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BEHIND CLOSED DOORS: UNVEILING THE SOCIO-LEGAL DYNAMICS OF DOMESTIC VIOLENCE IN INDIA
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BEHIND
CLOSED DOORS: UNVEILING THE SOCIO-LEGAL DYNAMICS OF DOMESTIC VIOLENCE IN INDIA
AUTHORED
BY - NISHTHA
Status of
Women- Historical Perspective
Indian tradition in regard to the
treatment of women is very complicated. On the one hand, women has been called Devi
or Goddess, the abode of Gods and on the other hand, she has been
criticized for her unpredictable and impulsive nature and has even been denied
the basic right of existence as a human being.[1]
Undoubtedly, the position of women
during the Vedic period was glorious on account of freedom and equality in all
aspects and it was in no way inferior to men. Women were respected and given
more importance in almost all the fields of social life. It is believed that
there were women warriors who were symbol of bravery and equal to men. Women
used to have equal opportunity to educate herself. Women studied in the Gurukuls
and enjoyed liberty in every sphere of life. In all the rituals and
ceremonies, women had equal status. The Vedic term for wife “dampati” suggests
that the husband and wife were regarded as the joint heads of the households.
The wife was considered as Ardhangini of the husband, which meant that
she constituted half of the personality of her husband.[2]The
man was not religiously competent to perform religious duties without his wife.
There was absence of the purdah system. There was no prohibition in the
remarriage of widow and also there was no discrimination between a boy and a
girl. Girls were also permitted to undergo thread ceremony (Upanayana
Sanskara) Vedic period was considered as a golden period for women.
In the Post-Vedic period, various
restrictions were put on women’s rights and privileges by Manu. The birth of
girls was treated as a disaster for the family. Girls were totally denied
access to education. The marriageable age of girls was lowered to 9 or 10
years. The subservience of women can be precisely summed up by the famous
injunction of Manu, where it is stated that a woman should never be
independent. As a daughter, she is under surveillance of her father; as a wife,
of her husband; and as a widow, of her son. He equated women with slave and his
laws epitomize complete submission of women to men. Manu’s Code had the most negative
effect on Indian women for countless succeeding generations. Even today, it is
his laws which keep millions helpless in the prison of Hindu orthodoxy. In Laws
of Manu, woman and low caste sudras are bracketed together.
The position of women was further
degraded during the medieval period. Social evils like sati, child marriage,
female infanticide arose. The evil of dowry had become deep-rooted. Girls were
not welcome in this period because of the dowry system. The poorand lower
middle-class families were ruined because of this social evil. Polygamy and the
devadasi system had already spread. The medieval period saw women being
oppressed in the feudal social order and patriarchal families. Indian women
were strictly confined to their homes. Girls were altogether deprived of
parental affection and love. Her scope of education was also limited. Child
marriage restricted her right to proper education. Some girls were dedicated to
temples as Devadasis or some took up the profession of prostitution. Sati system
was prevalent in India during this period. It was the notion that women who
died on the funeral pyre of her husband would enjoy eternal bliss in heaven.
Sati system was more prevalent in the royal families than in any other classes
of the society.
The attitude, behaviour and living
pattern of Hindu society changed drastically during the British regime due to
education and Western impact on the socio-cultural life of India.[3]
Social Reform Movement and the Nationalist Movement raised the question of equal
status of women. The concept of equality, liberty and individual secularism,
although, arose but limited to ruling class. Many laws were enacted which tried
to eradicate certain social evils such as remarriage of widows, child marriage,
and right to property of women. An awareness was created during the British
rule for the removal of social malaises, while education and organising
political participation increased women’s mobility.
After Independence, a number of legal
measures were taken to improve the standard, equality and life of women. With
Independence, women were granted equal status with men. The government made all
the efforts to raise the status of women in various fields through legislation.
The most important event after the Independence has been the drafting of the
Constitution. The framers of the Constitution were aware about the low status
of women in India and realised that equality was important for the development
of the nation. It became the objective of the State to promote education and
economic interests of women and to protect women from exploitation and provide
social justice. Articles 14, 15 and 16 of the Indian Constitution ensure
equality and prohibit discrimination of people on the basis, inter alia, of
sex. Fundamental duties, too, recognise upholding the dignity of women as one
of the duties.
