Domestic violence || Shattering the popular narrative in India

By Mansi Walia

I was thinking to try the ‘Dalgona coffee trend’ while reading current headlines about covid-19. And there I came across A Report of The National Commission for Women (NCW), recording a more than twofold rise in gender-based violence.  The total complaints from women rose from 116 in the first week of March (March 2- 8), to 257 in the final week of March (March 23-April 1). Complaints of rape or attempted rape have risen sharply from two to 13, while cases of domestic violence have increased from 30 to 69 over the same comparative period. Amidst this lockdown when few of us are privileged enough to live comfortably, there exists a large section of society which doesn’t enjoy this privilege. And the women, victims of unnoticed domestic violence are the part of that underprivileged section. Unfortunately, when ‘staying home’ is the safest thing to do today, it’s definitely not safe for those women.

Whenever we hear or read the word “Domestic Violence”, the image of a man hitting on his wife forms in our mind. And yet when a woman raises her voice in public platforms about the serious issue of domestic violence against women, few concerned men are always ready to put forth their argument “men ALSO face domestic violence”. I wonder where does their activism go when a woman is not talking about domestic violence? Or perhaps this has now become like an autogenerated response. The issue of domestic violence against men is as serious as other forms of domestic violence, but assertion of one fact cannot deny the existence of another. The issue of Violence against women in domestic sphere cannot be countered with the issue of domestic violence against men. So, acknowledging both the issues actively rather than passively asserting that "men ALSO face domestic violence” can be a better approach in addressing them.

Well traditionally, Violence against women is manifestation of the historically unequal power relations between men and women which have led to domination over and discrimination against women by men and to the prevention of women's full advancement.

Domestic violence is considered a very private matter in our society and thus it is being socially tolerated as a routine. Interference into 'domestic privacy' has traditionally been seen as a greater evil than actual violence inflicted upon a wife. And all this is a result of patriarchal society, wherein men have privilege over women and thus, they use all means to maintain this privilege or to be dominant upon them. Domestic violence is one of those means, rapes, acid attacks, female feticide, etc. being others.

   

The recent Bollywood release “Thappad”, subtly portrays the issue of domestic violence against wives by husbands In India. Domestic violence need not be slapping, kicking, biting, punching, stabbing, always; mere verbal abuse to the extent of torturing a woman or even financial abuse is included in domestic violence. Also, domestic violence doesn’t need more than one instance of abuse, even a single instance of it qualifies to become the offence of domestic violence. The significant aspect of domestic violence involves the dominion of men over women and dependence of women on men, which is the enabling factor leading to domestic violence generally.

 Domestic violence is a broad term that varies from relationship to relationship and includes various forms. For example, it includes

• Domestic violence against wife by husband;

• Domestic violence against daughter in law by relatives of husband (mother, father, brother, sister, etc);

• Domestic violence against husband by wife;

• Domestic violence against son in law by wife’s relatives;

• Domestic violence against elders of family by their son/daughter/ daughter in law, grandchildren;

• Domestic violence against domestic helpers;

• Domestic violence against children, by parents/foster parents, siblings, relatives, etc;

• Domestic violence among homosexual couples;

• Domestic violence against surrogates; among others.

In 2019, more than 32.6 % of crimes against women in India were accounted under “cruelty by husband and relatives” (National Crime Records Bureau 2019). It includes women being convicted for inflicting violence on other women within the extended family.

But we hardly imagine or think about these cases! For me one of the reasons is quite obvious, i.e. patriarchal structure of society.

Now, the popular patriarchal notion of domestic violence considers women as constant victim of domestic violence, but acknowledging the fact that other situations do exist as mentioned above, can we think of it as any abuse committed in a domestic sphere or is it still a gender-based tragedy?

Well, depending upon the type of abuse caused upon the other person and the type of relationship existing between the attacker and the victim, we can answer this question.

 As stated above the significant aspect of domestic violence involves the domination and dependence; and generally, it is a woman dependent upon man. But it is not always so, and that is why other types of domestic violence exist. Dependence can be financial, emotional, sexual or otherwise and domination can stem out due to patriarchy based societal norms, cultural patterns, traditional practices, economic independence, etc. So, who’s going to be a victim and attacker depends upon who’s in dominating position and who’s dependent. For example, in case of domestic violence against elder family members, the elder family member owing to their financial and physical vulnerability are dependent on their children/ grandchildren. And here, gender hardly plays any role in case of domestic violence upon them. Right?

