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JUDICIAL STANCE ON DOMESTIC VIOLENCE AGAINST DISABLED WOMEN IN INDIA: CRITICAL ANALYSIS By: TARUN KM
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JUDICIAL STANCE ON DOMESTIC VIOLENCE
AGAINST DISABLED
WOMEN IN INDIA: CRITICAL ANALYSIS
Authored By: TARUN KM
Third year law Student,
School of Law, Christ (Deemed to be
University)
Abstract
Domestic violence against
women is a serious issue that threatens women's physical and emotional
well-being and negatively affects their quality of life. This pattern of abuse
is in the form of intimidation, manipulation, humiliation, isolation, fear,
terror, coercion, threats, blaming, and injury, which usually occurs between
intimate partners and caretakers in the case of those women disabled. Lately,
women with disabilities tend to experience violence or abuse with their close
ones compared to those without a disability. The author will be stating the
intersection between domestic violence and disability by stating that women
with disabilities are more prone to such violence because they might need help
with daily chores and are dependent physically and mentally vulnerable, which
gives them all possibilities to take advantage of the situations. The author
will mention various abusive tactics against women with disabilities by
intimate partners and caregivers through their children, economic abuse, sexual
abuse, fear, low self-esteem, minimizing or denying or blaming her disability
etc. The author will further be critically examining and analysing the
evolution of judicial responses to domestic violence against disabled women and
appreciating the present judicial status. Matrimonial cruelty has now been made
a cognizable, non-bailable and non-compoundable offence in India under Section
498A of IPC. The author will suggest various ways to curb the violence faced by
disabled women such as all-women police station, family counselling cells,
Shelter and short stay homes, helpline number, law enforcement, etc. will be
discussed.
Key words: abuse, intimate partner, violence,
disability.
Introduction
Domestic violence is
defined as conduct by the respondent that assaults or makes the aggrieved
person's life miserable through the cruelty of conduct, even if such conduct
does not constitute physical ill-treatment, forces the aggrieved person to live
a sinful life, or otherwise injures or harms the aggrieved person.[1] Women
with disabilities are more vulnerable to every sort of violence than
non-disabled women since they are in such a disadvantaged position in the
present social matrix. The crisis worsens societal disparities,
making women with
disabilities even more vulnerable because they are at a particular crossroads
of gender and disability. Women with disabilities are more prone to be victims
of violence or abuse than women without impairments.[2]
According
to particular research, women with disabilities are more likely than women
without disabilities to be subjected to violence or abuse by a current or past
spouse. Women with serious mental illness are stigmatised for their gender,
psychosis, and separation or divorce. It is a lose-lose situation for many
women. They are not welcome in either their parents, or spouses; houses.[3] These
women are powerless and face a variety of stresses unique to Indian cultures,
such as partial desertions, being forced to live with a husband she despises,
not being allowed to enter her own home, being sent back to her parents
whenever her symptoms worsen, her parents being forced to pay for her medical
expenses, not being allowed to take her medication, and so on.[4] Because
of social isolation, limited mobility, a lack of support systems, communication
obstacles, and unfavourable societal judgments, perpetrators of violence target
women and girls with disabilities in particular.[5]
Domestic
violence and disability
Over one billion
individuals worldwide have impairments, accounting for roughly 15% of the global
population, and disability disproportionately impacts vulnerable communities.[6] The
number of disabled girls and women is significant; according to the 2011 World
Report on Disability, the female disability prevalence rate is 19.2%, compared
to 12 % for males.[7]
According
to studies, women with disabilities are sexually attacked at least twice as
high as the general female population. In the case of women with cognitive or
communication disabilities, their lack of understanding of the situation and
inability to say no during a sexual assault might be misinterpreted as consent.[8] Because
of their gender, age, and condition, girls with disabilities face prejudice and
heightened vulnerability, and girls with intellectual impairments are
particularly vulnerable.
It is
projected that 40 to 70% of children will be sexually assaulted by reaching 18.
Because of insufficient policies and standards, negative attitudes, physical
access, information availability, communication, lack of service provision,
inadequate funding, and a lack of involvement women with disabilities in
decisions that directly affect their lives, the process for reporting violence
is often inaccessible for women and girls with disabilities.[9] Isolation,
emotional blackmail, rejecting and blaming, blackmailing with children,
physical violence and sexual assault are abusive techniques used by intimate
partners and caregivers against women with disabilities.[10][11] Many
disabled women and girls have minimal or no access to school and do not know
formal sign language.
Thus,
they communicate primarily using signs that only their immediate family
understands. Women with disabilities, like other women, are frequently
mistreated by someone they know, such as a boyfriend or family member.
