By Dr. Smt. T. Padma,
M.A., L.L.M., Ph.D.,
II Addl. District and Sessions Judge,
Violence against women and girls continued to be a Global epidemic that kills tortures and maims physically, psychologically, sexually and economically. It is one of the pervasive of human rights violations denying women and girls equality, Security dignity and self worth and their right to enjoy fundamental freedoms. Violence against women is present in every country, cutting across the boundaries of culture, class, education income ethnicity and age India is not free from scourge either. According to National Crime report Bureau (NCRB) 1, 50,000 Crimes against Women are registered annually out of which nearly 50,000 are related to domestic violence. It is believed that close to 5 million women suffer from violence in their homes. However, only 0.1% is courageous enough to report the atrocities to the Police. Every second that ticks by in India, has a story of torture against women, two cases of rape, two Kidnappings, four incidents of molestation and seven incidents of cruelty from husband and relatives taken place every hour, every day. There is no universally accepted definition of violence against woman.
Manifestations of Domestic Violence
Domestic Violence includes violence Perpetrated by intimate partner and family members manifest through:
Slapping, beating arm twisting, stabbing strangling, choking, Kicking threats with an object or weapon and murder. It includes traditional practices harmful to women such as female genital mutilation.
Which includes behavior that is intended to and prosecute and takes the form of threats of abandonment or abuse confinement to the home surveillance threats to take away custody of the children destruction of objects isolation, verbal aggression and constant humiliation.
Includes acts such as denial of funds, refusal to contribute financially, denial of food and basic needs and controlling access to health care employment.
Such as coerced with through threats, intimidation or physical force, forcing unwanted sexual acts or forcing sex with others are examples of violence against women through out the life cycle.
Sex selective abortion, effects of battering during pregnancy on birth outcomes.
Female infanticide, Physical, Sexual and psychological abuse.
Child marriage, female genital mutilation, physical, Sexual and Psychological abuse incest, child prostitution and pornography.
Adolescence and Adulthood
Dating and courtship violence ( Acid Throwing and date rape ) economically coerced Sex ( Schoolgirls Sex with sugar daddies “ in return of school fees ) incest, Sexual abuse in the work place rape, Sexual harassment, forced Prostitution and pornography, trafficking in women, partners violence, marital rape, dowry abuse and murders, partner homicide, psychological abuse and murders abuse of women with disabilities forced pregnancy.
Forced suicide or homicide of widows for economic reasons, Sexual, Physical and psychological abuse.
Magnitude of the Problem Physical Abuse
Is also clouded by the fact that domestic violence is a crime that is under recorded and under reported. A growing body of research studies confirms the prevalence of physical violence in all parts of the globe, including the estimates of 20 to 50 percent of women from country to country who have experienced domestic violence. Physical violence always accompanied by psychological abuse and in many cases by sexual assault Sexual abuse and rape in intimate relationships sexual abuse and rape by an intimate relationship is not considered crime in most countries and woman in my societies do not considered forced sex as rape if they are married to, or cohabiting with, the perpetrator. The assumption is that once a woman enters into a contract of marriage, the husband has the right to unlimited sexual access to his wife.
Psychological and Emotional Abuse
Psychological violence is harder to capture in quantitative studies Victim-survivors report that ongoing psychological violence- emotioned torture and living under terror – is often mere unbearable than the physical brutality with mental stress leading to a high incidence of suicide and suicide attempts.
Murder of women by their batters is another phenomenon that should be regarded as separate category. American women are already twice as likely to be killed by their partners then women in west European countries. (The incidence of femicide with in domestic sphere in USA, Thailand, South Africa etc,)
Sexual Abuse of Children and Adolescents
Considering the taboo in most of the countries that surrounds incest or sexual abuse of children and adolescents within the family. However the studies shown that from 40 to 60 percent of known sexual assaults with in the family are committed against girls’ aged 15 years and younger regardless culture or region
Forced prostitution or other kinds of commercial exploitation by male partners or parents in another form of violence against women and children reported worldwide. In certain hill districts of Nepal prostitution has become an almost traditional source of income. In Southern India where young women and girls (Devadasis) are donated, to serve a temple and very often end up being prostituted. The high incidence of HIV / AIDS in the country has been attributed to this trafficking in young girls.
Sex-Selective abortions female infanticide differential access of food and medical care
In Societies where a higher value is placed on son’s discrimination towards female child can take extreme forms such as sex selective abortions and female infanticide. In India a recent survey reported 10,000 cases of female infanticide annually. An estimated 60 million women were simply missing from the population statistics.
Traditional and cultural practices affecting the health and lives of women
Around the world, women and girls suffer the harmful and life threatening effects of traditional and cultural practices that continue under the guise of cultural and social conformism and religious belief. Ex: Female genital mutilation (FGM). It is estimated that nearly 130 million women worldwide have undergone FGM and that approximately two million undergo the procedure every year. (Both eastern and western countries)
Dowry related violence
Even though India has legally abolished the institution of dowry, Dowry related violence is more. More than 5000 women are killed by their husbands and in-laws, who burn them in accidental kitchen fires if their ongoing demands for dowry before and after the marriage are not met. An average of five women a day is burned and many more cases go unreported.
