Author: Anushtha Saxena

Domestic Voilence A Curse In The Society-A GLOBAL EPIDEMIC

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Women is a unique creation of God understanding, hardworking, full of compassion holding high level of initiative and a trend setter for progeny inspite of these qualities the women have never been treated at par with the men . She has faced and is facing discrimination, exploitation and violence from time immemorial.Violence against women and girls continues to be a global epidemic that kills, tortures, and maims – physically, psychologically, sexually and economically. It is one of the most pervasive of human rights violations, denying women and girls’ equality, security, dignity, self-worth, and their right to enjoy fundamental freedoms.

After independence have seen tremendous changes in the status and the position of the women in the Indian society. The constitution of India has laid down as afundamental right- the equality of the sexes. But the change from a position of utterdegradation of women in the nineteenth century to a position of equality in the middle of the twentieth century is not a simple case of the progress of men in the modern era. The position of women in the Indian society has been a very complicated one. In fact, it could not be an exaggeration to say that the recent changes in the status of women in India is not a sign of progress but it is really a recapturing of the position that they held in the early Vedic period. The Declaration on the Elimination of Violence Against Women, adopted by the UN General Assembly in 1993, defines Violence Against women as “any act of gender-based violence that results in, or is likely to result in, physical, sexual or psychological harm, or suffering to women including threats of such acts, coercion or arbitrary deprivation of liberty; whether occurring in public or private life”.It could be seen that despite the totalliteracy and global model of development, Kerala tops the list inDomestic Violence, according to the survey conducted by ICRW. Domestic violence is to be perceived not as a law and order problemalone. Primarily it is a socio cultural problem. Its impact has farreaching effects on the family life, health of woman, life of children etc.Studies such as these which examine the causes, its nature andmanifestations and consequences would assist the general society tounderstand the magnitude as well as its implications on the lives as wellas the institution of family.According to the National Victims Centre, one woman is raped every minute, and 30% of all women murdered in this country are murdered by their boyfriends or husbands.

 

WHAT IS DOMESTIC VIOLENCE?

 

Article 2 of the UN draft Declaration of Violence against womenidentifies three areas in which violence commonly takes place. They are:

a) violence occurring within the family

b) violence occurring in thegeneral community and

c) violence perpetrated or condoned by thestate.

Earlier victims of domestic violence did not lodge complaints, as they feared that suchcomplaints might create a hostile home environment. Very often, women used to endure the violence towards them in silence for fear ofrepercussions. In spite of the extreme physical andpsychological violence meted out on many women, they do not seekdivorce, as they feel their trauma and that of their children is too great aprice to be paid instead. Thus to a great extent she accepts domesticviolence as part of her family life. The National Family Health Survey(NFHS-2) findings released at the end of the year 2000 points out thisfact. Although no direct link has been established, the survey revealsthe extent to which women lack autonomy, even as more than50percent justify, or accept violence within the home.

Domestic violence is a global issue reaching across national boundaries as well as socio-economic, cultural, racial and class distinctions. Domestic violence manifests as verbal, physical or psychological abuse often in forms that are more subtle than violence elsewhere in the society.“Domestic violence is not simply an argument. Abusers use physical and sexual violence, threats, emotional insults and economic deprivation as a way to dominate their victims and get their way”.

The Protection of Women from Domestic Violence Act, 2005 says that any act, conduct, omission or commission that harms or injures or has the potential to harm or injure will be considered domestic violence by the law. Even a single act of omission or commission may constitute domestic violence – in other words, women do not have to suffer a prolonged period of abuse before taking recourse to law. The law covers children also. Even in the United States, it has been reported that 85% of all violent crime experienced by women are cases of intimate partner violence, compared to 3% of violent crimes experienced by men.

INCIDENCE OF DOMESTIC VIOLENCE

The insult of women through abusive language is reported to be continuing among 41.3% of women of Orissa, where as 23.8% of women reported that they were experiencing daily. The World Health Organization reports that the proportion of women who had ever experienced physical or sexual violence or both by an intimate partner ranged from 15% to 71%, with the majority between 29% and 62%. National Crime report of 1991 reveals that in every 33 minutes one Indian woman is being abused by her husband. It also reveals that in 1989 one dowry death occurred in every 125th minute. In 1990, 91, 92 And 93 the figures were 109th, 102nd, 106th and 90th minute.