Domestic
Violence In India
Violence against women is a
manifestation of the historically existing unequal power relations between men
and women, which have led to domination over women and discrimination against
women by men and to the prevention of women’s full advancement. Domestic
violence against women has always been an obstacle to the achievement of the
objectives of equality, development and peace. Domestic violence both violates
and impairs the enjoyment by women of their human rights and fundamental
freedoms.
Violence against women is not a new
phenomenon. It is the ugliest attitude towards women in India. Violence
perpetrated by partners and close family members on women within the four walls
of the home has been a matter of silent suffering from a very long time. Women
have been the victims of humiliation, torture and exploitation in our society
from time immemorial. Violence affects the lives of millions of women in all spheres
of their life. Violence can be both physical and psychological. It is an attack
on not only her physical being but also towards her self-respect and
self-confidence. According to a National Family Health Survey, it is reported
that 42% of Indian men see no wrong in hitting their wives. Thus, violence
against women in the confines of their home is very much acceptable in the
society.
Despite the development in the legal
sphere and judicial activism to protect women’s rights, the laws dealing with
evil social practices that are against women, have proved to be ineffective.
Neither the woman is capable to reach the law nor the law can break the
barriers and reach her behind the closed doors of her home. The dependence of
women on the perpetrators of such violence worsens their situation.
Innumerable crimes are committed on
the woman in the confines of her home. Some of the forms of such violence are
given below-
·
Female Foeticide and Infanticide
A girl child is in a disadvantageous
position in the Indian society, from the womb till her death. A girl is not
allowed to be born or is aborted for the sole reason that she is a girl. This
contributes as the most serious human rights violation of the rights of a
female. Forced termination of female foetus aka Female Foeticide is a form of
Domestic violence during the present time. In unlucky situations when an
unwanted female child is born, she is done away with by poisoning or choking.
·
Incest
Incest refers to the sexual
intercourse between close relatives who fall within prohibited degrees of
relationship. Incest is a very serious form of abuse against girls and it often
goes unreported due to pressure from the perpetrator or shame or embarrassment
in disclosing such acts.
·
Marital Rape
Marital Rape is also a form of
Domestic Violence. Marital Rape occurs when a man forcibly or without her
consent has sexual intercourse with her or coerces her into indulging in sexual
acts with another person. Marital rape has not been penalised in India.
·
Violence against Elderly Women
Elderly abuse is also a form of
Domestic Violence. Caregiver or any other person who stands in a trust
relationship to the elder intentionally causes harm or creates a serious risk
of harm to such vulnerable women. Elderly abuse can be- (a) Physical- Inflicting
or threatening to inflict harm or injury; (b) Emotional Abuse- Mental pain,
anguish or distress; (c) Sexual Abuse- Non-consensual and forceful sexual
contact of any kind; (d) Exploitation; (e) Neglect; (f) Abandonment.
·
Dowry Death
Dowry Death is one of the worst
crimes that occurs with a woman within the matrimonial homes. The women are
burnt alive in the fire of greed of dowry. Women are tortured and beaten for
dowry demands, which either leads to their suicide or murder.
·
Violence against Widows
Widows are made to face sexual
violence at the hands of her brothers-in-law, fathers-in-law and in some
situations their own fathers and brothers.
There are many factors, which cause domestic
violence against women. They are discussed below-
1. Conservative Thinking-
The mindset our society
is very orthodox in the sense that women are considered to be physically and
emotionally weaker than men. It is socially accepted that if a woman tries to
escape from violence within her home or is thrown out of her by the
perpetrators of violence, then only she is to be blamed for her misery.
2. Gender Inequality-
Gender Inequality is one
of the main reasons contributing to wife battering, harassment related to dowry
and other kinds of cruelty. Inequality of women is maintained and further
strengthened by the social conditions prevalent in our patriarchal society. The
egocentric attitude of the male members making them consider themselves to have
an ever-dominant status as compared to their female counterparts gives rise to
violence.
