|Legal Service India - Domestic Violence in Marriage: in the light of theories of Feminist Jurisprudence|
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Explaining Phenomena of Family ViolenceThe term ‘domestic’ denotes ‘within the realm or territory of home’. Violence that is committed on a woman by her married partner or his relatives is the major cause of domestic violence. This notion carries with it, the demolition of the assumption that home is a secured place for the protection of an individual. The women are made hostages at home in a way and their life becomes a prey to the whims and fancies of the people exercising violence. In fact, the horror present is even more formidable since law is hesitant to enter into the private sphere to address the wrongs committed against women.
It is not consensual, but rather a pattern of behavior used by an individual to maintain coercive control over another. The abusive behavior may become more frequent and severe. It is divided into 5 heads:-
1} Verbal abuse – like name calling, threatening, intimidating,
2} Emotional abuse- criticizing constantly, displaying extreme jealousy, publicly humiliating, isolating the partner, domination
3} Financial abuse- controlling the money, concealing joint assets, keeping the other impoverished, using partner’s money without consent. These abuses though may be witnessed in an infant form in the initial stages but in later stages they might take an inhumane form as listed below.
4} Physical abuse- pushing, slapping, hitting, kicking, choking, puling hair, biting, using weapons, tying the partner up, locking the partner in a room with denial of food
5} Sexual abuse- raping, physically attacking sexual parts, forcing the partner to perform sexual acts
As researched by various scholars there have been mainly three causes irrespective of the culture of the victims:-
1} Husbands had been used to the idea of solving their problems with wives through the use of violence.
2} They have effectively exercised violent control over others.
3} No one ever stopped them from being violent in the past.
According to Dr. Charlotte Watts “Violence is a highly stigmatized issue as society often blames women for the violence that they experience”. She conducted a WHO study in various countries like Ethiopia, Japan, Brazil, etc. designed to estimate the prevalence of violence. It was found out that the violent acts on woman by their intimate partners was continuous and at times didn’t end even when the woman was pregnant. In India, these features have been observed to a large extent.
It was also revealed that the majority of women considered abuse at the hands of their partners to be a ‘normal’ occurrence. This feature is most prevalent in Indian context. The feeling of ‘false consciousness’ is the culprit behind such ideas. Women under the false belief, identify with the opinion that once married to their husbands, they have to appease him in every way possible. They perceive it as their duty to go through the atrocities committed by partners, since he attains the place of God rather ‘Pati Parmeshwar’. They fear the strictness of the orthodox sentiments and are unaware of the prospect that the violence endured, could even be considered a crime or that they have a right to rebel. They accept the situation as their sealed fate. It is accepted as a norm by the abused woman. Also in developing countries like India, there has been found a general inadequacy of effective laws against the realm of domestic violence. The law fails to give enough attention to such areas which have long been ignored and domestic violence is one such area.
Not only that, in India various surveys have been conducted which revealed that such violence is mostly prevalent in rural areas as compared to urban areas. It has also been observed that women are largely ignorant about the laws that protect them from dowry deaths, harassments and violence at home. They are unaware of the new reforms undertaken. The Indian context would be discussed again in detail in subsequent parts.
Consequences And Statistics
Women, going through domestic violence have reported sleeping problems, depression, anxiety attacks, low self-esteem, lack of trust in others, feeling o abandonment, anger, sensitivity to rejection, diminished physical and mental health, inability to work and even poor relations with their relatives and loved ones. Such victimized women are more likely to report miscarriages and abortions, suicidal thoughts and attempts. The physical and mental health effects may last long after the violence has ended.
The children who grow up in such environment are rather confused, agitated from inside. Later in life, they have a strong inclination to turn aggressive. Moreover, the sons loose respect for womenfolk if they are used to seeing them in subversive position. The negative ideas are carried forth in the next generation.
In to a survey done by UNICEF in India, 6902 men were surveyed in the state of Uttar Pradesh during 1996. It was seen that 45% of the married men acknowledged beating up their wives.
According to Women’s Feature Service, every 6 hours in India, a young married woman is burnt alive, beaten to death, or forced to commit suicide.
Former additional commissioner of police, Sewa Doss, said that nearly 7,000 complaints of domestic violence are reported annually in Delhi. However most cases are tried very slowly.
Proportion of women suffering domestic violence in India varies between 20-45%. Country reports 2004 cited data from the Indian Ministry of Home Affairs, which claimed 130 reported cases of dowry deaths, 490 instances of rape and 1211 cases of cruelty by the husband or in-laws in Delhi alone.