India’s National Family Health Survey-III, carried out in 29 states during 2005-06, has found that a substantial proportion of married women have been physically or sexually abused by their husbands at some time in their lives. The survey indicated that, nationwide, 37.2% of women “experienced violence” after marriage. Bihar was found to be the most violent, with the abuse rate against married women being as high as 59%. It was followed by Madhya Pradesh (45.8%), Rajasthan (46.3%), Manipur (43.9%), Uttar Pradesh (42.4%), Tamil Nadu (41.9%) and West Bengal (40.3%).The National Crime Records Bureau has recorded an increase of 40% in the case of social harassment, and 15.2% in cases of dowry deaths.

 

DOMESTIC VIOLENCE AND ITS IMPLICATIONS

Violence not only causes physical injury, it also undermines the social, economic, psychological, spiritual and emotional well being of the victim, the perpetrator and the society as a whole. Domestic violence is a major contributor to the ill health of women.

It has serious consequences on women’s mental and physical health, including their reproductive and sexual health. These include injuries, gynaecological problems, temporary or permanent disabilities, depression and suicide, amongst others.In several places of India, violence faced by women on a regularly basis goes unreported even in newspapers.

If For example, women who were subject to violent attacks during childhood are bothered by menstrual problems and irritable bowel syndrome in later life. Studies in the northern state of Uttar Pradesh have also shown that unplanned pregnancies are significantly more common among wives of abusive.Besides this, research has shown that battered women are subject to twice the risk of miscarriage and four times the risk of having a baby that is below average weight.

 

MEASURES TAKEN TO GIVE PROTECTION TO WOMEN

Women must organise themselves in groups and raise a collective voice against a system that turns a blind eye towards. If not actually condones, violent acts against women.

Every public minded person and the media must contribute to spreading a civilised attitude in society.

United effort can certainly create a public opinion and outcry against situations when women are humiliated by public officials or others with their connivance- this has been witnessed recently in the Saharanpur incident.

Women too have to be persuaded to become aware of their rights and stand up for them. For the more they retreat inside their shell the more ready are the predator’s outsides to seal that shell and suffocate the very life out of them.

Women most help themselves and each other in the fight against violence. But it is in fact a social issue that affects many others and the system as a whole. In a democratic polity and society violence against any section cannot be condoned.

The courts are expected to be sensitive in cases involving crime against women. The verdict of acquittal made by the trial court in the case is an apt illustration of the lack of sensitivity on the part of the trial court.

Women in India are subject to violence not only from husbands but also from members of both the natal and marital home. Girls and women in India are usually less privileged than boys in terms of access to material resources. Nevertheless, there are regional and community variations. Women in the north have relatively less autonomy than their counter parts in south, and experience fewer opportunities for control over economic resources (Karve 1965).  In India comprehensive household data on the prevalence and costs of  domestic violence were lacking. The multi-site study by the International clinical Epidemiologists Network (INCLEN) is a pioneering effort to estimate comparable rates of violence within and across for countries: India, Chile Brazil, Egypt and Philippines. The multi-site household survey conducted by INCLEN was a part of the 3 year research programme conducted by the International centre for Research on Women (ICRW) on Domestic violence in India (1997- 2000) in partnership with researchers from a range of Indian academics and activist organisations.

In terms of economic loss due to domestic violence, a Canadian study showed that the total cost to abused women and to government due to domestic violence was more than $3.2 billion in 1993 (Greaves, Hankisky, and Kingston – Richers 1995).As many as 22 cases of domestic violence have been reported till February 13 this year. Jan 24 to be declared ‘girl child day ‘NEW DELHI: The UPA has chosen to ride on the memories of India’s first woman prime minister in declaring January 24 as the girl child day. Women and child development joint secretary Kiran Chadha said the decision was taken by the Union Cabinet recently. “We found that girl child day is celebrated on different days by different countries. The Cabinet made the final decision,” she said.

