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Gender Bases Violence

Understanding the varying dimensions of violence against women and the impact of juridical and legal modes of reparation on their well-being is the main theme of the present paper. The primary objective of this paper is to study and analyses if the stereotypical legal remedies provided to Indian women have been able to yield the desired result of enhancing equality and harmony in society by mitigating violence against women or not.

Are these conventional and typecast legal solutions enough to eliminate gender violence from Indian society? Is there any need to rephrase or overhaul Indian laws or remedies to satiate the need for peace and dignity to all women? Can there be some piecemeal or problem-based solutions to women issues, especially related to violence?

Are available ready-made legal solutions capable of ensuring 'justice' to women to all kinds of their problems emanating from 'violence' inside and outside the house, when we all know that 'violence' affects and shatters anyone not only physically, but emotionally, psychologically and often, permanently. Laws and legal remedies evolve and shape with the passage of time, as a process, which can never be only juridical, but should be social and political also.

'Gender violence' is a transnational subject, and more importantly during present times of pandemic, stress and anxiety. There is an urgent need to create and innovate workable solutions with full active participation of women therein. A new zero violence society is the urgent need of the hour.

Gender violence is said to be 'any act of gender-based violence that results in, or is likely to result in, physical, sexual or psychological harm or suffering to women, which includes threats of violence, coercion or arbitrary deprivation of liberty, whether public or private. This kind of violence covers a broad range of acts occurring in the family, workplace or any other place including battering, beating, assaulting, sexual abuse or dowry-related violence etc.

(UNECE 2020).[1] It is a violation of human rights of women, a cause and consequence of gender inequality and discrimination against women in general and impacting women's adversely and severely. It is very difficult to track the history of violence against women, but it is quite clear that much of the violence is accepted, condoned and even legally sanctioned by women themselves, due to their vulnerabilities or social conditioning. [2]

The historical view of women as property and a gender role of subservience in patriarchal society, in almost all world systems in which gender inequalities exist and are perpetuated. Kinds of Gender Violence Gender based violence is violence directed against a person due to that person's gender and vulnerability thereof.
  • Physical: Act or conduct which causes bodily pain, harm or danger to life etc. It also results in injuries, distress and health problems. Typical forms of physical violence are beating, strangling, pushing, with or without the use of weapons. It also includes assault, criminal intimidation and criminal force
  • Sexual: It includes sexual acts, acts to traffic, or acts otherwise directed against a person's sexuality without the person's consent or knowledge, which 'abuses, humiliates, degrades or otherwise violates the dignity of a woman.
  • Psychological: It includes psychologically abusive behaviors, such as controlling, coercion, economic violence and blackmail. It may be verbal, physical or other non-verbal conduct, which may result into mental distress, anxiety issues and various other mental and physical disorders.
  • Economic: Scarcity of basic resources or lack of money to ensure basic needs can be called as economic violence. Deprivation of financial resources required for survival of the victim and her children, the disposing of any assets which the victim has an interest/stake in and prohibition/restriction of use of financial resources etc. are included in economic violence.
  • Female Genital Mutilation (FGM): FGM is the ritual cutting or removal of some or all of the external female genitalia. It violates women's bodies and often damages their sexuality, mental health, well-being and participation in their community. It may even lead to death.
  • Forced marriage: It refers to a marriage concluded under force or coercion which may either be physical pressure or emotional and psychological coercion.
  • Online violence: It includes all sorts of illegal or harmful behaviors against women in the online space. It may be linked to experiences of violence in real life, or be limited to the online environment including illegal threats, stalking or incitement to violence, unwanted, offensive or sexually explicit emails or messages, sharing of private images or videos without consent, or inappropriate advances on social networking sites.

Causes of Gender Violence:

Gender violence or gender-based violence (hereinafter GV or GBV) is taken primarily as violence against women which is often considered as a mechanism to subjugate women generally or in interpersonal relationships. [4]This kind of violence usually arises from the sense of entitlement, superiority, misogyny or similar attitudes of the perpetrator or motivated by aggression, revenge or competition, due to which women feel threatened and become vulnerable and weak.