3. Dowry Harassment-
Dowry is wedding gift to
a bride from her family. In Indian marriages, along with the giving away of the
bride, dowry is paid in cash or in kind by the bride’s family to the
bridegroom’s family. The greed of members of matrimonial home is endless and in
order to fulfil their needs, they force the women to bring as much money as she
can from her parents. For this, the women are maltreated, tortured to dire
consequences, beaten and sometimes burnt to death. Persistent demands for dowry
are an important cause of domestic violence. It starts from verbal abuse,
battering, torture and in extreme cases, it may lead to suicide or dowry death
and in others, women are left to suffer constantly at the hands of their
in-laws.
4.
Alcoholism-
An alcoholic person has
less control over his emotions and actions and can thus in a fit of anger take
dangerous steps that result in harm or danger to their family members specially
spouse.
Studies reveal that men’s
drinking patterns are linked with domestic violence across all segments of the
society.
According to Jacobs
(1998) alcohol as the root cause of domestic violence has been traced in three
ways-
“(a) Alcohol as an
excuse: Perpetrators are not held responsible for their actions when under the
influence of alcohol;
(b) Drinking and violence
as manifestation of similar and underlying problems: there in causal link
between drinking and domestic abuse, but they are both caused by similar life
stressors;
(c) Alcohol use as a
means of gaining power and control: Social norms of male violence and need for
control and power result in men using alcohol as an additional weapon of
domination.”[4]
5.
Media
Submissive female roles
are glorified in a number of movies and television serials. When the on-screen
perpetrator is never punished, it leaves a negative impact on the minds of the
viewers. Watching violence on the screens makes people less sensitive to pain
and suffering of others.
6.
Joint Family
Women who live in joint
families are more prone to violence as compared to the women living in nuclear
families as the former are expected to be more adjustable. There have been a
number of cases where due to the complaints of the other family members, the
husband has maltreated his wife.
7.
Poverty or Economic Strain
Economic hardship,
prolonged employment also leads to violence against spouse. There is greater
likelihood of poor women being victims of domestic violence than their richer
counterparts. Housewives, as opposed to professional women are also more prone
to being victims of domestic violence.
8.
Lack of Education
Lack of education decides
the vulnerability of women. Well educated women do not let themselves be
oppressed at the hands of their abusive family members. Well educated men and
families also do not subject the women in their lives to violence. Uneducated
people also expect that their wife or daughter-in-law will only beget a female
child. This unacceptability towards female child has resulted into violence in
the form of female foeticide, forced abortions, sex determination tests,
abandoning women who give birth to girl child.
Constitutional
and Legislative Protection against
Domestic
Violence
·
Protection
by Constitution
For centuries, women have been
victims of social discrimination. Independence brought about a sea-change in
India. The Chief Architect of the Constitution of India Dr. B.R. Ambedkar not
only recognized the unequal position of women, but also made sure that women
get equal rights. By enshrining the equality principle in the Constitution, the
Constitution has given equal status to women at par with men. Keeping this in
view, a number of provisions in the Constitution were written down to help
women improve their status and come to par with their male counterparts.
The Preamble is the key to the
Constitution. It does not discriminate between men and women but it treats them
alike. The Preamble of the Constitution declares to secure social, economic and
political justice to secure equality of status and opportunity in the field of
education, public employment and participation in political field.
Article 14 of the Constitution of India lays
down the general principle of Right to Equality and it prohibits the State from
denying to any person, “equality before the law or the equal protection of the
laws”.[5]
The aim of this Article is to establish “the equality of status”. “Status” here
refers to a woman’s position and rights in different fields of Hindu Law, namely
property, succession, matrimonial relief, guardianship right, will making
power, power of adoption. Status of woman is now being elevated because she can
exercise her rights as equally as a man. Article 14 of the Constitution
firstly, confers on women the equality of Status and secondly, protects against
any violation of this principle. The Supreme Court of India acts as the
protector and guardian of the fundamental rights and has always maintained and
elaborated the concept of “equality of status”.
In the case of Air-India v.
