Victimization of women and domestic violence in India: A realistic approach

Victimization of women and domestic violence in India: A realistic approach

 

Dr. B.N.Chhotroy

Sr. Lect. Jeypore Law College, Odisha

Dr. Sanjaya Choudhury

Asst. Prof. Global Institute of law, Tirupati, A.P

 

“From the cradle to the grave, Women are objects of violence from those nearest and dearest to them. And it is a never ending cycle for there is considerable evidence of intergenerational transmission of domestic violence.” M.D.R. Freeman ¹⁾mdr. Freeman, Volume in heme (1979) P.239

Introduction:

Domestic violence in its fullest sense describes a wide range of acts, which may include physical, sexual, psychological, emotional and financial abuse. It means domestic violence had different manifestation across the life span. The silent crime, domestic violence is rampant in Indian homes. The violence is so abusive that it forms the largest categories of crime against women. Broadly defined, domestic crimes relates to a wide range and non-accidental crimes committed by members of a family to another member of same family. Women have been victims of violence and exploitation by the male all over the world. It is an age old phenomenon existing globally both in developed and developing countries, women are still degraded to second class status that makes them more vulnerable to abuse. Domestic or family violence is a human right threat at woman. Today it is spreading like on epidemic to more and more homes. The NCRB reports state that: The incidence of domestic violence is growing at the alarming rate. It is also a hindrance in the path of development of our country. Though the constitution includes special provisions for the welfare of the woman and children but these provisions are helpless to raise the status of woman in the society. Every year thousands of cases related to domestic violence committed by their husband / in-law etc. are reported. At each stage of Life woman is subjected to one or the other form of violence for example, foeticide, infanticide, child marriage, sexual assault, dowry death, bigamy. Though each year on March 8 International woman day is celebrated with much fanfare but no policy makers seems to take into consideration the fact that the crimes committed against woman are unique in themselves and are mostly not proved under the existing provisions of law.²⁾Sobhagayana “wife Beating” – Need for affectives and resulte legislation” Evils June 2000, P-95

CONCEPT OF DOMESTIC VIOLENCE

Domestic violence usually involves the infliction of bodily injury, accompanied by verbal threats and harassment, emotional abuse one a person with whom the abuser is involved in an intimate relationship, Woman are victimized within the four walls of their own home and not by strangers but by the very persons in whom she places all her faith³⁾M.Shenoy, Domestic Violence Prospective, Avishkar , Jeypore 2007, P-4.

Domestic literally means pertaining to house hold affairs. According to Webstar’s dictionary domestic means belonging to the home or house. Violence means use of physical force so as to cause damage or injury. The term domestic violence means any act or conduct which has potential to injury or hurt women physically, mentally, emotionally, socially and also spiritually within the four walls and how ever such an act or conduct is usually not done by strangers. So domestic violence may be defined as violence between intimates living together or who have previously cohabited. Domestic violence is prevalence in all setting religion’s and religious group. Domestic violence is globally epidemic that kills, tortures and maims physically, psychologically, sexually and economically. Dowry death, abatement to commit suicide, cruelty, hurt, grievous hurt, wrongful confinement, marital rape, denial of food, turning a woman out of house passing of remarks personal confinement, restriction on mobility etc. are kinds of domestic violence faced by women.

Generally domestic violence is a violence that occurs within the family between the persons who are related through intimacy blood and the violence is perpetrated by man (i.e. husband, former husband, boyfriend etc.) with the active help of his parents and relatives against woman (i.e. wife, former wife, girlfriends etc.). Domestic violence differs with husbands, individuals and situation. Domestic violence could result in anything from minor scares to death.

The Lawyers collective women’s Right initiative, a Delhi based NGO working for women defines domestic violence as “any act, omission or conduct which is of such a nature as to harm or injure or has the potential of harming or injuring the health, safety or wellbeing of the person aggrieved to any child in the domestic relationship and include physical abuse, sexual abuse, verbal and mental abuse and economic abuse”

Domestic violence is a range of abusive behaviour (Physical, mental, sexual, economic and emotional abuse) perpetrated by one partner upon the other to gain and maintain control. It happens in the family, home and sometimes the children and other members of the family are involved too. In other words domestic violence is occurred when one partner in a couple violently or destructively towards the other. In the vast majority of cases, the violence is perpetrated by a man towards a woman. Domestic violence is not a genetic problem or an illness. It is a behaviour that is learned by repeated past observation which is then brought into force in the family upon a woman and her children.