 

Focus on women’s rights

MYSORE: Though 75 per cent workforce in most industries in the country is led by women, their total earning is just 2 per cent.

393 cases solved at loknyayalaya

PUNE: As many as 393 cases were settled and compensation of over Rs 37 lakh was awarded at the loknyayalaya organised by the Pune district legal services authority (PDLSA) at the district and sessions court on August 21.

Meena Kumari, protection officer of women cell, women and child welfare department, said, “With the commercialisation of weddings in the region, people have become greedier. Several non-government organisations and groups of women have come forward to help a victim whenever there is an indication of domestic violence.

Within the last few decades, a gradual improvement in women’s status due to women’s activism in various parts of the world has helped slowly to increase the visibility of domestic violence as a social problem. Despite this, violence against women within the family/home, until very recently has received little attention as either a social or public health issue. The sensitivities and stigma associated with domestic violence, the perception that it is primarily a judicial and legal issue, and the lack of data on the dimensions of abuse, have hampered understanding and the development of appropriate interaction (Heise et al. 1994), Research to address these obstacles has begun to make a difference. It would be an elementary step in bringing together the victims of domestic violence under one umbrella and fight against this vice that breaks down the bonds that exists within the primary institution of the society i.e.; the family and thereby make efforts to formulate appropriate measures/strategies that could contribute to the minimization of domestic violence and uphold their rights before the society.

A few days ago when the tribal women of Andaman were made to strip and dance for money, on camera, there was a mild uproar all over. Maybe not all over, but definitely on the news channels, facebook and twitter. Just yesterday a20-something woman was beaten up mercilessly by Punjab police, for selling liquor without license. My guess is that, she wouldn’t have been beaten up in public had she given him a bribe, in cash or kind. Again, an onlooker recorded this instead of helping her.

A few days ago a 19-year-old was gang raped in Odisha and today she has very little chance of recovering despite treatment. The above mentioned women are unnamed. Also unnamed are the hundreds of female foetus that are aborted even before they begin to take human shape!

Investigations by Human Rights Watch have found that in cases of domestic violence, law enforcement officials frequently reinforce the batterers’ attempts to control and demean their victims. Even though several countries now have laws that condemn domestic violence, “when committed against a woman in an intimate relationship, these attacks are more often tolerated as the norm than prosecuted as laws….In many places, those who commit domestic violence are prosecuted less vigorously and punished more leniently than perpetrators of similarly violent crimes against strangers.”

FOOTNOTES:-

National centre on elder abuse. Washington DC: 2005. Fact Sheet: Domestic violence.

RennisonCM. “HYPERLINK“http://www.ojp.usdoj.gov/bjs/pub/pdf/ipv01.pdf” \o “http://www.ojp.usdoj.gov/bjs/pub/pdf/ipv01.pdf” Intimate Partner Violence, 1993-2001″ Bureau of Justice Statistics. 2003 NCJ HYPERLINK “ http://www.ncjrs.gov/App/Publications/abstract.aspx?ID=197838” \o “ http://www.ncjrs.gov/App/Publications/abstract.aspx?ID=197838” 197838.

3. WHO. Multi country study on Women’s health and domestic violence against women. Geneva: World Health Organization; 2007.

4. WHO. Domestic violence: A priority public health issue in western Pacific region. Western Pacific Regional Office. 2001

5. Martin SL, Kilgallen B, Tsui AO, Maitra K, Singh KK, Kupper LL. Sexual behaviors and Reproductive health outcomes: Associations with wife abuse in India. JAMA. 1999; 282:1967–72.