Nergesh Mirza[6],
the air hostesses of the Air India International Corporation had
approached the Supreme Court against the discriminatory service conditions in
the regulation of Air India. The regulations provided that an air hostess could
not get married before completing four years of service. If after reaching 23
years of age she got married, she could continue as a married woman but had to
resign on becoming pregnant. If an air hostess survived both these filters, she
continued to serve until she reached the age of 35 years. It was alleged on
behalf of the air hostesses that those provisions were discriminatory on the
ground of sex, as similar provisions did not apply to male employees doing
similar work. The Supreme Court in this case struck down the Air India
regulations relating to retirement and the pregnancy bar on the services of air
hostesses as unconstitutional on the ground that the conditions laid down
therein were entirely unreasonable and arbitrary. Both the regulations were
struck down as violative of Article 14, which prohibits unreasonableness and
arbitrariness.
Article 15 of the Constitution prohibits the
state from making discrimination “against any citizen on grounds only of
religion, race, sex, place of birth or any of them”.[7] To
bring equality between men and women the Constitution of India has prohibited
the State from making any kind of discrimination on the basis of sex
specifically. The Constitution has gone further and empowered the state to do a
positive act to give “preferential treatment” in favour of women in Article
15(3). Special laws can be made in favour of women and children.
The case of C.B. Muthamma v.
Union of India[8]is
of the petitioner who qualified for the Union Public Services and at the time of
her interview, the Chairman of the U.P.S.C. tried to dissuade her from joining
the Foreign Service. At the time of entry into the Foreign Service, she also
had to give an undertaking that if she were to get married, she would have to
resign from the service. On numerous occasions, the petitioner had to face the
consequences of being a woman and thus suffered discrimination even though the
Constitution specifically under Article 15 prohibits discrimination on the
grounds of religion, race, caste, sex or place of birth and Article 14 of the
Constitution provides the principle of equality before law. The Court observed
that discrimination against women, in traumatic transparency, is found in the
discriminatory rules of service. Thus, the Court struck down the rules as
violating the principle of equality.
In another case of Govt. of
A.P. v. P.B. Vijay Kumar[9]
the Supreme Court held that the reservation to extent of 30 percent made in the
state services by Andhra Pradesh Government to women candidates is valid. The
Division Bench of Supreme Court emphatically declared that the power conferred
upon the State by Article 15(3) is wide enough to cover the entire range of
State activity including employment under the State. Thus, making special
provisions for women in respect of employment or posts under the State is an
integral part of Article 15(3).
Article 16(1) of the Constitution of India
provides equality of opportunity in matters relating to employment or
appointment to any office under the State.[10]
This right to equality in matters relating to employment or appointment is only
in employment or appointment under “the State” that is in matters of
recruitment, promotion, wages, termination of employment, periodical
increments, leave, gratuity, pension, age of superannuation.
Article 21 of the Constitution of India
provides that “No person shall be deprived of his life or personal liberty
except according to procedure established by law.”[11]The
Right to Life under Article 21 would necessarily imply the right to live with
human dignity and would include those aspects of life that makes life
meaningful, complete and worth living. Gender discrimination has been
recognized as an obstacle to the full realization of the right to life under
Article 21.
In C. Masilamani Mudaliar v.
Idol of Sri Swaminathaswami Thirukoil[12]the
Court held that equality, dignity of person and the right to development are
inherent rights in every human being. For the meaningful enjoyment of the right
to life under Article 21, every woman is entitled to the elimination of
obstacles and of discrimination based on gender. The Court reiterated that the
State has an obligation to eliminate gender-based discrimination and to create
conditions and facilities conducive for women to realize the right to economic
development, including social and cultural rights.
The Supreme Court in Vishakha
v. State of Rajasthan[13]
held that each incident of sexual harassment of women at the workplace is a
violation of right to life under Article 21, which implies the right to
dignity. According the Court, the principle of gender equality includes
protection from sexual harassment and the right to work with dignity which had
been reflected in international conventions and norms.
This was reiterated in Bodhisattwa
v. Subhra Chakraborty[14]. The
Supreme Court stated that women have the right to life and liberty under
Article 21; similarly, they also have the right to be respected and treated as
equal citizens. The Court held that offences of rape were acts of aggression
aimed at degrading and humiliating women. Such offences are crimes against
basic human rights and are also violative of the fundamental right to life
under Article 21.
Article 39 provides that all the citizens, men
and women, have the equal right to an adequate means of livelihood.[15]
An obligation has been put on the State through this Article that it should
direct its policy towards securing equal pay for equal work for both men and
women and that the health and strength of workers, is maintained by the State.