According to the International Centre for Research on Of women (ICRW), 85% of
males admit aggressive behaviour towards their wives at least once in the
previous 12 months. 57% of males acknowledged abusing their spouses sexually.
Men acknowledged abusing their pregnant spouses in 32% of cases. To demonstrate
their dominance over the weaker sex, the males used violence. Repeated
humiliation, insults, forced isolation, constraints on social mobility, the
persistent fear of violence and harm, and denial of economic resources is all
subtle and insidious kinds of violence. 11
Women
with disabilities are also in danger of being abused by healthcare
professionals or caretakers. Caregivers might refuse to offer drugs or
assistance items like wheelchairs or braces to their patients. They might also
refuse to assist with daily activities such as bathing, dressing, or eating.
Furthermore, persons with impairments are more likely to be socially isolated,
have low self-esteem, and lack personal autonomy. These characteristics,
frequently cultivated by an abusive relationship, increase the possibility that
a person may accept acts as the standard rather than seeing them as abuse.12
Difficulty
in reporting mistreatment owing to a lack of accessible modes of communication,
due to physical impediments and a lack of accessible communication channels,
information and counselling services are inaccessible (Women who are blind or
visually challenged should be especially concerned about this), fear of
reporting the abuse, since it may result in the breaking of relationships and
loss of the care they require, and a greater dependency on others for care,
Lower self-esteem as a result of not being viewed as a woman, but just as a
person with a handicap, or even worse.[12]
Reporting sexual and gender-based abuse has a social stigma and the fact
that perpetrators are typically family members. The presence of a family member
may discourage women from reporting. Furthermore, authorities frequently see a
woman with an intellectual handicap as a non-credible witness, and in such
cases, the investigation of the crime may be halted.
Because
community and family members do not feel they need or can understand this sort
of information, women and girls with disabilities have the lowest levels of
sexual-reproductive health, furthermore, because of social exclusion from
schools. Moreover, in other community centres, girls with disabilities are more
likely to be denied access to grades in which sex education is taught;[13] It
is more difficult to discern between proper behaviour and violence/abuse when a
stigma is attached to delivering sexual education to women/girls with
disabilities.[14]
Evolution
of judicial responses to domestic violence against disabled women
The
Indian Convention on the Rights of Persons with Disabilities attempted to
address this by establishing a special provision for women with disabilities
under Article 6. The Rights of Persons with Disabilities Act of 2016 recognised
this intersectional and multifaceted discrimination against women with
disabilities by including a particular provision for women with disabilities
under Section 4 of the Act, similar to the international convention. However,
the law has had little effect on the normative circumstances of disabled women,
who continue to face structural discrimination. As a result, laws have failed
to recognise the connection between gender and disability. Because the
Prevention of Domestic Violence Act of 2005 is aimed at women in general, it
does not address the unique needs of disabled women. In its closing comment,
the UN Committee on the Rights of Persons with Disabilities noted that India
has a limited number of accessible shelters for women with disabilities who are
victims of abuse.
In Patan Jamal Vali v State of Andhra
Pradesh[15], a
two-judge bench led by Justice DY Chandrachud issued a decision in a criminal
appeal against the Andhra Pradesh High Court's decision. The case involved the
rape of a visually impaired girl from the Scheduled Caste. In this instance, a
blind girl from a Scheduled Caste group was raped by a relative of her brothers
in her own house. Section 3(2)(v) of the Scheduled Castes and Scheduled Tribes
(Prevention of Atrocities) Act 19891 and Section 376(1) of the Indian Penal
Code were used to punish the defendants.[16]
Using the circumstances
of this case, the court looked into a troubling pattern of sexual assault
against women and girls with disabilities and set in motion a thinking process
on how the structural realities that have led to this situation may be
addressed appropriately. The bench upheld Patan Jamal Vali’s life sentence for
sexually assaulting a blind girl who was the sister of one of his friends,
saying women with disabilities are more vulnerable to sexual violence because
the accused beliefs the rape survivor's testimony will be skewed due to her
physical limitations.18 The court stated that a prosecutrix with a
handicap, or a disabled witness for that matter, cannot be regarded as weak or
inferior just because they interact with the world differently.[17]
The court established several rules to make the
criminal justice system more accessible to
disabled people:
·
The
National Judicial Academy and state judicial academies have been asked to train
trial and appellate judges on dealing with cases involving sexual assault
survivors.
·
The
Bar Council of India may explore including these issues and the intersectional nature
of violence in general in the LL.B curriculum.
·
The
National Crimes Record Bureau should carefully consider keeping gender-based violence
data that is not aggregated. The disability must be one of the factors on which
such data must be preserved to map out the scope of the problem and conduct customised
corrective action.
·
Police
officers should be sensitised regularly to deal appropriately with situations
of sexual assault against women with disabilities.