They are forced into a subordinate position and become susceptible as compared to men. At least one out of every three women around the world is beaten, coerced into sex, or otherwise abused in her lifetime and many a times, the abuser is someone known to her.

International Legal Regime:

Many international legal instruments aim to eliminate violence against women such as the UN Declaration on the Elimination of Violence against Women, 1993 states, 'violence against women is a manifestation of historically unequal power relations between men and women, which have led to domination over and discrimination against women by men and to the prevention of the full advancement of women, and that violence against women is one of the crucial social mechanisms by which women are forced into a subordinate position compared with men.'

The Istanbul Convention (Council of Europe Convention on preventing and combating violence against women and domestic violence) of the Council of Europe, which describes violence against women (VAW) 'as a violation of human rights and a form of discrimination against women' and includes 'all acts of gender-based violence that result in, or are likely to result in, physical, sexual, psychological or economic harm or suffering to women, including threats of such acts, coercion or arbitrary deprivation of liberty, whether occurring in public or in private life' (European Commission 2016). [5]

The Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW, 1979, UN General Assembly), also made recommendations relating to equality and non-discrimination against women in all spheres of life. Vienna Declaration and Programme of Action 1993 specifically mentions that gender based violence and all forms of sexual harassment and exploitation, including those resulting from cultural prejudice and international trafficking, are incompatible with the dignity and worth of the human person, and must be eliminated (Article 18, Also see, Declaration on the Elimination of Violence Against Women, 1993).

In 1996, the World Health Assembly (WHA) declared violence a major public health issue, and included in the subtypes recognized were intimate partner violence and sexual violence, two kinds of violence often perpetrated as violence against women. In 1994, the Violence Against Women Act or VAWA, legislation was passed which required a strengthened community response to crimes of domestic violence and sexual assault and strengthened federal penalties for repeat sex offenders. Later this Act was further strengthened and extended to immigrant victims, elderly victims, victims with disabilities, and victims of dating violence, youth victims etc.

Beijing Declaration and Platform for Action (1995, paragraphs 112-130) inter alia, states that the violence or abuse against women and their widespread exclusion from institutions of power and governance, violates and impairs or nullifies the enjoyment by women of human rights and fundamental freedoms.

In all societies, to a greater or lesser degree, women and girls are subjected to physical, sexual and psychological abuse that cuts across lines of income, class and culture. The UN also created the Trust Fund to Support Actions to Eliminate Violence Against Women. In 2013, the United Nations Commission on the Status of Women (CSW) adopted, by consensus, Agreed Conclusions on the elimination and prevention of all forms of violence against women and girls.

Indian Legal Regime: 6
There is a plethora of legislations enacted to safeguard women from violence and ensure dignity and equality in society. Most of the enactments provide similar kinds of institutional or administrative remedies. The basic hypothesis of this paper is to study whether these stereotypical remedies are sufficient enough to provide relief to the violated women or not.

Are these conventional and typecast legal solutions enough to eliminate gender violence from Indian society? Is there any need to rephrase or overhaul Indian laws or remedies to satiate the need for peace and dignity to all women? Can there be some piece-meal or problem-based solutions to women issues, especially related to violence?

Are available ready-made legal solutions capable of ensuring 'justice' to women to all kinds of their problems emanating from 'violence' in and out of the house, when we all know that 'violence' affects and shatters anyone not only physically, but emotionally, psychologically and permanently. [7]

To understand the practical implications of available legal remedies, the author takes up two legislations viz. the Protection of Women from Domestic Violence Act, 2005 and the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal Act, 2015) to analyses the remedies available thereunder.

GBV in COVID-19 pandemic in India:

[8]The introduction of social distancing and lockdown-type, stay-at-home measures has resulted in conditions conducive to physical, emotional, and sexual abuse of the most vulnerable members of the society. Those who are abused by family members, often have little or no access to the usual routes of escape. As such, the world has witnessed a surge in domestic violence cases since the onset of the COVID-19 pandemic (Townsend, 2020).

