Month: June 2015

Domestic Violence and Divorce laws : A brief study on difference between the UK and India

Marriage & Divorce

Domestic Abuse laws and their Enforcement in the UK: Lessons for the Indian Society in the context of Domestic Violence (DV) laws misuse in India

Factual summary

  1. Domestic Violence (DV) in the UK is defined as, “​a​ny incident of threatening behaviour, violence or abuse (psychological, physical, sexual, financial or emotional) between adults who are or have been intimate partners or family members, regardless of gender or sexuality”.
  2. The definition is wide covering all forms of abuse, and victims of abuse are identified as both men and women as well as those in the same sex relationships.

Criminal Procedures

  1. Physical violence between partners in relationships is prosecuted as per the common law. Therefore, any cases of alleged assault or abuse would be reported to the police. While DV cases are handled by the specially trained officers within each police force, other procedures are no different from other instances of such crime.
  2. Sexual violence too is dealt with as common law crime. The exemption for marital rape was abolished in 1991.
  3. A police complaint of any incident of domestic abuse is investigated promptly. It is common for the police to arrest the alleged defendant within 24 hours. Any police arrest in Europe is governed by Article 5 (Right to Liberty) of the European Convention of the Human Rights (ECHR). The police cannot keep anyone in custody for longer than 36 hours. The investigating officer would obtain details of the detainee including finger print marks, etc and conduct a taped interview. The defendant has Miranda rights, and right of a solicitor during the taped interview. The investigation team would prepare a report that is put before Crime Prosecution Service (CPS), who would then make a decision whether or not to charge within the 36 hours time limit. In UK, there is no concept of the victim choosing under which law does she wish to file a complaint under. The victim narrates the alleged offence, and it is the police/CPS who decide what to charge the defendant for.
  4. CPS will charge a defendant if they have “​reliable and credible evidence enough to produce a realistic prospect of conviction in the court”. I​f the defendant is charged, in most DV cases, other than say homicide or serious grievous bodily harm, the defendant would be released on bail until the court trial. In case the defendant is not charged, which implies that the police does not have the required evidence, then the police would either discontinue the investigation declaring no further action, or ask for more time to conclude the investigation and build a case, in which the defendant would again be released on bail until the investigation is complete. The investigation is usually always completed within 2-3 months.
  5. Both the pre-charging and post-charging bail conditions would almost always include a restraining order, disallowing any physical contact or any direct or indirect communication by whatsoever means, between the victim and the defendant. There is usually no monetary bail deposit or any impounding of property unless there is a clear evidence of risk of flight.

