Abstract:

This article examines domestic violence from the Indian perspective. It deals with the need to develop a comprehensive strategy to combat it (and thereby increase gender equity) as well as with possible ways in which to do so.

India, like most other countries, faces enormous challenges as it moves into the 21st century. In the year 2000, the Planning Commission of the Government of India set up a committee headed by Dr. S. P. Gupta to draft a vision for the country. However, the India Vision 2020 Report, as it is called, did not turn out to be a comprehensive document. Dr. A. P. J. Abdul Kalam, however, pointed out that ‘a vision is not a project report or a plan target. It is an articulation of the desired end results in broader terms.’ The major thrust of this document has consequently been in the areas of employment and education although it also deals with other subjects such as health, governance, globalization, environment and energy.

The committee has, however, made a number of insightful observations. Recognizing that higher economic growth and better education in themselves will not eliminate and may even aggravate inequalities between different groups of people and between men and women (unless specific remedial action to avoid such a state of affairs is taken), it has said, “The Vision 2020 must have special focus on bridging the existing gaps in the various levels of development and endeavor its best to fulfill the Constitutional commitment of raising the status of the vulnerable groups vis-à-vis the rest of the society.”

To quote the report, “Increasing gender equity is an important challenge of the coming years. The UNDP’s gender development index ranks India 108 among 174 countries in terms of gender equity. It is no coincidence therefore that countries ranking highest on this index are among the most prosperous in the world. Gender equity and social development are inseparably interlinked. Reducing the disparity in nutritional, literacy and educational levels between the sexes is essential for realization of the country’s full potentials.”

However, in addition to the criteria mentioned above (which are for the most part open to public discussion) another important criterion required to be able to create gender equity would be to do away with violence against women, in particular with domestic violence which is widely prevalent in India but which, unlike most other forms of violence against women, is scarcely acknowledged as being widespread and is hardly ever treated as a crime.

Instead, Indian society makes domestic violence invisible and leaves it cocooned by feelings of guilt and embarrassment; according to some findings, two of every five women in an abusive relationship in India do not speak up about the abuse they undergo because of shame and family honor. And this is despite the fact that surveys of women across urban slum, non-slum and rural areas have shown that up to fifty per cent of them have suffered from at least one form of domestic violence in their marital lives.

Unfortunately, this attitude which makes domestic violence an invisible factor in India’s social fabric vitiates not only societal responses to the issue but also institutional responses even though studies have repeatedly shown that domestic violence is one of the few phenomena which cuts across all the cultural, socio-economic, educational, ethnic and religious barriers which usually divide society, and, absurdly enough, not only seems to increase with a rise in a woman’s education but also prevails among the so-called elite of society.

Laws to deal with domestic violence do exist and they include Section 113 A of the Indian Evidence Act, Sections 498 A and 304 B of the Indian Penal Code, and the Dowry Prohibition Act of 1961 and the Domestic Violence Act which came into force in October 2006. The effect of such laws is, however, currently limited. For example, a report by Amnesty International observes, “Analysis of court decisions in one particular district of Maharashtra, Yavatmal, for example, shows that only 2.2 percent of the cases brought under 498 A during the period of 1990-96 resulted in conviction.”

Section 498 A is, in a way, in favor of women. It was created by an amendment to the Indian Penal Code in 1983. Complaints under it are cognizable, non-bailable and non-compoundable. Close on its heels came two amendments to the Dowry Prohibition Act of 1961 — in 1984 and 1986 — which made dowry giving and taking cognizable offences. Those accused under both these laws are not assumed to be innocent until proven guilty; contrary to most laws, the accused are, in theory, required to prove that they have not committed a crime although in reality they often easily get bail.

Tilting the balance in favor of women has often been useful since previously women could not meet the burden of proof quite simply because marital violence usually occurred behind closed doors and that being the case, in the absence of independent witnesses, there was no easy way for women to prove their cases beyond reasonable doubt as is required by criminal law.