According to the Hindu, a study cited ‘unequal citizens: a study of Muslim women in India’ and published by Oxford Press, greater proportion of women suffered from violence than Muslim women. Research conducted in Kerala; found that approx. 49% of women who didn’t own property were victims of violence at home against 7% of those who did. However, this result could be due to underreporting among the more privileged women.
According to the Tribune of Chandigarh, domestic violence is increasing in Punjab since link between alcoholism and violence could be seen and Punjab had the highest per capita consumption of alcohol.
Now if we look at some cases of domestic violence, you can see it’s an issue of global concern.
In New York, USA, in People vs. Cahill case, Jill Cahill was beaten in the head with aluminum baseball bat, repeatedly by her husband and later murdered by him while in coma.
In Saudi Arabia, Rania Al Baz had to go through beating just because her husband found her talking on the phone in his absence. He repeatedly smashed her face against the marble floor and walls and tried to strangle her. He left her unconscious in a hospital where her face was found fractured in 13 places.
When one comes across such hideous cases of atrocities, one is left to ponder over the rampant display of violence. In India women are sacrificed at the altar of unjustified reasons: be it inadequacy to pay dowry, failure to respond to sex in trying circumstances etc.
Laws Against Domestic ViolenceIn 1983, domestic violence was recognized as a specific criminal offence by the introduction of section 498-A into the Indian Penal Code. It highlights the criminal dimension of mental and physical cruelty inflicted by the husband or his relatives for reasons that may extend beyond ‘unlawful demands’. It is believed to have a strong deterrent value because of its immediate repercussions. It classifies such violence as cognizable offence, so the accused can be arrested without a warrant. It also gives a woman a lawyer to negotiate a solution to her plight.
Four types of cruelty are dealt with by this law:-
• Conduct that is likely to drive a woman to suicide.
• Conduct which is likely to cause grave injury to the life, limb and health of the woman.
• Harassment with the purpose of forcing the woman or her relatives to give some property.
• Harassment if the women’s relatives couldn’t yield to demands for more money or property.
The punishment is imprisonment for up to three years and a fine. The complaint could be lodged by the person itself or by any relative on her behalf. This is an important merit since the victimized women are often not in a position seek help.
The forms of ‘cruelty’ recognized by the Indian courts are persistent denial of food, insisting on perverse sexual conduct, constantly locking a woman out of the house, denying the woman access to children- thereby causing mental torture, physical violence, taunting-demoralizing and putting down the woman with intention of causing mental torture, confining the woman at home and not allowing her normal social intercourse, abusing children in their mother’s presence and denying the paternity of children with the intention of causing mental torture and threatening divorce until dowry is given.
The matrimonial home is the household a woman shares with her husband, whether it is rented, officially provided or owned by the husband or his relatives. She has the right to remain in that home as long as she is married. If the victim is being pressurized to leave the home, she can ask the court for an ‘injunction’ or ‘restraining order’ protecting her from being thrown out. An injunction is a court order directing a person to do or not to do something.
The IPC addresses dowry death in section 304B. If a woman dies of ‘unnatural death’ within 7years of marriage and has been harassed for dowry before her death, the courts assume that the death is due to it. A dowry death is punishable by imprisonment of at least 7 years.
Under section 306, it deals with the crime of abetting a woman to suicide.
If a woman is judicially separated, her husband cannot have sexual intercourse with her without her consent. Section 376-A of IPC deals with it.
Indian President A.P.J. Abdul Kalam gave assent to domestic violence bill, 2005 which aims at protecting women from verbal, economic, emotional and sexual abuses.
As per the Act, a police officer, protection officer, service provider or magistrate who receives a message of domestic violence shall inform the aggrieved person of her right to make an application for obtaining relief by way of protection order. The Act provides the rights for free legal services under the Legal Services Authorities Act,1987 and right to file a complaint under Sec. 498-A of the IPC, wherever relevant. The aggrieved person may be provided shelter in the home and also medical facilities, if needed. Any woman subjected to mental/physical injuries, physical abuse, criminal intimidation by force, sexual abuse (any conduct of a sexual nature that abuses, humiliates, degrades, or otherwise violates the dignity of woman), will be covered under domestic violence. The state governments may appoint, by notification, such number of protection officers, as far as possible women, in each district as may be considered necessary and shall notify the area within which a protection officer may exercise the powers and perform duties conferred on him or under this Act.
On the international sphere, the Beijing Declaration, 1995 condemned domestic violence. It was discovered there was a lack of information about the prevalence, nature, causes and consequences of global violence against women and that not having the knowledge was an obstacle to the development of effective intervention strategies. It offers to help research projects undertaken in this hitherto unexplored sphere.