In India, the number of domestic violence complaints received by the National Commission of Women (NCW) had doubled from the first to the final week of March 2020. In considering this increase and to be more accessible to women, the NCW announced a WhatsApp number to receive complaints. However, many women may still find it difficult to make a complaint because they need access to either a landline or a mobile phone and be sure that they wouldn't be overheard by the abuser (EPW Engage, 2020).

Further, Ant´┐Żnio Guterres, the United Nations (UN) secretary-general, said: "I urge all governments to make the prevention and redress of violence against women a key part of their national response plans for COVID-19" (see Fang, 2020).

In a letter to the Editor of Child Abuse & Neglect, an international scientific journal publishing articles on child welfare, Dave and Yagnik (2020) noted that children have become the most vulnerable population during the pandemic. The introduction of draconian lockdown measures has resulted in increased number of child abuse cases being reported to the CHILDLINE India. Between the 20th and 31st March, about 300,000 calls were received, showing almost 50% increase in calls in just 10 days.

Further, before the pandemic, the National Crime Record Bureau in India estimated that 40,810 children were sexually victimised. Since in 95% of these cases the perpetrator was known to the victim, it is expected that many more children will suffer sexual victimisation during the pandemic. The authors have recommended that a school counsellor is appointed in each school to strengthen the first line of defence against child maltreatment.
  1. National Policy for the Empowerment of Women:
    The National Policy to bring about the advancement, development and empowerment of women through a process of change in societal attitudes towards them, to eliminate all forms of discrimination against women and to ensure active participation of women in all spheres of life and activities. The Policy stresses on the need to change societal attitudes and community practices discriminatory to women.

    [9]The Policy prescribes affirmative action in areas such as Legal System, Decision Making Structure, Mainstreaming of Gender Perspective in Development Process, Economic Empowerment through increased access to resources like micro credit, better resource allocation through Women's Component Plan, Gender Budget exercises and development of Gender Development Indices and Social Empowerment of Women through, inter-alia, universalization of education, adoption of holistic approach to women's health etc.

    Para 7.1 of the Policy lays down that 'all forms of violence against women, physical and mental, whether at domestic or societal levels, including those arising from customs, traditions or accepted practices shall be dealt with effectively with a view to eliminate its incidence. Institutions and mechanisms/schemes for assistance will be created and strengthened for prevention of such violence, including sexual harassment at workplace and customs like dowry; for the rehabilitation of the victims of violence and for taking effective action against the perpetrators of violence. A special emphasis will also be laid on programmes and measures to deal with trafficking in women and girls.'
  2. The Protection of Women from Domestic Violence Act, 2005:
    [10] It has expanded the definition of domestic violence to include any act (omission or commission) which harms, injures, or endangers the physical or mental well-being of a woman, and includes physical, verbal, emotional, sexual or economic abuse. [11]The 'domestic relationship' has also been defined as a relationship between two persons who have lived together in a shared household at one point of time, and are related by blood, marriage, relationship in the nature of marriage (including live-in relationships), adoption, or are family members.

    Thus, this Act covers all women who may be mother, sister, wife, widow or partner living in a shared household under any kind of relationship, may it be marriage, adoption or live-in etc., who is or has been subjected to any act of violence. Any aggrieved person or any other person or the Protection officer on behalf of the aggrieved person may file a complaint against any adult male or female member, relatives of husband or the male partner etc.

    To the Magistrate seeking one or more reliefs provided under this Act. The complaint must contain facts of the case and the reliefs sought along with all the personal details of the parties. After scrutiny of the complaint by the court, it orders to the PO for preparation of 'Domestic Incident Report' (DIR) which is then entertained by the court and decided after hearing the parties.

    As per the provisions of the DV Act, Protection officers, preferably women act as a liaison between the aggrieved women and the system, and are empowered to provide first-hand assistance to an aggrieved woman by informing her of her rights, making a domestic incident report or submitting an application, and ensuring that facilities such as legal aid, shelter homes, medical facilities etc. are provided to her.