In incidents of
gender-based violence, the right of women with disabilities to seek justice is
hampered by gender stereotypes and prejudices in the court system (UN Committee
on the Rights of Persons with Disabilities 2019).[18]
They face various issues, including difficulty escaping violent
situations due to mobility issues, communication barriers for women with
hearing and speech impairments, and non-consensual sexual acts perpetrated
against women with psychosocial and intellectual disabilities who may be
unaware of the heinous acts of crime perpetrated against them. Physical hurdles
to court and police authority, communication difficulties, a lack of police
sensitisation, unavailable documents, and a lengthy legal process increase
these concerns (Human Rights Watch 2018).[19]
Research performed by Human Rights
Watch, which examined case studies of 17 women with disabilities who had
experienced sexual abuse, has confirmed this. Even the Ministry of Health and
Family Welfare's 2014 guidelines and protocols for medico-legal care for sexual
violence victims/survivors acknowledge that women and girls with disabilities
face unique challenges in reporting sexual abuse due to communication barriers,
reliance on caregivers (often the abuser), or being dismissed as mentally
retarded.[20] Women
with disabilities are afraid to disclose assault for fear of reprisal from
carers, frequently the perpetrators of such violence (UN Committee on the
Rights of Persons with Disabilities 2019).[21]
Because of the impunity created by the court system, women with
disabilities have gone unnoticed.[22]
Suggestions
The National Network to End Domestic Abuse
is a non-profit organisation committed to ending domestic violence. The (NNEDV)
National Network to End Domestic Violence is a group of state domestic
abuse coalitions, related organisations, and people working together to end
domestic violence in the United States.[23]
The group collaborates extensively with its
members to better understand the needs of domestic abuse victims and services
needs and then advocates for these needs with national officials.
Abused Deaf Women's Advocacy Services
encourages Deaf and Deaf-Blind survivors of domestic abuse, sexual assault, and
harassment to rebuild their lives while changing the attitudes and behaviours
that contribute to violence. Individuals and families get comprehensive
assistance and community education, and advocacy on system and policy issues.[24]
The National Centre for
Victims of Crime runs this programme. The National Centre campaigns
for greater rights, protections, and services for crime victims via a
partnership with local, state, and federal partners; offers education,
training, and assessment; and acts as a trustworthy source of current
information on victim’s concerns.
The National Rape, Abuse,
and Incest Network RAINN is the nation's largest anti-sexual assault
organisation, with a 24-hour hotline operating seven days a week. In addition,
the group organises initiatives to prevent sexual assault, aid survivors, and
guarantee that perpetrators are prosecuted.[25] RAINN connects
survivors of rape, abuse, and sexual assault with resources across the country.
Conclusion
Women
with disabilities are more vulnerable to every sort of violence than
non-disabled women since they are in such a disadvantaged position in the
present social matrix. The crisis worsens societal disparities, making women
with disabilities even more vulnerable because they are at a particular
crossroads of gender and disability.[26]
Intimate partner violence is a public health issue that influences
women's health and the increasing use of health care services. It is impossible
to stress the urgency of combating abuse against women and girls with
disabilities. The consequences of this violence are broad, and the financial
and social costs of violence against women and girls are significant,
preventing women and girls from reaching their full potential as members of
society. The current global epidemic of COVID19 is unlike any prior calamity. It
presents the government with new and unique issues, necessitating special
measures to address them. As a result, an intersectional approach is necessary,
which recognises that people do not experience abuse and violence in a homogeneous
group. Women with disabilities are disproportionately affected when the country
is confronting an unprecedented catastrophe like COVID-19. As a
result, approaching such a crisis and its ramifications from an intersectional
perspective is crucial. This allows for a full assessment of the intricate
interconnections that a society experiences during an emergency. In ordinary
situations where an emergency or tragedy does not disrupt law and order, women
with disabilities face difficulties unique to their disability, which the system
consistently fails to solve.[27] Article
15 of the Indian Constitution and international conventions such as the
Elimination of All Forms of Discrimination Against Women (CEDAW), which India
has ratified, acknowledged women's unequal position and created particular
provisions to remedy it. Dowry Prohibition Act (DPA), Sections 498A, 304B,
Protection of Women Against Domestic Violence, especially within the
institution of marriage and family. Domestic abuse victims; apprehension about
going to the police for such offences gradually dissipates. Domestic abuse was
frequently seen as a family concern rather than a serious crime, undermining
women's rights as citizens. However, the current tendency is shifting. Domestic
abuse victims; apprehension about going to the police for such offences
gradually dissipates. Domestic abuse was frequently seen as a family concern
rather than a serious crime, undermining women's rights as citizens. However,
the current tendency is shifting.