The Universalistic Human Rights approach put forth in Universal Declaration of Human Rights supports the crusade against domestic violence since it favors protecting the basic right of everyone to live a dignified life. CEDAW (Convention on Elimination of Discrimination Against Women) makes it mandatory for its member nations to make laws prohibiting domestic violence. It also receives reports from the members about the steps taken in this direction. Fortunately, India is a member of CEDAW.
Theoretical Perspectives of Mackinnon And WestCatherine Mackinnon in her article ‘Difference and Dominance’, 1984 in ‘Feminism Unmodified’ has argued how sex has become a parameter of distinction between man and woman hindering equality. It is the concept of treating likes alike and unlikes unlike, thus the definition of sex has been restricted to the narrow idea of their mutual unlikeness. The laws discriminating among people on the basis of sex support this idea. It brings a kind of conflict between equality which advocates sameness and sex which advocates difference.
There are two ways available to a woman to gain liberty under such circumstance:-
1} to be the same as man – The woman in such case has to measure up to a certain standard. She has to live the life of a ‘man’. She has to prove to the society that she is identical to him. It is considered as gender neutrality. It is supposed to encourage formal equality.
2} to be different from man – Here, some type of a rule of sex discrimination comes into play, recognizing the obvious difference between a man and a woman.
Gender neutrality is thus married to the concept of male as a parameter. In both ‘same’ and ‘unlike’ ways, female is compared to a male.
Mackinnon has termed the second way as ‘difference’ approach, as the whole concept is revolving around difference in sex. According to her theory, on the first day difference between man and woman arose, on the second day division was created and on the third day dominance arose without any rational explanation. Among these, difference is most real and justified. She argues that in society, women have been carrying the burden of being ‘different’, and then the compensation for this discrimination should be worth the trouble. But women have been excluded from contact jobs in male only prisons for the fear that they would be raped. The courts also take into account the temptation of prisoners, and instead of stopping them, take away the rights of the woman. Excluding woman from the situation is the easiest option when equality and sex create an in-built tension.
So actually men have it both ways. If they want to be the same, then equality is chosen and if they want to be different to promote their interests, then again woman suffers. Woman’s equality is thus a prey to the whim and fancy of man.
In her ‘dominance’ theory, she states that the whole point of woman’s weakness is the things done to her are not done to a man. For e.g. marital rape in domestic violence. Her suggestion is equal protection of laws “where protection is not a dirty word and equality not a privilege”.
Robin West in ‘the difference in women’s hedonic lives: a phenomenological critique in feminist legal theory’ states that women’s subjective, hedonic lives are different from men’s as the quality and quantity of suffering is distinct from that of man’s. Reasons for this are:-
• Women find the same event painful which men find pleasurable e.g. rape
• Men are oblivious to the painful torture through which the women go.
The women’s distinctive, gender-specific injuries are treated as trivial e.g. sexual harassment on street. Legal culture doesn’t pay heed to women’s problems because those in power hardly care for the disempowered. Feminist theorists fail to cover certain areas because of such problems:-
• Linguistic- women lack descriptive vocabulary necessary to convey the ‘different’ pain suffered.
• Psychological- before convincing others about the gravity of their problems, women need to be convinced themselves.
• Political- when subjugation is offered for the resistant efforts taken, it discourages women.
West gives her opinion on two forms of feminist theory;-
1} liberal feminism- According to it, women should be given freedom of choice in economic, political and personal areas since her free consent determines her welfare. It is based on the assumption that women are same-equal to men. But, West argues that women sometimes don’t consent to changes to satisfy her desires rather to appease the desires of others- ‘giving selves’. Then the liberal’s presumption that essentially wishes are taken selfishly on the basis of one’s own interests, won’t apply on such women. It would risk missing the real cause of woman’s misery.
2} radical feminism- According to it, feminists want more power for women since they are not equal to men in society. Their principles are:-
Submission makes women miserable and substantive equality will make her happy. Women should oppose not what makes them miserable- the expropriation of sexuality but the hierarchy of power that facilitates it. Women are victims of ‘false consciousness’ if they are at odds with the equalitarian idea.
But West argues that desire ‘sexual submission’ is judged to be ‘false’ not because the woman considers it such rather someone else has come to judge it as such. Once again, women’s choice will be dictated by someone else’s conception of sexual right/wrong.
West’s suggestion is to insist on women’s humanity, on the ‘difference’ of choice she has when compared to men. The aim should be simply to increase women’s happiness and to lessen her pain. Women should speak out about their unique pain in their internal lives.