Sulphuric acid has emerged as a cheap and easily accessible weapon to disfigure and sometimes kill women and girls for reasons as varied as family feuds, inability to meet dowry demand and rejection of marriage proposals. In Bangladesh that there are over 200 acid attacks every year.
Killing is the name of honour
In several countries in the world women are killed in order to uphold the honour of the family. Any reason viz., adultery, premarital relationships, rape, falling love with a person of whom the family disapproves. In 1997 more than 300 women were the victims of so called honour crimes in just one province Pakistan. The penal code in Jordan that govern crimes of honour also sanction killing by making the penalty disproportionately lenient, particularly if the crime is committed by boys under 18 years age.
Early marriages with or without the consent of the girl, constitute a form of violence as it undermines the health and autonomy of millions of young girls. More than 50 countries allow marriage at 16 years or below with parent consent. Early marriage leads to teenage pregnancy and can expose the girl to HIV / AIDS and other sexually transmitted diseases. It has adverse health effects for her children such as lower birth weight. Further more, it has adverse effect on the education and employment opportunities of girls.
Causes of domestic violence
Several complex and inter connected institutionalized social and cultural factors have kept women particularly vulnerable to the violence directed at them.
Factors that Perpetuate Domestic Violence
Gender specific socialization, belief in inherent superiority of males, cultural definitions of appropriate sex roles. Notion of the family as a private sphere Customs of marriage, acceptability of violence as a means of resolve conflict.
Women’s economic dependence on man, limited access to cash and credit, limited access to employment, education and training for women.
Lesser legal status of women, either by written law or by practice, laws relating to divorce, child hood, low-level and legal literacy among woman, Insensitive treatment of woman and girls by police and judiciary.
Under representation of woman in power; politics, media, Domestic violence not taken seriously Notion of family being private and beyond the control and state limited participation of woman in organized political system.
Perhaps the most crucial consequence of violence against woman and girls is the denial of fundamental human right to woman and girls.
Lack of legal protection particularly with in the sanctity of the home, is a strong factor in perpetuating violence against woman. Human development goals undermined Health consequences (Nonfatal outcomes, like injury miscarriage, headache, Asthma, mental headache mental health outcomes like Depression, fear, anxiety obsessive, eating problems. Fadeout comes like suicide, homicide, maternal morality: HIV / AIDS (Nearly 14 million women today infected with HIV and the rate of female infliction is raising.
A new approach is required that acknowledges the link between violence against woman and spread of HIV /AIDS and translates this into policies and programmers for HIV prevention and care.
Combating domestic violence
The doctrine is related to the concept of equality and equal protection. The domestic violence bill which had been pending before the Loksabha for many years has been finally been passed. The Protection of Women from Domestic Violence Act 2005 has come to effect from 26th October 2006 and it is primarily meant to provide protection to the wife or female live-in partner from violence at the hands of the husband or male live-in partner or his relatives. The law also extends its protection to women who are sisters, widows or mothers. Domestic violence under the act includes actual abuse or the threat of abuse whether physical, sexual, verbal, emotional or economic. Harassment by way of unlawful dowry demands to the woman or her relatives would also cover under the definition.
The new act contains five chapters and 37 sections. Its main features are: (1) that the term domestic violence has been made wide enough to encompass every possibility as it covers all forms of physical, sexual, verbal, emotional and economic abuse that can harm, cause injury to endanger the health, safety, life, limb or well-being either mental or physical of the aggrieved person. (Ch. II, S.3). This is a genuinely wide definition and covers every eventuality, (2) the definition of an aggrieved person is equally wide and covers not just the wife but a women who is the sexual partner of the male irrespective of whether she is his legal wife or not. The daughter, mother sister, child (male or female) widowed relative, in fact, any woman residing in the household who is related in some way to the respondent, is also covered by the Act. (Ch.IS.2(a)). The respondent under the definition given in the Act is any male, adult person who is, or has been, in a domestic relationship with the aggrieved person but so that his mother, sister and other relatives do not go Scot free, the case can also be filed against relatives of the husband or male partner.
It appears from the Act that the information regarding an act or acts of domestic violence does not necessarily have to be lodged by the aggrieved party but by “any person who has reason to believe that such an act has been or is being committed. Which means that either the neighbours, or the social workers, or the relatives etc can all take initiative on behalf of the victim (Ch. III, S4)
One great weakness of the previous NDA bill has been effectively removed in the present Act and that is that the magistrate has the powers to permit the aggrieved woman to stay in her place of adore and cannot be evicted by the husband in retaliation. This fear of being driven out of the house effectively silenced many women and made them silent sufferers. The court by this new Act, can now order that she not only reside in the same house but that a part of the house can even be allotted to her for her personal use (Ch.IV,S.17) even if she has no legal claim or share in the property. S.18 of the same chapter allows the magistrate to protect the woman from acts of violence or even acts that are likely to take place in the future and can prohibit the respondent from dispossessing the aggrieved person or in any other manner disturbing her possessions, entering the aggrieved person’s place of work or, if the aggrieved person is a child, the school. The respondent can also be restrained from attempting to communicate in any form, whatsoever, with the aggrieved person, including personal, oral written, electronic or telephonic contact (S18d). The respondent can even be prohibited from entering the room/area/house that is allotted to her by the court. The act allows magistrates to impose monetary relief and monthly payments of maintenance. The respondent can also be made to meet the expenses incurred and losses suffered by the aggrieved person and any child of the aggrieved person as a result of domestic violence and can also cover loss of earnings, medical expenses, loss or damage to property and can also cover the maintenance of the victim and her children (Ch.IVm S.20). S.22 allows the magistrate to make the respondent pay compensation and damages for injuries including mental torture and emotional distress caused by acts of domestic violence.