[2]
Hughes, R.B., Lund, E.M., Gabrielli, J., Powers, L.E., Curry, M.A. (2011). Prevalence of interpersonal violence against community-living
adults with disabilities: a literature review. Rehabilitation
Psychology; 56(4) 302-19.
[3]
Brownridge D.A. Partner violence against women with disabilities: Prevalence,
risk, and explanations. Violence Women. 2006;12:805–822.
[4]
Martín-Fernández M., Gracia E., Lila M. Psychological intimate partner violence
against women in the European Union: A cross-national invariance study. BMC Public Health. 2019;19:1739.
[5]
Smith S.G., Chen J., Basile K.C., Gilbert L.K., Merrick M.T., Patel N., Walling
M., Jain A. The National Intimate Partner
and Sexual Violence Survey (NISVS): 2010–2012 State Report. National Center
for Injury Prevention and Control, Centers for Disease Control and Prevention;
Atlanta, GA, USA: 2017.
Psychiatry. 2013;55:S243–9.
[8]
Jones, L. et al. July 2012. Prevalence and risk of violence against children
with disabilities: Systematic review and meta-analysis of observational
studies. The Lancet, Early Online Publication.
[9]
Iglesias, M. 1998. Violence and women with disability. Vedras, Spain: AIES; The
Swedish Research Institute for Disability Policy, HANDUAB. 2007. Men’s violence
against women with disabilities. Synskadades Riksforbund, The Report Series
[11]
The Roeher Institute. 2004. “Violence against Women with Disabilities.” Ottawa,
Public Health Agency of Canada.
[12]
Ortoleva, S and Lewis, H. 2012. Forgotten Sisters - A Report on Violence Against
Women with Disabilities:
An
Overview of its Nature, Scope, Causes and Consequences
[14]
Kutin J., Russell R., Reid M. Economic abuse between intimate partners in
Australia: Prevalence, health status, disability and financial stress. Aust. N. Z. J. Public Health. 2017;41:269–274.
[15]
LL 2021 SC 231
[16]
Disabled Women's Network of Canada, "Factsheet: Women with Disabilities
and Violence," accessed Jul. 21, 2020, https://www.dawncanada.net/media/uploads/page_data/page-267/english_-_violence_-_january_2014.pdf.
18
Human Rights Watch, "Uganda: For Women with Disabilities,
Barriers and Abuse," accessed Jul. 29,
[17]
Hassouneh-Phillips D., McNeff E. “I thought I was less worthy”: Low sexual and
body esteem and increased vulnerability to intimate partner abuse in women with
physical disabilities. Sex. Disabil. 2005;23:227–240.
[18]
Chan J.C., Martin S.L., Moracco K.E., Dulli L., Scandlin D., Loucks-Sorrel
M.B., Turner T., Starsoneck L., Dorian P.N., Bou-Saada I. Helping Women with
Disabilities and Domestic Violence: Strategies, Limitations, and Challenges of
Domestic Violence Programs and Services. J.
Women Health. 2003;12:699–708
[19]
Lund E.M. Community-based services and interventions for adults with
disabilities who have experienced interpersonal violence: A review of the
literature. TraumaViolenceAbus. 2011;12:171–182.
[20]
harma I, Tripathi CB. Hindu marriage Act, psychotic illness and women: The
Indian paradox. In: Sharma I, Tripathi MN, editors. Varanasi (India): Mahaveer
Press; 2009. pp. 317–26
[21]
Janine Benedet and Isabel Grant. 2007. “Hearing the Sexual Assault Complaints
of Women with Mental
Disabilities: Consent,
Capacity, and Mistaken Belief.” McGill Law Journal (52 McGill L.J. 243)
[22]
The Roeher Institute. 2004. “Violence against Women with Disabilities.” Ottawa,
Public Health Agency of
Canada
[23]
The Roeher Institute. 2004. “Violence against Women with Disabilities.” Ottawa,
Public Health Agency of Canada
[24]
World Health Organization . Violence: A
public health priority. WHO Global Consultation on Violence and
Health. Word Health Organization; Geneve, Switzerland: 1996
[25]
Washington (USA): ICRW; 2001. The International Centre for Research on Women.
Domestic Violence in India II: Exploring Strategies, Promising Dialogue. ICRW
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[26]
Human Rights Watch. 2010. "As if we weren’t human: discrimination and
violence against women with disabilities in northern Uganda.” New York: Human
Rights Watch.
Psychiatry. 2013;55:S243–9
Article Information
JUDICIAL STANCE ON DOMESTIC VIOLENCE AGAINST DISABLED WOMEN IN INDIA: CRITICAL ANALYSIS By: TARUN KM
Authors: TARUN KM
- Journal IJLRA
- ISSN 2582-6433
- Published 2023/04/07
- Volume 2
- Issue 7
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
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