    The reliefs sought by the aggrieved person may include a relief for issuance of an order for payment of compensation or damages for the injuries suffered due to the acts of domestic violence, including mental torture and emotional distress (The Protection of Women from Domestic Violence Act, 2003, Sections 12 and 22) monetary reliefs to meet the expenses incurred and losses suffered by the aggrieved person.

    And any child of the aggrieved person as a result of the domestic violence and such relief may include but is not limited to the loss of earnings, medical expenses, the loss caused due to the destruction, damage or removal of any property from the control of the aggrieved person apart from the maintenance for the aggrieved person as well as her children etc.

    Mediator may also be appointed by the Court who may try to solve the matter through conciliation or if it is not possible, the framing of charges and the adjudication is done to resolve the whole matter.
  3. The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2015:
    [12]It is a relatively new piece of legislation. Due to its jargonistic text, it is not easy to understand its intent and application in various scenarios in real-life situations. But it is amply clear that the sexual harassment of women at workplace violates their fundamental rights enshrined under Articles 14,15,19 and 21 of the Constitution of India.

    The Act lays down guidelines, norms and procedures to be observed which are mandated for all kinds of employers and institutions, whether public or private sector. All complaints regarding sexual harassment of a woman employee must be dealt by the Internal Complaints Committee (ICC), which is required to be headed by a woman employee with minimum half of its members comprised of, only women (The Sexual Harassment of Women at Workplace - Prevention, Prohibition and Redressal - Act, 2015, section 4). ICC may initiate an investigation, in case a complaint is received/ forwarded by any source of authority, but as long as the complainant agrees to take the matter forward with them (Ibid., section 9). [13]

    There is no bar to continue with any other kind of parallel proceedings with any other forum as this Act provides supplemental remedies for the women (Shital Prasad Sharma v. State of Rajasthan and Ors. 2018 SCC Online Raj 1676). ICC conducts an independent inquiry or investigation in accordance with the principles of natural justice, in accordance with the provisions of the Act (The Sexual Harassment of Women at Workplace - Prevention, Prohibition and Redressal - Act, 2015; Sarita Verma v. New Delhi Municipal Corporation & Ors.).

    The final report of ICC must be detailed and well-reasoned, providing a complete basis and rationale for arriving at the concluded decision (Ashok Kumar Singh v. University of Delhi, Delhi High Court WP 7371 of 2016). Any person aggrieved by the report may file an appeal to the employer or to the appellate authority as envisaged under the Act or may go the Judicial court for the appropriate relief.
  4. Dowry Prohibition Act
  5. 1986 - Indecent Representation of Women (Prohibition) Act
  6. 1986 - Child Labour (Prohibition and Regulation) Act
  7. 1987 - Commission of Sati (Prevention) Act
  8. 2012 - The Protection of Children from Sexual Offences Act
  9. 2013 - Criminal Law (Amendment) Act

Domestic Violence against Men:
Violence against men by women has become a common problem today. This includes economic, physical, sexual, and emotional abuse, as well as psychological abuse that harms a person's psychological and physical health. Men as well as women are victims of gender-based violence.

In a country like India, which has been male-dominated for centuries, people find it hard to believe that men can be victims of domestic violence just like women. So, there may be a reason why do[14]mestic violence against men is not recognized in any law in India. However, contrary to popular belief, the number of men, being psychologically and physically abused by women is increasing.

Given the existing laws in the country, there are no laws that protect men from intimate partner violence, under the Indian Penal Code of 1860, Section 498A explains that a man can only be held liable for practicing violence against his wife, there is no provision in the whole Act which makes the women responsible of the same. Similarly, Section 3 of the Protection of Women from Domestic Violence Act of 2005 states that it only protects women from such violence. No rule in the Act protects men from such violence. Having such a law gives a presumption that, men are always guilty, while women, on the other hand, are always innocent.