Application of The Theories
According to Mackinnon, society treats women either differently or equally to men to suit the convenience of ‘man’. In India, women don’t generally report cases of domestic violence. This hesitance on the part of the women is partly due to the burden of expectation which the society has from her and not from the husband. The wife is blamed for the failure of a marriage. The woman who offers resistance and is not thus unable to sustain her marriage is looked down upon, as someone who failed to perform her duties as an ‘ideal wife’. Divorcees are either shunned or looked upon by ‘hungry/ penetrating’ eyes. Another example of where women are treated differently to men because of their sexual difference is in education. Some of the Indians have this notion that women are not entitled to sound education and job and their only duty is to look after the household. Even educated women are married off before they could secure a job. So when such women try to rebel against the domestic injustice meted out to them, the question of financial security after separation faces them. In such cases, even the women’s own parents refuse to help. The parents are imbued with the idea that they partake off their duties towards their daughters after marrying them.
Moreover, men also sometimes choose to advocate ‘sameness’ formal equality to suit their interests as opined by Mackinnon. The few laws through which Indian women can legally fight are being criticized by men’s organization which claims that law is being misused by the women to harass their husbands. Men are wrongfully imprisoned because the law allows a man to be arrested solely on the testimony of a woman.
According to West, there is a biological difference between a man and a woman. Right from prehistoric times, man has undertaken the tougher task of hunting while women had taken over the lighter task of household duties. A man is generally physically stronger than a woman. Being frail in body, she couldn’t possibly offer effective resistance against a man’s physical advances and violence. This leads to the discrimination of man being the stronger, and therefore the more dominant being.
As put forth by West, women sometimes themselves trivialize their suffering. In India, the woman victim transforms her pain into punishment, pleasure, inevitable and natural. Instead of speaking out, she tries to suppress her pain. Therefore, her response is to endure the pain by giving it a more acceptable form.
West argues that women are ‘giving selves’ maybe because of her biological pregnability. Women are by nature sacrificing, loving, nurturing beings because of the innate sense of motherhood in them. Some of them are willing to go through traumatic marital experiences provided their children develop in a healthier atmosphere of united family. As West puts it, they respond by changing themselves rather than protesting against the conditions which cause it.
• One of the drawbacks of Indian laws is there is no prohibition or stopping marital rape. Sexual intercourse without a wife’s consent within a marriage is not termed ‘rape’ legally. As observed by Justice Pasayat- ‘while a murderer destroys the physical frame of victim, a rapist degrades and defiles the soul of a helpless female’. Since it occurs within the confines of home, as in other forms of domestic violence, there are often no witnesses. Excessive demand for sex comes under ‘cruelty’ and may entitle a woman to divorce. Marital rape can be more damaging than rape since it is repeated number of times and the victim feels emotionally betrayed by her own loved one. Strict law against such form of rape should be enacted.
• Moreover, the woman actually becomes homeless when her husband or in-laws come back from jail. They should therefore be given alternative assistance. Some women, who face threat of life, should be kept protected by law while they await justice. This gives them the necessary assurance to move ahead with their protest.
• It has been seen that male police officials in India are hesitant in filing complaints because of its adverse impact on husband’s family. The husband’s family often proposes withdrawing the case as a precondition for an easy divorce. The stat still considers home violence as an element of private world and remains conscious of an ‘invalid encroachment’. To help more women in seeking relief and making such violence more amenable to legal intervention, the law should rise above such the public-private dichotomy and give preference to human rights.
• Individual country reports should be created about domestic violence so that a reliable study could be made in international forums like CEDAW. Fast Track courts in India lack punitive power- so more resources should be provided to them and to police stations in terms of competent personnel, maintenance and authority. The authorities should stop taking women’s issues as secondary and relegating them to later dates according to leisure. We should encourage collaboration between NGO’s and state to prevent duplication of service/surveys and ensure better utilization of scarce resources. Gender sensitization programs advocating women’s right to life, liberty should be part of the curriculum of training of police, judiciary, bureaucracy etc. Regular training is more common for senior officials but it is at lower rank that constant skill upgrades and checks are needed since they are directly in touch with the victims. Raise public awareness and provide assurance to the women by showing solutions to their problems.
A strong crusade against domestic violence could be launched only when we try to implement the already-existing measures. Making more laws is not the only solution. Its only when we are sincere in our efforts at the grassroots level also, we can expect a change to happen. It is through a collective determination to support women’s rights not only ‘outside’ but also ‘inside’ the hitherto restricted boundary of home, that we can attain the objective of destroying the well-embedded thorns of domestic violence from our society.
1. Manushi, 1ssue 137, November 2003
The author can be reached at: firstname.lastname@example.org / Print This Article
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