easily influenced by any situation that arises. These include problems associated with depression, anxiety, post-traumatic stress disorder, isolation, shame, fear, guilt, and low self-esteem. The crime of domestic violence or maltreatment against kids is normally carried out either by the parents or an individual from the family. So, there is need for the government to make laws to save children from violence and evil, by which every citizen will be bound by the duty to abide by those laws strictly to frame the future of the country.
Domestic violence against minor in India
The constitution of India safeguards several rights of the children regarding their education, freedom of speech, religious practices, dignity of life, etc. But no exclusive legislation has been enacted in the nation that safeguards the children of this country from domestic violence against them.
Domestic violence against minor is of two types:
- Corporal Punishment- the parents or guardians of the child use physical forces to compel their child to act according to their will. Slapping, thrashing, and belting are few examples. This includes compelling a child to ingest food or forcing them into certain activity.
- Psychological violence- the parents or guardians of the child are involved in the usage of force which makes an impact on the mind or conscience of the child. This involves building a sense of fear or intimidation within the child not by the use of physical force but with verbal communication. Aggression, threats, guilt, manipulating the emotions of the child, withdrawal of love towards the child etc are few examples1.
Issue
Whether current provisions are sufficient to protect minors from domestic violence ?
Review of literature: Legal action on domestic violence against minor in India
Indian law has provisions relating to violence against minor in various acts, but no particular law is explicitly enacted with the object of securing children against domestic violence.
- Juvenile Justice (Care and Protection of Children) Act, 2015
This act is intended to provide protection to children whose rights and privileges are infringed. It treats a minor child, who is subject to domestic violence by his or her parent or any other person, as a child in need of care and protection.
The law defines a child exposed to domestic violence as one who resides with a person (whether a guardian of the child or not) and such person—
(a) Has injured, exploited, abused or neglected the child or has violated any other law for the time being in force meant for the protection of child; or
(b) Has threatened to kill, injure, exploit or abuse the child and there is a reasonable likelihood of the threat being carried out; or
(c) has killed, abused, neglected or exploited some other child or children and there is a reasonable likelihood of the child in question being killed, abused, exploited or neglected by that person;”2
If any parent has treated their child with physical violence for the purpose of disciplining or reforming, it is called corporal punishment and the act mentions “corporal punishment as the subjecting of a child by any person to physical punishment that involves the deliberate infliction of pain as retribution for an offence or for the purpose of disciplining or reforming the child”.
The JJ act also provides that the biological family or adoptive or foster parents, have primary responsibility to care, nurture and protection of the child.
Section 75 of the act provides for the punishment for cruelty or domestic violence by parent. It states ‘Whoever, having the actual charge of, or control over, a child, assaults, abandons, abuses, exposes or willfully neglects the child or causes or procures the child to be assaulted, abandoned, abused, exposed or neglected in a manner likely to cause such child unnecessary mental or physical suffering, shall be punishable with imprisonment for a term which may extend to three years or with fine of one lakh rupees or with both.”3 Provided also that on account of the aforesaid cruelty, if the child is physically incapacitated or develops a mental illness or is rendered mentally unfit to perform regular tasks or has risk to life or limb, and also if such offence is committed by any person employed by or managing an organisation, which is entrusted with the care and protection of the child, such person shall be punishable with rigorous imprisonment, not less than three years but which may be extended up to ten years and shall also be liable to fine of five lakhs rupees.
In case it is found that such abandonment of the child by the biological parents is due to circumstances beyond their control, it shall be presumed that such abandonment is not willful4 and the penal provisions of this section will not apply in such cases.
In case the offence is committed on a child who is disabled and so is certified by a medical practitioner, then such person will be liable to twice the penalty provided for such offence. Where the same offence is made punishable under any other act then, the guilty offender will be punished under the law which provides for punishment which is greater in degree.
- Protection of children From Sexual Offences Act (POCSO), 2012:
This act deals with sexual offences to which children are subjected to. If a child undergoes sexual assault or harassment by his/her parent then the offence will be punishable under this act with A minimum of 20 years of imprisonment that may be extended up to life imprisonment and fine5.
- The Protection of Women from Domestic Violence Act, 2005:
This act along with providing punishment for the offence of domestic violence with women, also covers the domestic violence by parent upon a girl child.
Domestic violence has been defined as any act, omission or commission or conduct of a person which includes causing physical abuse, sexual abuse, verbal and emotional abuse and economic abuse; by way of harassing, harming, threatening, injuring or endangering the health, life, safety or well-being of the aggrieved person which maybe either mental or physical.
A woman or a girl child may on application obtain a relief by way of protection order, an order for monetary relief, a custody order, a residence order, a compensation order or more than one such order under this Act.
- Indian Penal Code, 1860
Section 373 of IPC states that whoever is involved in the activity of buying, hiring or has any sort of possession of any minor girl for the purpose of prostitution. Such person shall be liable for a fine and imprisonment which can extend upto a period of ten years.
section 376AB states that any person, who is guilty of committing rape against a female under the age of twelve years of age, will be liable for a fine and life imprisonment. while the maximum punishment in such cases can result in death penalty for the culprit.
Supreme court in the case of Parents Forum for Meaningful Education v Union of India, concluded that corporal punishment violated the Constitutional right to life. ‘It seems to us that imposition of corporal punishment on the child is not in consonance with his right to life guaranteed by Article 21 of the Constitution.’6
The delhi high court on its own motion v. state held that the stress of disclosing and receiving potentially negative responses from caregivers may lead some children to recant in an attempt to alleviate the stress. ‘Where children are concerned, the disclosure normally would tend to be a process, rather than a single incident or episode. It would take multiple interviews for an investigator or an interviewer to even establish trust in the mind of the child.’7
Analysis
Whether current provisions are sufficient to protect minors from domestic violence ?
Even though the present provisions have helped in securing the rights of minors against domestic violence to an extent, they are sufficient to condemn the evil. There is a necessity for stringent, stable and specific law to deal with the ill treatment of children.
Article 21 of the constitution of India provides for right to life with dignity and liberty. But it does not specify anything regarding protection of rights of minors from domestic violence.
Though the juvenile justice act provides punishment for cruelty against children, its main object and aim is protection of child or minor offenders in the juvenile justice board. The POCSO act punishes person only for sexual abuse against minor and the domestice violence against women act punishes offender for domestic violence against a girl child only.
Hence there is a need for the enactment of an exclusive Act for the purpose of protecting minors from domestic abuse. The act must deal with all forms of domestic violence against children keeping in mind the larger impact or effect of such violence on their personality.
Conclusion
The issue of Domestic violence and child abuse has suppressed many other issues prevailing in society. This issue becomes extremely disturbing in the country like India where the legislation has not enacted any Act to explicitly address the issue of domestic violence against children. Thus, the children of the country suffer from such maltreatment as there are no stringent laws which can protect them from the perpetrators of such ill activities.
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Written by- K R Bhuvanashri
References:
- Domestic violence against child – a severe crime ; law answer online
- World health organization ; who.int
- Juvenile justice (care and protection of child) Act, 2015
- Indian Penal Code, 1860
- POSCO Act, 2012
- Protection women from domestic violence Act, 2005
- Violence against children in India ; vikaspedia.in