The main principle behind this provision is “equal wages for equal work
irrespective of sex”. The Equal Remuneration Act, 1976, the Bonded Labour
System (Abolition) Act, 1976, the Factories Act, 1948, the Mines Act, 1952, the
Workman’s Compensation Act, 1923, the Plantation Labour (Amendment) Act, 1981
and several other statutes have been enacted to further the objectives laid
down in this Article.
Article 42 provides that the State shall make
provision for securing just and humane conditions of work and maternity relief.[16]
The Maternity Benefit Act, 1961 was passed to provide 12 weeks maternity leave
with wages to women workers and other benefits.
·
Protection by Legislation
A.
Indian Penal Code, 1860
The Law Commission of India after
taking into consideration the problems in existing laws for securing evidence
to prove dowry deaths, had inserted Section 113B of Indian Penal Code which
relates to presumptions regarding dowry death.[17]
Section 304B was introduced in the
IPC to deal with dowry death to take control of increased cases of dowry
related cruelty resulting into deaths. According to Section 304B, if death of
the married woman occurs within seven years of her marriage in unnatural
circumstances, it shall be considered as dowry death.[18]
Section 498A of IPC deals with
Cruelty against women. The section addressed cruelty by a husband and his
family towards a married woman in particular. Cruelty under this section can be
defined as the intentional infliction of severe pain or suffering whether
physical or mental.[19]
B.
Protection of Women from Domestic Violence Act, 2005
Very few provisions existed in India
on the issue of violence before the enactment of the Protection of Women from
Domestic Violence Act. 2005 (hereinafter referred to as the DV Act). Women were
not aware about any of their rights that existed in their matrimonial home.
They were often thrown out of their homes because of insufficient dowry,
harassment and cruelty. Women had to rely only on the Indian Penal Code to get
any relief. In the 1980s, two very important provisions were enacted to bring
the issue of domestic violence out of the four walls of homes. The first one
was Section 498A which made violence in marriage a criminal offence. The second
one was the insertion of Section 304B of Indian Penal Code which introduced the
offence of dowry death.
In 2001, the Government of India
circulated the “Domestic Violence against Women Prevention Bill, 2001” which
provided a mechanism to protect women who have become victims of domestic
violence and to let them approach the court. It also provided for the
provisions of protection order and protection officers. The Bill had a long
journey from 2001 when it was introduced in the Parliament, to 2005, when
finally, the Act was passed. The Protection of Women from Domestic Violence Act
was brought into force from October 2006.The Act was formulated to implement
Recommendation No. 12 of UN Committee on CEDAW which was ratified by India in
June, 1993.
The salient features of the Act are:
o
The
Act is the first attempt to recognise domestic abuse as punishable and to
provide emergency relief to the victims. Prime beneficiaries of the Act are
women and children.
o
Domestic
relationship is defined in the Act as any relationship between two persons who
live or have, at any point of time, lived together in the shared household.[20]
o
The
Act has taken into consideration all the forms of abuse such as physical,
sexual, emotional, verbal, psychological and economic abuse or threats of the
same through its definition provided in Section 3 of the Act.
o
The
Act ensures the woman’s right to secure housing. The Act provides for the
woman’s right to reside in matrimonial or shared household, whether or not she
has any title or rights in the household. This right is secured by Residence
Order.[21]
The woman is also entitled the right to an alternate accommodation if required.
o
Section
8 of the Act provides for the setting up and functions of Protection Officers.
These officers are appointed by the State Governments and they come under the
jurisdiction and control of the Court and are responsible for monitoring the
cases of domestic abuse. Protection Officers ensure that aggrieved people are
provided legal aid, medical services, safe shelter and any other assistance.
The duties of a Protection Officer are given under Section 9 of the Act.
o
The
Central Government has the duty under the Act to give Publicity to the
provisions of this Act, sensitize and make people aware on the issues addressed
by this Act.
o
The
various remedies available to an aggrieved person under the Act are-
§ Protection Orders under Section 18
§ Residence Order under Section 19
§ Monetary Relief under Section 20
§ Custody Orders under Section 21
§ Compensation Orders under Section 22
§ The Magistrate’s power to grant
interim and ex parte orders under Section 23.
o
Under
Section 18 of the Act, a Protection Order can be granted prohibiting the
respondent from committing any act of violence or alienating any asset belong
to the women, causing violence to the dependents of the aggrieved person or
committing any other act specified in the protection order.
o
The
woman under the Act has to be given monetary relief for meeting the expenses
incurred and losses suffered including loss of earning, medical expenses, etc.
o
Under
Section 21 of the Act, Magistrate may grant temporary custody of any child or
children to the aggrieved person or the person making an application on her
behalf.