Unfortunately, there has been no mechanism brought into play to ensure that women don’t lie. The law against perjury is virtually non-functional in India and there are no deterrents to ensure that only genuine complaints are made under this Section. It is therefore desirable to amend Section 498 A, IPC so that bonafide and malafide complaints made under it can be separated.

A more pressing problem, however, is that although these laws exist to combat domestic violence, it is extremely difficult to ensure that they are implemented. Judicial records show that the conviction rates in cases of domestic violence are very low and these records don’t take into consideration those cases which never even make it to court. Nandita Bhatla and Anuradha Rajan have pointed out, “Lengthy court proceedings, inordinate delays in investigation and irrational procedures are serious deterrents for women to approach courts, let alone see the entire case through.”

Steps need to be taken in order to clear the confusion in many people’s minds about the purpose of some laws. For example, a number of people seem to associate Section 498 A, IPC exclusively with Indian anti-dowry laws and allegations of the Section being misused are rampant.

In fact, a Tata Institute of Social Sciences study in 1999 indicated that few women’s organizations recommend recourse to section 498 A, IPC as a first resort and that the number of cases filed under the section are minuscule in comparison to the prevalence of domestic violence. However, such studies have done little to stop a large spectrum of people ranging right from accused husbands and their families to some members of the judiciary from voicing their complaints.

To expect domestic violence to disappear by the 2020 is unrealistic to say the least. Indian society is patriarchal; public attitudes are firmly in favor of men and wives are usually held responsible for marital problems as the following statement in a report prepared by the legal adviser to the Delhi Commissioner of Police in November 2000 shows: “…the reasons for disharmony between the wife and the husband arise only when either the wife is reluctant/refuses to adjust herself in the family circumstances or if the husband feels reluctant to accommodate his wife either on account of unnecessary interference by the parents of the wife or non-cooperative attitude of the wife.”

Although by the year 2020, India should have taken steps to ensure that the law is easier to implement, the country, through its policy brokers in particular, should also examine the broader picture. Attitudes with regard to domestic violence can be modified if not changed completely. And community-based initiatives to deal with cases of domestic violence which have begun to develop in some places can, if used wisely, go a long way in helping to do so. The law in such an arena would not become irrelevant but could be used as a framework within which to negotiate with the perpetrators of domestic violence so as to be able to try to settle such cases out of formal courts since the aim is not just to punish the culprit but to get justice for the victim.

The two aims are not always the same as the former may comprise simply sentencing the perpetrator to a prison term whereas the latter could include enabling a woman to reestablish her right to live in a secure environment in her marital home or ensuring that she receives the support she requires to leave it with or without her children, as the case may be.

However, the trouble with traditional alternatives to litigation is that they are entrenched in patriarchal attitudes and sometimes violate human rights. On a slightly different note, for example, speaking of adultery, Lakshman Mane described punishments inflicted on women in the Pardhi Tribe in his book ‘Band Darwaza’. If women committed adultery with their tongues / eyes, their tongues / eyes were branded with incense sticks. If it was with their ears, hot oil was poured into them, and if they actually slept with a man they were not married to, their genitals were roasted ‘like an eggplant’.

Studies have shown that nearly one-third of women in India who experience domestic violence have thought about running away but fear leaving their young children and having nowhere to go. The Domestic Violence Act which has just come into force should help to take care of this but so far, one really doesn’t know how it will function.

Community intervention is such a scenario could be made to be useful. In some areas of West Bengal, for example, the ‘Shalishi’ is used to deal with cases domestic violence (and other issues). ‘Shalishi’ –- which is a word of Persian origin — comprises mediation between the parties involved in a dispute by unbiased but powerful ‘Shalishidaars’. It has existed since Pre-Mughal times and with its informal set up, many people find it more acceptable than formal legal avenues. It derives its legitimacy from traditional norms and value systems and it attempts to ensure that the family remains intact while it dispenses justice. In doing so, the ‘Shalishi’ may compromise on meting out a punishment to the culprit as the formal legal system would do but at the end of the day, it seems to help ameliorate the condition of women and that is a kind of empowerment in itself.