6. TIMES OF INDIA

7. THE HINDU

 

Abuse of process is a cause of action in torts

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Abuse of process is a common law intentional tort. It is a cause of action and arises when one of the parties makes a misuse of legal proceedings civil or criminal which are not justified by the nature of process. The courts have named four torts involving the misuse of litigation. These are: malicious abuse of process, malicious use of process, malicious prosecution, and abuse of process. Malicious abuse of process and abuse of process are same torts they are different in name only. An abuse of process occurs when a person misuses a legal process after the litigation has commenced. On the other hand, a cause of action for malicious prosecution is based upon the malicious initiation of litigation. The pivotal issue in determining abuse is whether a plaintiff has an ulterior motive for filing a civil suit against the defendant. For example, if a creditor files suit for a debt owed when the real reason is to force the debtor to pay off another unrelated debt, that’s an abuse of process. Other examples would include filing a civil action when the ulterior purpose is to extort money or other property or using the legal process solely to harass, intimidate or inconvenience someone else.

1. For example, malicious prosecution might occur where A sues B for breach of contract, knowing that there was no breach. On the other hand, abuse of process might occur where, during the course of the breach of contract proceedings, A has arrested B and put in jail, intending to coerce a larger settlement from B.

2. Another example is if A caused B to be arrested and jailed for a debt, knowing that B owed no such debt, B would have an action for malicious prosecution. Further, if as a condition for B’s release, A extorted certain property from B, B would also have an action for abuse of process.

 

 The elements for abuse of process are:-

1.An ulterior purpose – The first element, ulterior purpose, usually consists of coercion to obtain a collateral advantage, not properly involved in the proceeding itself, such as the surrender of property or the payment of money with use of the process as a threat or a club.

The ulterior motive was established directly in COPLEA V. BYBEE. Here the plaintiff proved that the defendant levied on and sold property which was not properly subject to levy and sale. The plaintiff further proved that the defendant’s purpose in obtaining the illegal levy and sale was to affect the sale of the property rather than to fulfil the claim that he had against the plaintiff. This illicit purpose constituted the defendant’s ulterior motive.

2. A wilful act in the use of process not proper in the regular conduct of the proceeding. -The second element involves an overt act, but actions taken in the regular course of litigation, such as threatening suit or requesting discovery, are not a proper basis for an abuse of process claim even if done with an ulterior motive.

3. The plaintiff must also prove that such civil proceedings have interfered with his liberty or property or that such proceedings have affected or are likely to affect his reputation. The plaintiff must establish that he suffered damage.

Process as used here , includes not only the “service of process,” i.e. an official summons or other notice issued from a court, but means any method used to acquire jurisdiction over a person or specific property that is issued under the official seal of a court. The person who abuses legal process is interested only in fulfilling some improper purpose that is collateral to the proper object of the process and that offends justice, such as an arrest which is not justified or an unfounded criminal prosecution.

 

WHAT IS ABUSE OF PROCESS?

 

The principles which lead to a finding of an abuse of process in the UK were stated in JOHNSON V. GORE WOOD & COBY by Lord Bingham. The law says that a case should come to an end and also no person shall be vexed twice in the same matter. This also emphasis on public interest. Lord Bingham said “ I would not accept that it is necessary, before abuse may be found, to identify any additional element such as a collateral attack on a previous decision or some dishonesty, but where those elements are present the later proceedings will be much more obviously abusive, and there will rarely be a finding of abuse unless the later proceeding involves what the court regards as unjust harassment of a party. It is, however, wrong to hold that because a matter could have been raised in earlier proceedings it should have been, so as to render the raising of it in later proceedings necessarily abusive. That is to adopt too dogmatic an approach to what should in my opinion be a broad, merits-based judgment which takes account of the public and private interests involved and also takes account of all the facts of the case, focusing attention on the crucial question whether, in all the circumstances, a party is misusing or abusing the process of the court by seeking to raise before it the issue which could have been raised before.”

Abuse of process is defined as a misuse of a validly issued process. It is, therefore, important to understand the impact of the term, “valid process.” “Process” refers to procedure. For e.g., “Process” is the means through which a court compels appearance of a party. The broad construction of the term “process” is illustrated by the case of SPELLENS V. SPELLENS In Spellens a wife brought an action seeking separate maintenance. Subsequently, the husband initiated a separate action to recover possession of certain personal property. The husband offered to discontinue his action if the wife would reciprocate. The wife cross-complained for abuse of process, alleging that the true purpose of her husband’s action was to coerce her discontinuance of the original action. In sustaining the wife’s claim for abuse of process, the court stated: The improper purpose of a misuse of a process usually takes the form of coercion to obtain a collateral advantage, not properly involved in the proceeding itself, such as the surrender of property or the payment of money.