Discussion in context of Indian laws and their enforcement

  1. “Domestic” element not special: While there is social and political hysteria around domestic abuse, however other than a few practice guidelines for the police, there are no separate laws, very different from similar violence say between the strangers. So for example if your wife has slapped you, then she will be prosecuted in the same way as if your wife had slapped a stranger in a bus, ie for common assault, or if she has broken a glass bottle on your head, then she will be prosecuted for Grievous Body Harm (GBH) in the same way if she had broken a glass bottle on head of her colleague in the office, and so on. There are no separate laws or separate penalties for any conduct within the relationship, different from such conduct outside of relationship. Basically, it is a common sense law.
  2. Gender Neutrality: The laws are gender neutral. In terms of police statistics, while there are more alleged female than male victims, the ratio is 65:35. It is widely recognised that male victims are less forthcoming in filing a complaint and therefore 65:35 ratio may not reflect the reality of such crime that is expected to be 50:50. [This is in complete contrast to India where male DV victims have little to no provision of any relief. The female to male ratio of police complaints is likely to be worse than 99:1]
  3. Non-corrupt enforcement agency: The police conducts a prompt and fair investigation. Therefore while a defendant still may feel abused for being wrongly arrested in false case, it is made clear that the purpose of the arrest is genuine fact finding by the police (and later by the courts, if charged) rather than a tool of harassment. In 25% of all DV complaints, the police takes no action at all, i.e does not even arrest the defendant. They may contact the defendant and ask him a few questions in such cases and then decide to take no further action. In 57% of the DV complaints, the defendant is arrested and then released without charge or with a verbal warning by the police. Only 18% of all DV complaints lead to a charging decision. Therefore, in 82% of all complaints, the police and CPS actually refuse to take the matter to the Court for trial. While the final conviction rate in the UK of around 10% is actually more than the 2% conviction rate in India, the harassment suffered in the UK for false cases is far, far lower.
  4. Custody time limits: As explained above, it is rare for anyone to be in police custody for longer than 36 hours, even if the CPS makes a charging decision until the trial. There is no concept of languishing in jails for months and years as in India.
  1. Non-involvement of family members: There is no provision of family members being arrested unless there is clear evidence of abetting serious crime that includes homicide or grievous bodily harm.
  2. Restraining orders as part of bail conditions: The alleged victim or his/her family are not allowed to have any contact or communication whatsoever, even indirectly through a third person, with the alleged perpetrator. Unlike India, there is no concept of “mediation” in a criminal matter. This provision entirely takes away any scope of extortion through filing of false cases.
  3. There is provision of prosecution of false cases in the UK as Perverting the Course of Justice. However the threshold of such prosecution in the case of rape and DV is kept very high to encourage the genuine victims of such crimes to come forward without fear of prosecution if they are not believed. Therefore it is rare for CPS to charge false complaints. However if the police investigation leads to conclusion of clear false complaint, the complainant is given a verbal or written caution by the police for wasting the police time.

Why are false cases filed in the UK then?

  1. For young, unmarried partners: As a short term harassment tactic, which is no different from false complaint of any common law crime.
  2. For married or long term cohabit partners: Abuse the restraining order element of the bail conditions to bolster the claim over matrimonial home and child custody matters in any subsequent civil proceedings between the parties.

Discussion of differences in social-legal structures between the UK and India

  1. Significant hurdles to obtain divorce on a so-called no fault basis in India: In UK, Divorce is filed in a civil county court under the Matrimonial Causes Act 1973. The financial settlement consisting of any lump sum upon separation, and spousal maintenance is decided as part of the civil proceedings by a single judge court. Child maintenance is covered under the Child Support Act 1991, and in summary implies that the non-resident parent pays 15% of their monthly income to the resident parent for one child, that goes up to 25% for two children. 

Editor’s Note: While Divorce can be a painful experience for both husband and wife, in India, Divorce leads to immense distress In India because first – the society does not understand the concept of parting ways if you are not happy with each other and second – the laws for divorce are so stressful and cumbersome (if it is not mutual) that you would rather spend life with a person who you do not like/suffering with rather than fighting a battle in the court to find peace. In my personal opinion, this is also a reason for many people not honouring their partners and the relationship because they look outside when they are not happy inside of a marriage.  While a divorce is painful for anyone, it is ‘dangerous’ to say the least for a man in India. A plethora of criminal, civil cases combined if you file for divorce where your entire family pays the price (of the husband), can take quite a toll on your life. The intent of this article is to draw a comparison between laws in UK vis a vis India. The article above is a personal study shared by an Indian man who is battling a divorce in UK and Indian Courts. The idea is – while we have brought several laws from west and other countries without looking at the judicial setup in India, we have absolutely forgotten that the laws over there do not inflict injustice on one gender in the name of justice to another gender…..

What is pertinent to note here in Indian context is also the fact that those NRIs (husbands) who face a broken marriage with an Indian partner, more often than not end up fighting several court battles in their own country (divorce and compensation) while also facing litigations in form of IPC 498A, Domestic Violence Act and several other cases in India.

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TedxGatewayWomen and the unforgettable experience…..

It was sometime in beginning of April when I got a call from TedxGatewayWomen inviting me as a Speaker. I thought they had called me by mistake. I asked if they knew about my work and they said yes! Knowing how men and women who speak up for justice for men are treated around the world, particularly by women, my first reaction to this conference was a NO. To be honest, I did not know the organizers at all and was apprehensive that this might be a ploy by people who hate me for what I do and probably an opportunity for them to ridicule me publicly while I am speaking on a stage in order to dampen my spirits (Yes some famous women rights activists who hate me to the core, have indirectly communicated that I better stay in my limits) for mere fact that I speak for a gender that people do not want to hear about!