Indian society is conservative but by the year 2020, with community initiatives such as the one mentioned above, it may be possible to help find progressive ways to enable women to live in peace and dignity and without having to deal with violence and insecurity within their own homes. There is only so far that formal legal avenues can take one; ultimately, even if a court does sentence a person for committing domestic violence, unless the person and the community think that what has been done is wrong, it will make very little difference.

Official responses too need to be made more sensitive and progressive to the cause of women’s rights. For example, it seems faintly ridiculous to weaken one of the few laws which exist to combat domestic violence. This, however, is precisely what the (all male) Malimath Committee suggested in a way by recommending that complaints made under the ‘heartless provisions’ of section 498 A, IPC be made bailable and compoundable.

The Malimath Committee produced a 600 page report which among other things included 16 research papers but for some reason excluded not only any discussion on the issue of violence against women but also excluded any inputs either from victims of marital cruelty or from those working in the field.

In December 2003, however, the Minister of State for Home Affairs, I. D. Swami said, “There is no information available with the Government to come to the conclusion that many families in India are suffering due to exaggerated allegations of harassment and dowry cases made by women against their husbands and other family members involving them in criminal misappropriation and cruelty.”

In spite of this statement, it is probably true that section 498 A, IPC is as susceptible to abuse as any other law but since the extent to which such abuse takes place has never been firmly established, it may simply be so in isolated cases and not as part of a general trend.

What one also has to realize is that very often woman are encouraged by lawyers and/or the police etc. to add that the violence they faced was related to dowry so that their complaints are taken ‘seriously’. And that is what is ironical because section 498 A, IPC itself is not designed exclusively in reference to dowry-related problems: in itself, it is meant to deal with all forms of domestic violence.

“Content analysis of police recordings reveals that women’s experiences are often filtered through an institutional lens of what is legally acceptable as violent behavior usually undermining the history of violence within marriage,” say Nandita Bhatla and Anuradha Rajan. India needs to develop a comprehensive domestic violence policy so that at the very least, the institutional response to the issue gives battered women whether or not they choose to remain in a relationship with someone who has perpetrated domestic violence, access to aid in the form of health-care, childcare and shelter if not anything else.

It is a fundamental right of all Indian citizens to enjoy life and liberty, and it is the duty of the State to ensure that they can do so within the framework provided by the Constitution of India and under international obligations such as CEDAW which India has accepted. If India is able to do this, it will have a better chance of achieving its vision of 2020 which as the India Vision 2020 report says, “…must be one in which all levels and sections of the population and all parts of the country march forward together into a more secure and prosperous future.”

References:

1. Report of the Committee on India Vision 2020, Planning Commission, Government of India (December, 2002)

2. Statement referred to in reply to Rajya Sabha starred question no. 230 for 17.12.2003 regarding amendments in sections 406 and 498 A of the IPC

3. Laws against domestic violence: Underused or Abused? by Madhu Kishwar (Manushi, Issue No. 120, September-October 2000)

4. Misuse of 498A – much ado about nothing? by Bikram Jeet Batra (Aawaaz, March 2004)

5. a) In India, Domestic Violence Rises with Education by Swapna Majumdar (WeNews, June 11, 2003)
b) Domestic abuse hits India’s elite by Geeta Pandey (BBC, May, 30 2003)

6. Private Concerns in Public Discourse by Nandita Bhatla and Anuradha Rajan (EPW, April 26, 2003)

7.Minimum Non-negotiables in the Protection from Domestic Violence Bill, 2001 by Lawyers Collective

8. Dowry Laws by Nandita Saikia (Panorama, A TakingITGlobal online publication, Jan 31, 2005)

9. Shalishi in West Bengal by Shramajibee Mahila Samiti (EPW, April 26, 2003)

10. Domestic Violence: A Short Legal Primer by Breakthrough

11. India: Report of the Malimath Committee on Reforms of the Criminal Justice System: Some observations by Amnesty International (September, 19 2003)

12. Reconsidered: Dangerous Bill by Indira Jaising (WFS Ref: INDBB21, November 2002)