The nineteenth century English case of GRANGER V. HILL was the first instance in which relief was granted for an abuse of process. In Granger the plaintiff borrowed money from the defendant, giving him a mortgage on plaintiff’s vessel as security. The plaintiff retained the registration of the vessel in his own name. Defendant attempted to collect the debt ten months before maturity. When the plaintiff was unable to pay, the defendant caused him to be arrested and jailed. As a condition for his release from prison, the plaintiff was forced to give up the registration of the vessel. In holding for the plaintiff and establishing abuse of process as a separate tort, the court said: This case is altogether distinct from cases of malicious prosecution or arrest in which it is always necessary to allege and prove the former proceeding is at an end. It is an action for abusing the process of law, by employing it to extort property to which the defendants had no right. That is of itself a sufficient cause of action without alleging that there was no reasonable or probable cause for the suit itself. Since Granger, abuse of process has been variously defined. In order to recover for abuse of process, a plaintiff must establish:-

(1)Defendant’s misuse of a valid process, properly issued by the court in the course of a legal proceeding,

(2) Defendant’s ulterior motive in misusing the process and

(3) Damage to the plaintiff as a result of defendant’s conduct.

 

Abuse of Process is an intentional tort of Misuse of Legal Procedure. Abuse of Process involves the knowing misuse of public access to courts. Tort law defines Abuse of Process as a misuse or perversion of the court procedure and due process without grounds for legal action. Process refers to the summons from the court. Abuse of process is the misuse of process regularly issued to accomplish an unlawful ulterior purpose.

 

DISTINGUISHED FROM MALICIOUS PROSECUTION

 

A cause of action for abuse of process is similar to the action for malicious prosecution in that both actions are based on and involve the improper use of the courts and legal systems. The primary difference between the two legal actions is that malicious prosecution concerns the malicious or wrongful commencement of an action, while, on the other hand, abuse of process concerns the improper use of the legal process after process has already been issued and a suit has commenced. In abuse of process, the legal process is misused for some purpose which is considered improper under the law.

The elements of malicious prosecution are:-

1. The plaintiff was prosecuted by the defendant.

2. The prosecution was instituted without proper and reasonable cause.

3. The defendant acted maliciously and not with an intention to carry the law into effect.

4. The proceedings complained of terminated in favour of the plaintiff.

5. The plaintiff suffered damage as a result of the prosecution.

 

In another case of GIRIJA PRASAD Vs. UMA SHANKAR PATHAK the plaintiff Uma Shankar pathak was a practicing advocate at Panna in M.P and he was also a Jan Sangh leader and had started an agitation on the question of food scarcity in the city and one Jan Sangh worker had gone to a hunger strike. On January 2 1965 Girija Singh a sub inspector was deputed outside the collectorate to control the crowd that had collected there to support the agitation. Then there were some bullet shots made from the revolver of the sub inspector. He stated that while he was grappling with some person who was assaulting him the revolver got fired mistakingly. On that date Girija Singh had lodged an FIR stating that he was assaulted by some person and his watch was snatched and also the plaintiff Uma Shankar pathak was present at the scene and was instigating the crowd against him .The case was investigated and the plaintiff was arrested on 15th jan and released on bail on 18th jan.He was finally acquitted on june 30th 1965 . The plaintiff then sued 4 persons for malicious prosecution , the sub inspector Girija Prasad who lodged the F.I.R. , the S.H.O. of that area who entertained the report and two other persons involved with the case.

It was found by the M.P. High court that the report prepared by Girija Prasad was false and at that relevant time the plaintiff was not present there but was appearing in front of a civil judge Justice Verma. Eventually Girija Prasad was held for malicious prosecution and others acquitted of the charge and not held liable for malicious prosecution.