C.
The Dowry Prohibition Act, 1961
Under this Act, both the giving and
receiving of dowry is prohibited. Dowry demands have been one of the prime
causes of violence against women, especially domestic violence which further
leads to female infanticide, female foeticide, dowry deaths, child marriages,
non-compatible marriages. The Act has been amended in 1984 and further amended
in 1986 to make the act stricter. The main feature of the Amending Act is that
minimum and maximum punishment has been given for the offence of giving and
taking dowry.
D.
Hindu Marriage Act, 1955
Section 13 of Hindu Marriage Act,
1955 deals with the grounds of Divorce. Cruelty has been laid down in the act
as a ground for divorce. In civil law, it is the only legal instance of
recognition of ‘domestic violence’. Cruelty is not limited to physical violence
but it may extend to behaviour towards spouse which may cause mental pain or
injury to mind as well.
E.
Right to Maintenance
Section 125 CrPC has been enacted
with the object to compel a man to take care of his wife and children and make
sure they are not neglected or left in a state of beggary and destitution. If a
wife is a victim of violence or cruelty by her husband, she can seek
maintenance from her husband. Even a single incident of wife beating is
sufficient for her to live separately and claim maintenance.
Section 24 of the Hindu Marriage Act
provides for maintenance pendente lite for either parties who are seeking a
divorce or judicial separation on the ground of cruelty or any other ground.
The Hindu Adoption and Maintenance
Act provides for maintenance to be provided by a Hindu husband to his wife in
cases of desertion, cruelty, etc.
Conclusion
In conclusion, the socio-legal
position of domestic violence in India remains a complex and pressing issue
that demands urgent attention and action. While significant strides have been
made in terms of legal frameworks and awareness campaigns, challenges persist
in effectively addressing the root causes and providing comprehensive support
to survivors.
Despite the existence of laws such as
the Protection of Women from Domestic Violence Act, 2005, implementation and
enforcement remain inconsistent, leaving many vulnerable individuals without
adequate protection or recourse. Moreover, deeply ingrained cultural norms and
societal attitudes often perpetuate a cycle of silence and stigma surrounding
domestic violence, hindering survivors from seeking help and accessing support
services.
Ultimately, addressing domestic
violence requires a multifaceted approach that tackles its socio-cultural roots
while also ensuring robust legal protections and support mechanisms for
survivors. By working together to confront this pervasive issue, we can strive
towards a society where every individual can live free from fear and violence
in their own homes.
[1]Goswami Samboth, Female Infanticide
and Child Marriage, 37 (2007).
[2]Myneni, S.R., Women and Law, 3
(2008)
[3]V.K. Dewan, Law Relating to
Offences against Women (2nd Edn. Orient Law House, 2000) 33.
[4]Kannan. B and S Ramdoss, “The Women
Victims of Alcohol Induced Domestic Violence and the Role of Community Police
in Kerala: An Emperical Study” LXIII IPJ 130 (2016)
[5]The Constitution of India, Art. 14
[6](1981) 4 SCC 335
[8](1979) 4 SCC 260
[9](1995) 4 SCC 520
[11]The Constitution of India, Art. 21
[12](1996) 8 SCC 525
[13](1997) 6 SCC 241
[17]The Indian Penal Code, Section 113B
[20]The Protection of Women from
Domestic Violence Act, Section 2(s).
Article Information
BEHIND CLOSED DOORS: UNVEILING THE SOCIO-LEGAL DYNAMICS OF DOMESTIC VIOLENCE IN INDIA
Authors: NISHTHA
- Journal IJLRA
- ISSN 2582-6433
- Published 2024/03/24
- Issue 7
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International Journal for Legal Research and Analysis
- Abbreviation IJLRA
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