[15]Apart from the law, there exist some other reasons that could cause such cases to go unreported, these may include - the societal assumption that men are strong and hard to cry, or if they get legal help, it can cause discomfort for them and their families, and the list goes on. According to a survey of 1,000 married men aged 21 to 49 in rural Haryana, one in ten men aged 18 and above has experienced domestic violence. Research shows that men as well are the victims of such violence and not only women.

There is no reason to deny that, women are subjected to intimate partner violence by men. But it does not hold any reasonable ground for not having any law to protect men from the same. [16]Everyone is subject to human rights and gender equality. Article 14 of the Indian Constitution guarantees citizens the fundamental right to equal treatment, and Article 15 prohibits discrimination based on religion, race, sex, caste, or place of birth. The Indian Constitution states that all citizens have the right to life and liberty.

It is therefore necessary to make the necessary changes to the existing legislation. There is also a pressing need to pass gender-neutral laws so that perpetrators can be punished and victims can receive treatment irrespective of their gender. Therefore, to prevent and reduce domestic violence in this field, gender-neutral laws must be applied and sexist laws must not be enacted.

Gender Neutrality:
Every human being has the right to be treated equally with dignity, no matter what caste, gender, creed, and religion that person belongs to. [17]Thus, gender-neutral rights are very important in every country as it gives all the citizens of the country the right to be treated equally with dignity. As Ubi Jus Ibi Remedium says, for every wrong, the law provides a remedy, hence in the Constitution of India, there are several remedies or preventive guidelines for all the discriminations that the citizens of the country are subjected to.

It is extremely unfortunate that the Indian Laws perception of rape is solely based on the belief that a victim of rape has to be a woman.

This belief completely chalks out the fact that men and transgender people are also subjected to rape, as well as, physical assault and does not give equal importance to the rapes and sexual assaults on men and transgender people compared to sexual assault or rape of a woman.

Thus, the lack of gender neutrality is evident and it is to be noted that the punishment for such heinous crimes should be equal irrespective of the gender of the victim. Moreover, it is assumed that the rape is entirely an act of sex to satisfy the sexual desire of the perpetrator which has been contradicted with the growing awareness that sexual assault is not an act of lust but also an act of showcasing the dominance over one caste, community religion.

[18]Thus, there is no reason for which men or transgender people cannot be subjected to rape or sexual abuse.

Similarly, the precedent from the landmark case, Vishakha and others v. State of Rajasthan [i] safeguarded the rights of the women facing sexual assault in the workplace but similar laws for men or transgender people has not yet been spoken about.

In State Govt. v. Sheodayal (1956), [ii] Madhya Pradesh (M.P.) The high court opined that the modesty of a woman can be outraged by another woman under the purview of Section 354 of IPC.

Role of the Constitution in prevailing gender neutrality in India:
  • [19] The Constitution of India is the law of the land hence it has been constituted with the responsibility to ensure the safety and security of the citizens of the country.
  • As Article 14[iii] states, The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.
  • Article 15[iv] of the Constitution states, Prohibition of discrimination on grounds of religion, race, caste, sex, or place of birth.
  • The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them.
  • No citizen shall, on grounds only of religion, race, caste, sex, place of birth or any of them, be subject to any disability, liability, restriction, or condition with regard to:
    • access to shops, public restaurants, hotels, and palaces of public entertainment; or
    • the use of wells, tanks, bathing ghats, roads, and places of public resort maintained wholly or partly out of State funds or dedicated to the use of the general public
  • Nothing in this article shall prevent the State from making any special provision for women and children.
  • Nothing in this article or in clause (2) of Article 29 shall prevent the State from making any special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes.
  • Article 16[v] of the Constitution states, Equality of opportunity in matters of public employment.
  • There shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State
  • [20]No citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth, residence, or any of them, be ineligible for or discriminated against in respect of, any employment or office under the State
Nothing in this article shall prevent Parliament from making any law prescribing, in regard to a class or classes of employment or appointment to any office under the Government of, or any local or other authority within, a State or Union territory, any requirement as to residence within that State or Union territory prior to such employment or appointment