In another recent case of VISHWESHWAR SHANKAR RAO DESHMUKH AND ANR V. NARAYAN VITHOBA PAT IL the plaintiff was the sarpanch of the village Shirputi in the year 1980 and the defendant no. 1 was in the service as a Gram sewak under the ZilaParishad and the defendant no.2 was a teacher in a school run by the ZilaParishad. The plaintiff contended that he made several reports against the defendants for their misconduct. The report was made against defendant no.1 for his misbehaviour, defalcation and forgery of accounts and also against defendant no.2 for his absence from duties and other irregularities. It is contended that both the defendants then hatched a conspiracy to involve the plaintiff in a criminal conspiracy and such that the defendant no.1 had lodged an F.I.R. with the police that was assaulted by the plaintiff while he was discharging his duties. On the basis of the F.I.R and investigation done by the police, criminal proceedings were launched against the plaintiff.. The plaintiff was acquitted of the charges against him. It is contended that on the basis of the F.I.R. lodged by the defendant no.1, plaintiff was arrested but the police and the criminal proceeding against him was with malicious intention on the part of the defendants. The prosecution was launched without any reasonable cause and due to the false prosecution, there was a loss to his prestige and reputation and his status was lowered down in the society being a sarpanch and a politician.

 

DECISION TAKEN BY THE COURT

 

The court decided that the plaintiff was maliciously prosecuted by the defendants without any reasonable and probable cause, and therefore they are liable to pay damages worth Rs 12,500.00 to the plaintiff.

A person who is prosecuted maliciously is usually entitled to recover damages from the person who instituted the malicious action. These damages are monetary damages. They include actual losses, and may include pain and suffering since the tort is an intentional tort.The tort of malicious prosecution exists because the courts want to protect an innocent party from being subject to harassing litigation. Otherwise, a person could use the court system or the threat of criminal or civil prosecution improperly. When the victim of an abuse of process proves that he was arrested or that his property was seized, he is allowed to recover all damages caused by the arrest or seizure.

 

CONCLUSION

Abuse of process is a legal cause of action that allows a person to seek redress against another who has deliberately used the legal process for an ulterior purpose or motive other than that for which it was designed. The essence of an abuse of process claim is that lawful process was perverted or used by an individual for an illicit purpose to intimidate, unduly burden or harm another.

To prevail in an abuse of process claim, a plaintiff must demonstrate that the defendant used the courts for an illegitimate or improper purpose and that misuse of the civil process has harmed him.

A cause of action for abuse of process is similar to the action for malicious prosecution in that both actions are based on and involve the improper use of the courts and legal systems. The primary difference between the two legal actions is that malicious prosecution concerns the malicious or wrongful commencement of an action, while, on the other hand, abuse of process concerns the improper use of the legal process after process has already been issued and a suit has commenced. In abuse of process, the legal process is misused for some purpose which is considered improper under the law.

Abuse of process is a common law intentional tort. It is a cause of action and arises when one of the parties makes a misuse of legal proceedings civil or criminal which are not justified by the nature of process. An abuse of process occurs when a person misuses a legal process after the litigation has commenced. In C.B. Aggarwal vs.P.Krishna Kapoor A.I.R.1995 DELHI 154 it was held that when legal process is abused it results in a tort and the legal process is abused when it is diverted from its original course just to achieve improper end. Thus it is a tort. In abuse of civil proceedings the plaintiff has to prove many things like malice i.e. the purpose was something other than to bring law into effect. Malice means wrongful and improper motive. The plaintiff must also prove that the defendant acted without probable and reasonable cause and that such proceedings have resulted in interference with his liberty or property or affected his reputation.

For example if the civil proceedings have resulted in arrest of the plaintiff or if they are in the nature of bankruptcy or proceedings they may adversely affect plaintiff’s reputation. Abuse of process is defined as a misuse of a validly issued process. It is, therefore, important to understand the impact of the term, “valid process.” “Process” refers to procedure. For e.g., “Process” is the means through which a court compels appearance of a party.

Each state establishes the statute of limitations period within which a person must file an abuse of process claim. The limitations period begins the day the cause of action happened, which is usually the date on which process was initiated against the aggrieved party. In most jurisdictions, the statute of limitations for an abuse of process claim is either two or three years.