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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