So, I asked the organizers again if they were sure of getting me on a platform as big as theirs. I wasn’t concerned about my content but I was concerned about their event and least that I wanted was an event of such a grand scale facing any difficulties because of me. I proposed if they would want to keep my name as a speaker hidden lest any of their other speakers opts out because of my participation (Something similar has happened to a known before.)

To my surprise they were surer than I was. I spoke to people who I look up to and truly admire and they asked me to go for it. That’s when a journey that I would cherish for life started.

The sessions with Coach Vikram….

The rehearsals with the TedxGatewayWomen team….

That reworking again and again and again on the language, postures, pauses…

That making everything sound and appear utmost professional….

The hard work, the pain and the sweat… (sometimes literally as it was HOT ;))

It wasn’t easy BUT….

The whole exercise of bringing down your entire knowledge to a sharing of just 10 minutes; The idea of enrolling the audience into what you are sharing; The idea of being the medium, the messenger and making the world feel what you feel ; The storytelling and making it the most powerful story in the world; The process of not being emotional but still letting everyone feel the emotions behind it; The never ending support; The absolutely brilliant conviction of everyone around me in me; Those pumping me up calling me a rock star every time I felt low; That sheer satisfaction whenever I completed within the time without missing anything; That care making sure I had everything I needed and did not have to worry an iota about anything…..

TedxGatewayWomen was mesmerising.

An experience for life! More than anything else a realization that every fine piece of work has hours and hours of practice behind it. And when you do that, outcome is for everyone to see.

My inhibitions, my apprehensions, my fears were all gone when I got a standing ovation for a topic that was completely away from standard lines and which is often misunderstood as anti-women. I had tears in my eyes when everyone stood up. It was an emotional moment. Talking in front of a 1000 people in itself is a daunting task, to get such an applaud – nothing short of a dream. I was moved when an old uncle came up to me and bowed his hands, an old aunty hugged me and cried inconsolably and said that she knows the pain. I was no one to them but they felt me as them. I was moved when people came and shared they want to do something about the situation. I felt great when people came to me and said they would encourage students to take up research work on this subject!

I was humbled that many people shared their own personal stories of pain with me which they had not shared with anyone. In fact most of the people I met in this journey had one own story of a friend/cousin/colleague suffering law abuse. They understood what I stand for and were so much in support that it overwhelmed me.

The radio Interview with Hrishi K on 94.3 RadioOne discussing stories of misuse of 498A was a great experience too. The response to the show was great on social media and in real – as the SIFONE helpline started getting calls immediately thereafter 🙂

I am happy that people are finding strength to speak up and I am making a difference whatever tiny little bit I can. TEDxGatewayWomen is an experience I would hold very dear to my heart – a lot because of the truly amazing people I met on this journey – a lot because of the honest souls who stood by me and a lot because I took one more step towards taking voice of those who are never discussed to many hearts once again!

Words are less to convey my gratitude to the entire team – Vikram (my rock star coach), Yashraj, Sneha, Shruti, Meghna, Shivani, Akshara, Dhairya, Aagam, Prathmesh, Rajna, Sonam, every intern who helped me, every volunteer who took care of things I needed.

Thanks for asking me for those extra rehearsals. Thanks for working with me constantly and improving tiny little bits in the speech. Thanks for giving me a hug every time I felt unsure. Thanks for bringing a smile on my face with your smiles. Thanks for investing your faith and trust in me. Thanks for everything you did for me in those three days…All you people were just fantabulous! It would JUST NOT have been possible without you! You all contributed to who I was on the stage on….

May 29, 2015!

To all those who have been with me in this journey since the beginning till now – my heart says thanks to you always! You are Special and please know that even if I don’t tell you often 🙂

To God, To Brent Sir and To my Family……you make me who I am! Thanks !!!

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