Nothing in this article shall prevent the State from making any provision for the reservation of appointments or posts in favor of any backward class of citizens which, in the opinion of the State is not adequately represented in the services under the State

Nothing in this article shall affect the operation of any law which provides that the incumbent of an office in connection with the affairs of any religious or denominational institution or any member of the governing body thereof shall be a person professing a particular religion or belonging to a particular denomination

[21]Lack of gender neutrality in Indian Rape laws:
According to India, Section 375[vi] of the IPC, as amended by the Criminal Law (Amendment) Act, 2013 states that: A man is said to commit rape if he:
  • penetrates his penis, to any extent, into the vagina, mouth, urethra, or anus of a woman or makes her do so with him or any other person; or
  • inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra, or anus of a woman or makes her do so with him or any other person; or
  • manipulates any part of the body of a woman so as to cause penetration into the vagina, urethra, anus, or any part of the body of such woman or makes her do so with him or any other person; or
  • applies his mouth to the vagina, anus, urethra of a woman or makes her do so with him or any other person,
  • Section 375 of the IPC solely talks about what is considered to be rape and it is specified that it is considered rape only when the victim is a woman.
Section 377 [vii] of the IPC states:
Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.

Section 377 talks about any unnatural intercourse with any man, woman, or animals that are punishable up to ten years of imprisonment along with fines. Thus, no separate defined laws have been created for men or even transgender people.

Gender violence is a transnational subject, and has been aggravated during present times of pandemic, stress and anxiety. Structural violence precipitate due to deep seated inequalities, more so because women are conditioned to grant others power over them and often condone its abuse. Legislative, administrative or judicial interventions may not suffice because violence against women is a deep-rooted social problem.

Men, women and the whole society has to understand the problem and dilemmas connected with it and faced by women. All have to work earnestly to eradicate this menace. We know that women tend to face greater risks during emergencies, including health disasters such as pandemics.

There is an increase in violent, abusive, impulsive, compulsive, and controlling behavior and aggression directed towards cohabiting partners and women. By improving status of women in society, ensuring self-identity and financial independence with the help of skill enhancement and education, gender-based violence may be minimized or eliminated from the patriarchal society. Emphasis must be on prevention rather than punishment.

Women must be made aware of their rights and empowered enough to speak otherwise no institutional remedy can provide the required solace. As domestic violence is often shrouded in silence, owing to pervasive shame and fear, women must be provided with courage to come out, with the help of awareness, education and independence.

Moreover, domestic violence is intergenerational, women whose mothers faced domestic violence, are twice as likely to have themselves experienced spousal violence. [22]There is thus, a clear need to break the cycle of violence.

  • Ashok Kumar Singh v. University of Delhi (Delhi High Court WP 7371 of 2016). Beijing Declaration and Platform for Action, 1995, paragraphs 112-130, Available at:
  • Declaration on the Elimination of Violence Against Women, Proclaimed by UN General Assembly resolution 48/104 of 20 December 1993. Recommendation Rec(2002)5 of the Committee of Ministers to member states on the protection of women against violence AgainstWomen.aspx
  • European Commission. 2016. "Istanbul Convention: combatting violence against women." Accessed November 28, 2020. Available at:
  • Sarita Verma v. New Delhi Municipal Corporation & Ors, (2016 LLR 785 (2)).
  • Sharma, Indira. 2015. "Violence against women: Where are the solutions?"
  • Shital Prasad Sharma v. State of Rajasthan and Ors. (2018 SCC Online Raj 1676).
  • The Protection of Women from Domestic Violence Act, 2003, for details see, Sections 12 and 22
  2. AgainstWomen.aspx
  4. The Protection of Women from Domestic Violence Act, 2003
  5. The Convention on the Elimination of All Forms of Discrimination against Women (CEDAW)
  7. Sharma, Indira. 2015. "Violence against women
  11. Istanbul Convention: combatting violence against women.
  12. The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2015
  22. Declaration on the Elimination of Violence Against Women, Proclaimed by UN General Assembly resolution 48/104 of 20 December 1993

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