VIOLENCE AGAINST WOMEN AN ANALYSIS

Violence against women is a global epidemic that kills, tortures, and maims physical, psychologically, sexually and economically. It is one of the most pervasive of human rights violations, denying women equality, security, dignity, self-worth and their right to enjoy fundamental freedoms. From birth to death, in times of peace as well as war, women face violence at the hands of the state, the community and the family.

Violence against women gets reflected in the crimes committed against them; and therefore, some idea of tends in violence against women can be made by looking into the available statistics of crime against women.

Source: Times of India Kolkata,, Saturday October 28, 2006.

The façade of societal grooming which has ingrained love and respect for the woman has been laid bare as Odisha has emerged a high incidence State in terms of crimes against women. Odisha ranks high in crimes against women nearly three women are being raped in the state every 24 hours. The dowry cases have risen stupendously.

According to the NCRB report, Odisha is placed eleventh in the list of states ranked as per crimes against women and has accounted for four percent of such incidence recorded nationally. The most disturbing fact is that nearly three women were being raped in the state every 24 hours. The cases under the Dowry prohibition Act have rising stupendously outscoring the national trend. With an increase of 25 percent nationally, Odisha alone accounts for one fourth of the cases. “Home sweet home” no more holds true for multitudes of victims of domestic violence in the state of Odisha. The following table shows the cases registered in the state women commission.

DOMESTIC VIOLENCE AND INTERNATIONAL CONVENTIONS

The 1948 Universal Declaration of Human Rights declared that everyone “has the right of life, liberty and security of person” (Article 3) and “no one shall be subjected to torture or to cruel, inhuman or degrading treatment” (Article 5).

On 18th Dec 1979, the United Nation’s General assembly adopted the Convention on the Elimination of All Forms of Discrimination Against Women, which carne in to force on Sep 1981. The Convention affirmed the principle of equality by requesting the state parties to take all “appropriate measures, including legislation to ensure the full development and advancement of women, for the purpose of guaranteeing them the exercise and enjoyment of human rights and fundamental freedoms on a basis of equality with man”. Article 2(b) of the convention requests the state parties to adopt appropriate policy to eliminate discrimination against women and to undertake “to adopt appropriate legislative and other measures, including sanction where appropriate, prohibiting all discrimination against women” and to establish legal protection of the rights of women. The Vienna World Conference on Human Rights 1993 acknowledged and affirmed the human rights of women as ‘inalienable, integral and indivisible part of human rights’ and thereby expanded the international human rights agenda to understand gender specific violations. The UN General Assembly in December 1993 adopted the Declaration on The Elimination of Violence against women. This Convention encapsulated the gender based violence, sex discrimination and inequality in particular. In March 1994, the Special Rapporteur on Violence against Women, its Causes and Consequences was agreed to be initiated as the first gender specific human rights mechanism by UN commission on human rights.” Again in September 1994 the international conference on population and development in Cairo asserted the importance of right to health including reproductive choices for women. The Beijing Declaration and platform for action was adopted in 1994 at the United Nations Fourth world conference on women. The platform underlined the human rights implications of violence against women, particularly in armed conflict and vulnerability of refugee women. Beijing Declaration at Fourth world Conference on Women, 1995 was the fourth world conference on woman at Beijing. Its preamble expressed its determination to advance the goal of equality, development and peace for all women everywhere in the interest of all humanity. The Conference has addressed the issue of violence against women. The Beijing Declaration was followed by the formation of action plan known as Beijing Platform for Action (1996-2001). It also laid down the areas of concern for another five years (2002-2006). It is the responsibility of the UN Commission on the Status of Women to annually report to the UN of the plan of action in each country. This convention, besides acknowledging the issue of domestic violence as a human rights issue also requested the state panics to revise laws and administrative practices to ensure equal rights for women. Thus there was a need to undertake the international obligations by the state panics to comply with the international standard through legislative interventions or by policy change. Finally, India reacted to the International Convention on the issue of violence against women by enacting “The Protection of Women from Domestic Violence Act’. 2005.