Domestic violence can include and is not restricted to merely physical violence, Verbal abuse, sexual abuse, mental and emotional abuse, financial abuse and so on. Infliction of physical or other form of violence coupled with sexual abuse or even sexual abuse merely constitutes domestic violence and here’s when it becomes a gender-based tragedy.

Domestic violence apart from being a form of violence against women is also a violation of the basic human right of women. In India, commencing from Preamble of our Constitution, various central and state enactments proposed and amended to improve the status of women and also to eradicate domestic violence. The Judiciary has contributed in its various decisions which have plugged the loopholes of the legislations. Tolerance of violence offends the principle of equality and dignity. Article 21 confers the right to life and liberty in negative terms, stating that it may not be taken away except by procedure established by law, which is required, as a result of judicial decisions, to be fair, just and reasonable.

 The right to life has been held to include the following rights (which are reflected in the Act), among others:  The right to be free from violence:

In Francis Coralie Mullin v. Union Territory Delhi, Administrator and the Supreme Court stated, any act which damages or injures or interferes with the use of any limb or faculty of a person, either permanently or even temporarily, would be within the inhibition of Article 21.

Article 15 specifically prohibits discrimination on the ground of sex.  Article 15 (3) lifts that rigour and permits the State to positively discriminate in favour of women to make special provisions to ameliorate their social condition and provide political, economic and social justice. Invoking Article 15(3) the state has enacted the special statutes in favour of women. To summarise and analyse the legal remedies available to a woman against domestic violence- the act and actor, we can categorise crimes as under:

Crimes under IPC – Section 498A-. This section punishes a husband or a relative of the husband of women who subjects her to cruelty so as to protect the wife from being subjected to torture by the husband or his relatives.

Dowry is the most common cause of domestic violence against women. Due to the increasing menace of dowry deaths/suicides, a new section i.e., Section 304-B is inserted into the Indian Penal Code, 1860 and for presumption as to dowry death section 113-B is also inserted into Indian Evidence Act, 1872.

 Under these provisions the guilty will be the man and will be convicted on a sentence. It is to note that IPC does not give any visible remedy to the victim. It is to note that the punishment to the husband will not be a remedy, on the other hand the situation may aggravate and woman would suffer more.

 Remedies under personal laws- The personal laws provided for quantifiable matrimonial remedies." All these remedies arise against domestic violence of the husband; it is notable that the wife is the beneficial suitor throughout. Under the family laws remedies are equal to the spouses.

Enactment of Dowry Prohibition Act- Practically, dowry is the root cause for domestic violence. Women have suffered and suffering to an in explicable extent due to dowry. The problem with this statute is similar with IPC that is to say, punishment clause sends the perpetrator of the offence to imprisonment, but it cannot provide any other remedy. The consequential effects are,

• She has already suffered violence,

• Breakdown of matrimonial home,

• Development of vengeance in the minds of husband and the family members thereby.

Protection of Women from Domestic Violence Act- There was a need to enact a new law to give answer for these lacunae of Dowry Prohibition Act. Hence Protection of women from Domestic Violence Act, 2005 was enacted.

 A woman witnessing a domestic violence can approach the judiciary to avail the remedy available under different laws accordingly. Under the personal laws, remedy for cruelty meted out to the wife by husband is normally divorce and the institution of marriage thus breaks. Under the Criminal law the accused gets punishment and there cannot be any chance of reconciliation. But on the other hand, there is more scope for sustenance of institution of marriage and at the same time the aggrieved gets the required remedy under the Protection of Women from Domestic Violence Act, 2005.

Having talked extensively about the domestic violence against women and relevant laws available, one question still remains unsettled. How many women do these laws include or how many women are included in statistical reports concerning domestic violence? Do the abovementioned reports include domestic violence among lesbian couples? and Do we include those women in our picture of domestic violence? Do we include elder women being abused or female domestic helpers suffering abuse in this picture? Does the IPC or abovementioned legislations apply to lesbian women, surrogates, domestic helpers, and alike?

Now it becomes crucial to think about these questions because they are unrecognised and silent sufferers of domestic violence who do not even have the recourse to Special legislations or provisions concerning Domestic violence. Our ignorance and apathy towards the more vulnerable women suffering domestic violence is the reason why we need to shatter popular narratives of domestic violence. With changing times, narratives of domestic violence have also changed and it is high time we recognize them.

In my next article I’ll try to explore these changing narratives; and in the mean time if you think I’ve missed any important type of domestic violence or aspect of it, your comments and suggestions are welcomed.