DOMESTIC VIOLENCE AND THE INDIAN CONSTITUTION

The constitution of India guarantees justice, social, economic and political. In the matter of equality Article 14 confers on men and women equal rights and economic and political, economic and social spheres. Article 15 prohibits discrimination against any citizen on the grounds of religion, race, caste, sex, etc. Article 15(3) makes a special provision enabling the state to make affirmative discriminations in favour of women. Similarly, Article 16 provides for equality of opportunities in matter of public appointments for all citizens, Article 39(a) lays down that the state shall direct its policy towards securing all citizens, men and women, equally, the right to means of livelihood, while Article 39(c) ensures equal pay for equal work. Article 42 directs the State to make provision for ensuring just and humane conditions of work and maternity relief. Above all, the constitution imposes a fundamental duty on every citizen through Article 51A (3) to renounce the practices derogatory to the dignity of women. The question, however, is: Have the women been able to reap the benefits provided for them under the Constitution of India? The answer unfortunately is not encouraging. There is a long way to go to achieve the goals enshrined in the Constitution. In tune with the various provision of the Constitution, the state has enacted many women- specific and omen – related legislation to protect women against social discrimination, violence and atrocities and also to prevent social evils like child marriages, dowry, rape practice of Sati, etc. the Equal Remuneration Act of 1976 provides for equal pay to men and women for equal work. The Hindu Marriage Act of 1955 amended in 1976 provides the right for a girl to repudiate a child marriage before attaining maturity whether the marriage has been consummated or not. The immoral Traffic (Prevention) Act of 1956 as amended and renamed in 1986 makes sexual exploitation of male or female, a recognizable offence. The second amendment brought in the Act in 1986 makes the husband or in-laws punishable, if a woman commits suicide within 7 years of her marriage on the presumption that she must have been subjected to cruelty. A new criminal offence of ‘Dowry Death’ has been incorporated in the Indian Panel Code. The Child Marriage Restraint Act, 1976 raises the age for marriage of a girl to I8years from 15 years and that of a boy to 21 years. The Act of 1948 (amended up to 1976) provides for establishment of a crèche where 30 women are employed (including casual and contract laborers). The Medical Termination of Pregnancy Act of 1971 legalizes abortion by qualified professional on humanitarian or medical grounds. Amendments to Criminal Law made in 1983 provides for a punishment of 7 years in ordinary cases of rape and 10 years rigorous imprisonment in cases of custodial rape. The maximum punishment can extend to life imprisonment. Border of proof has also been shifted to the accused. A new enactment of indecent Representation of Women (Prohibition) Act, 1986 and the Commission of Sati (Prevention) Act, 1987 has also been passed to protect the dignity of women and prevent violence against them as well as their exploitation. The Criminal Law in India is contained primarily in the Indian Penal Code, 1860

The alarming frequency of crime against women, led Parliament to enact Criminal law (Amendment) Act, 1983 (Act 43 of 1983) to make the law of rape more realistic. By the Amendment Act, section 375 and 376 were amended and certain more penal provisions were incorporated for punishing such custodians who most a woman under their custody or care. Section 114A was also added in the Evidence Act for drawing a conclusive presumption as to the absence of consent in certain prosecutions for rape, involving such custodians. It is important to mention that physical wounds may heal, but the mental wounds often last a lifetime. It is with this in mind that the new Protection of Women, from Domestic Violence Act, 2005 was passed.

CAUSES & CONSEQENCES OF DOMESTIC VIOLANECE

The causative factors of domestic violence are (1) Social causes include factors like the inferior status of woman due to the social conditioning, the patriarchal structure of society. (2) Lack of economic resources and dependence (3) Poverty- (4) Drug abuse and Alcoholism.(5) Lake of legal protection and enforcement of low is so poor that the offenders seem to have lost all fear of authority and they grow bolder because they are not caught. (6) Marital Maladjustment, (7) Economic dependence (8) Hostility towards women. The effect or consequences of domestic violence on woman victim are devastating. It can result in physical and mental pain and suffering and can be serious also like causing death. Domestic violence not only makes women feel insecure at home but also endangers their independence, self-development and human rights. The Children who grow up watching such an act of violence in their family can become psychologically disabled for life.

According to the world development report of the world bank, “women aged between 15 to 44 years lose more ‘discounted health years of life’ to rape and domestic violence than to breast cancer, cervical cancer, obstructed labour, heart diseases, AIDS, respiratory infections, motor vehicle accidents or war”⁴⁾Dhawan Himanshi “Domestic Violance Act is all right but will it properly implemented”? Lawer’s up to date November 2006. P-4

The UK Home office has recorded domestic violence costs the country 23 billion pounds of which 3 billion pounds are paid by public services.

JUDICIAL RESPONSE IN INDIA

Law alone cannot eradicate any social problem when the legislative fails the judiciary has come forward to help the women. The judiciary has always tried to upheld the right of women by various notable judicial pronouncement. The Supreme Court in a recent case observed as Chanmuniya v. Virendra Kuamr Singh Kushwaha ⁵⁾(2011) 1SCC 141 LAWZ AUGUST 2012

“Domestic violence Act, 2005 assigns a very broad and expansive definition to the term “domestic abuse” to include within its purview even economic abuse. “Economic abuse” has been defined very broadly in clause (iv) to explanation I of Section 3 of the said Act to include deprivation of financial and economic resources. Section 20 of the Act allows the Magistrate to direct the respondent to pay monetary relief to the aggrieved person, who is the harassed woman, for expenses incurred and losses suffered by her, which may include, but is not limited to maintenance under Section 125CrPC. Section 22 of the Act confers upon the Magistrate, the power to award compensation to the aggrieved person, in addition to other reliefs granted under the Act. In terms of section 26 of the Act, these reliefs mentioned above can be sought in any legal proceeding, before a civil court, Family court or a criminal court, affecting the aggrieved person and the respondent.”

DOMOSTEIC VIOLENCE ACT 2005 SOME REFLECTION

The Act is a land mark in the achievement of gender equality for Indian women. It covers abuse of elderly woman and child sexual abuse as well. Violence against divorced and widowed women is also within its ambit. It delinks domestic violence from the confinements of dowry murders and dowry harassments. The legislation addresses must of the concerned relating to gender based violence that happens in private sphere. It endeavoured to provide both civil and criminal remedies. It provides quick and easy remedy for victim of violence. The Act provides for many other significant reliefs the right to residence in the shared household, the right to protection orders, and the mandated return of Streedhana. It defines violence in all its dimensions from physical to sexual and the economic. It applies to not only to married women but also to women in live in relationship and daughters, mothers. The act provides for appointment of protection officer and NGO’s to provide assistance to women with respect to medical examination, legal aid etc.

According to Section 3 of the Protection of Women from Domestic Violence Act, 2005, Domestic violence means: any act of omission or commission or conduct of the respondent which constitute:

1. Harm or injuries or endangers the health, safety, life, limb or wellbeing whether mental or physical, of the aggrieved person or tends to do so and includes causing physical abuse, sexual abuse verbal and emotional abuse and economic abuse or
2. Harasses, harms, injuries or endangers the aggrieved person with a view to coerce her or any other person related to her to meet any unlawful demand for any dowry or other property or valuable security or
3. Has the effect of threatening the aggrieved person or any; person related to her by any conduct mentioned in clause (a) or clause (b) or;
4. Otherwise injures or causes harm, whether physical or mental to the aggrieved person.

For the purpose of this aforesaid section the term ‘Respondent’ means according to Section 2(1) of the Protection of Women from Domestic Violence Act 2005 any adult male person who is or has been, in a domestic relationship with the aggrieved person and against whom the aggrieved person has sought any relief under this Act.

Provided that an aggrieved wife or female living in a relationship in the nature of a marriage may file a complaint against the husband, a relative of the husband or the male partner. According to Section 2(a) of this Act the term ‘Aggrieved Person’ means any woman who is or has been, in a domestic relationship with the respondent and who alleges to have been subjected to any act of domestic violence by the respondent. according to Section 2(f) of this Act the term ‘domestic relationship’ means a relationship between two persons who live or have any point of time, lived together in a shared household, when they are related by consanguinity, marriage or through a relationship to the nature of marriage, adoption or are family member living together as a joint family. Section 8 of the Act empowers the state to appoint protection officers in each district, as it deems necessary. Act emphasizes that the protection officers shall be as far as possible women with prescribed qualification and experience. Section 5 lays down the duties of police officers. Protection officers, service providers and the magistrates who have received any complaint on domestic violence must inform the aggrieved person of the right to make application for one or more of the relief’s mentioned under the act such as the availability of services of service providers and protection officers and, her right to avail free legal services or the right to file a complaint under Sec 498A of IPC. Section 9 of the Act imposes duties and functions upon the protection officers to assist the Magistrates to discharge the functions under the Act by reporting the domestic incident to the magistrate, to file application to issue a protection order on behalf of the aggrieved person, to provide free legal aid, to maintain a list of service providers and to make sure that the monetary relief is being given in case of bodily injury and to perform such other duties. Section 10 of the Act provides for the registration of voluntary organizations under the Government, which are formed with a view to protect the women. Section 12 stipulates special procedure for obtaining various reliefs mentioned in the Act. As per section 14 of the Act the Magistrate is authorized to initiate counselling at any stage of the proceedings and that the Magistrate can seek the assistance of any “welfare expert preferably a woman, including a person engaged in promoting family welfare. Section 16 of the Act provides for the proceedings to be held in camera. Section 17 of the Act provides that irrespective of any other law, every woman in a domestic relationship. Under section 20 the magistrate is empowered to give monetary relief to meet the expenses or the losses suffered by the aggrieved person.

Abuses covered under the Act:

1. Physical Abuse: It means any act or conduct which is of such a nature as cause bodily pain, harm or danger to life, limb or health, or an act that impairs the health or development of the person aggrieved. It includes assault, criminal intimidation and criminal force.
2. Sexual Abuse: It stands for any conduct of a sexual nature that abuses, humiliates, degrades or otherwise violates the dignity of woman.
3. Verbal and emotional Abuse: It includes (1) insults, ridicule, humiliation, name calling and insult or ridicule specially with regards to not having a child or a male child and (2) repeated threats to cause physical pain to any person in whom the aggrieved person is interested.
4. Economic Abuse: The deprivation of economic or financial resources to which the aggrieved woman as child is entitled under law or custom or which the person aggrieved requires out of necessity, can be claimed under the provisions of this law.

CRITICISM OF DOMESTIC VIOLENCE ACT 2005:

Despite the above benefits or advantages the act is severally criticized on the following aspects:

1. How the case should be filed? Taking cognizance.
2. There is no penal provision except under section 31.
3. In this act the police will not investigate the case. Only the protection officer or service provider will file the domestic violence report.
4. Though several powers have been given to protection officer the implementation procedures are not mentioned in this act.
5. Act is alright but will it be properly implemented?

The implementation of the new legislation is a ‘challenging issue’, Supreme Court lawyer Indira Jaisingh said, “There are some unanswered questions. The Government has not made any budgetary allocation to appoint protection officers. I expect them to come up with excuses like there are not enough judges and resources to effectively implement the law.” She argued that people with the right training needed to be appointed as protection officers. Besides bureaucratic hurdles, criticism that the law has attracted is that it could be used to settle sources and booking false cases.

Seeking to dismiss this, Jaisingh said, “This is a civil law. It gives a woman the right of residence, maintenance and protection. It must not be confused as a criminal law and the phobia of misue should be put said ⁶⁾ Dhawan Himanshi “Domestic Violance Act is all right but will it properly implemented”? Domestic Violence lagilation evokes mixed response, Times of India Kolkata, October 18 2006.

A senior lawyer in the Supreme Court, K.K. Rai, who is conversant with matrimo­nial cases, says: “The law just does not take into account the realities of the joint family system where female members of the family heap both physical and emotional aggression against a woman. We need guidelines and mechanisms which ensure continuance of the joint family ethos, yet cushion the wom­an against violence.”⁷⁾. Chandra Sailaja towards protecting women THE HINDU June 17 2010.

CONCLUSION & SUGGESTION

Domestic violence does not just shatter the violated person, it shatters all those who related in the society and the country on the whole. The rate of domestic violence is even highly in Egypt 94% and in Zambia 91%.

As we know to meet the challenges of increasing domestic violence criminal acts were amended in 1983 & 1986 and 2013 to create special categories of offences relating to violence, however, these is a need for a well-planned and clear policy to devise ways to control domestic violence social control agencies like education system, religion, societies pressure group, and family system should explore ways and means of controlling and preventing domestic violence mere law or constitutions mandate cannot achieve the objective & deliver justice to the victims of  domestic violence unless proper and effective machinery is devised with scientific approach for enforcement of laws.

In the ultimate analysis stringent and effective laws sensitive judiciary, enforcement machinery and vigilant women group are the need of the hour to deal with Crimes against women. But there is also a need to change the mind-set of the people. It is, therefore suggested that a post of co-ordinator may be created for the prevention of the domestic violence, whose function would be to investigate into the functioning of the law, make annual report, review the existing law, plan and execute training programmes etc.

In Delhi where at least an attempt has been made to recruit independent protec­tion officers, Yasmin Khan, a member of the State Women’s Commission, laments that it is just not possible to appoint dedicated staff on a salary of Rs. 15,000 a month. “How can a newly recruited MSW [degree-holder], even if she agrees to join, visit homes, draw up reports, seek protection orders from magistrates, create and maintain legal documenta­tion and pursue court directions when she has no help, no transport, no office and no training?” The experience of Rajasthan is vividly de­scribed by Kavita Srivastava, who represents the People’s Union for Civil Liberties and who has been pursuing women’s causes. Ac­cording to her, while the protection officers are in acute need of legal training, the magis­trates before whom the cases are presented also need orientation.

Unlike in the UK, and the U.S, domestic violence has not been on the radar of the political executive, politicians in general, the police or the media in India. Such cases would seem to lack the sensationalism or ghoulish-appeal of murder or rape cases, surveys have shown that in Indian society, both men and women believe that domestic violence can be tolerated in certain circumstances.

Administratively, the Act requires each state government to appoint protection offi­cers, register service providers and notify medical facilities for the implementation of the Act. While the Ministry of Women and Child Development and the Ministry of Home Affairs have issued advisories to State governments, with the exception of West Bengal and Delhi no State is known to have appointed independent protection officers even hence.