Ch. V. S. 31 gives a penalty up to one year imprisonment and/or a fine up to ` 20,000/- for and offence. The offence is also considered cognizable and non-boilable (Ch.V. S.32(i) while S. 32 (2) goes even further and says that under the sole testimony of the aggrieved person, the court may conclude that an offence has been committed by the accused. The Act also ensures speedy justice as the court has to start proceedings and have the first hearing within 3 days of the complaint being filed in court and every case must be disposed of within a period of sixty days of the first hearing (Ch.IV, S.12 (a) (4) and (5). It makes provisions for the state to provide for Protection Officers and the whole machinery by which to implement the Act.
After going through the Act with a fine-tooth comb, the only major change I would make to the Act is in S.16 of chapter IV which allows the magistrate to hold proceedings in camera if either party to the proceedings so desires. Now our experience in AIPWA has proven that sometimes in camera proceedings can protect the aggrieved woman from a lot of humiliation and shame especially in cases where explicit acts of sexual abuse and violence are being discussed in an open court and it allows for her dignity and privacy to be maintained. But we have also seen trials where the in camera proceedings only intimidated the aggrieved in favor of the respondent. This is especially so when the aggrieved is the only woman in court facing a completely male phalanx of hostile, sneering magistrates, lawyers, officials, police, male respondent etc. The solution is to change this section to only allow for in camera proceedings not when either party so desires but only if the aggrieved pray so desires. Also the aggrieved party should be allowed to be accompanied by any relative/woman social worker etc. of her choice for moral support.
The delay in the implementation of the act will be sought by initiating discussions with bureaucrats, law enforcement agencies, elected representatives at the state/local self governess level. Civil society organizations community members and Journalists capacity building of service providers shall also be carried out simultaneously by organizing training of trainers’ workshop in these selected regions of India. The delay in the implementation of PWDVA (Protection of woman from domestic violence Act) is in large reflective of lack of awareness among stockholders (Protection officer, service providers, police and community members ) It is therefore imperative to discuss and simplify certain clauses of the act interims of language to aid prolonged understanding of all concerned says Dr. Ranjana kumari, WPC (Women Power Connect) and Director CSR (Centre for social research) Governments seem more willing to pass Laws than invest in infrastructure to make sure it is implemented. Except in states like Andhra Pradesh the police are completely indifferent to the act because it is a civil law. Another source of frustration for women accessing this act what is common to all remedies inordinate delays that almost amount to denial of Justice. This is reality even in states like Andhra Pradesh which is seen as a model as far a putting in place infrastructure to implement the act is concerned and has been commended by National commission for women.
According to the First monitoring and Evolution report in 2007 on the PWDVA by the lawyers collective women’s right initiative. A total 7913 cases has been filed under the PWDVA 2005. The highest number of cases reported in Delhi 3901 in Rajasthan 3440 where neither protection officers has been appointed nor any infrastructure is in place. No cases have been file in 4 States (Arunachal Pradesh, Meghalaya, Mizoram and Nagaland) In Andhra Pradesh 1625 also recorded too much domestic violence (Date till Feb 2009). One of the reasons for the wide variation could be attributed to the level of awareness on the law in each state. There appears to be divergent in which the act being implemented across the States. This is partly to the kind of infrastructure put in place as well as the manner in which the act being is interpreted. The second annual evolution report of the act by women’s right instate of lawyers collective, which has been associated with legislation since its inception, also points to huge disparities in implementation between states. Through the activists and lawyers across the country are happy that they have got some good orders under the act proof, infrastructure and funding, lack of coordination between the departments and Judiciary delay are proving big deterrents. If you are victim of violence at home, the law is on your side. I would like to discuss some cases. One Bangalore based software engineer suffered at the hands of her husband who had filed for divorce before the family court in 2007, filed a case under PWDVA in April 2008 in the magistrate court. The First relief indeed came quickly. She got a residence and protection order. Which provide her access to the flat earlier taken by her Husband. However he got violent the minute the Government appointed protection officer turned his back, forcing her to send into a separate flat in the interest of her safety. Recently he appealed to the Karnataka High court to quash the proceedings against him under PWDVA. The court refused to do so. It will be a long haul in court before she can put her traumatic past behind her and start fresh.
In Mumbai one lady filed a case under the act when the police refused to do anything despite her filling cases of harassment, sexual violence and abuse against alcoholic husband who is also HIV positive. All she wanted was redemption from sexual violence and she was not even two keen on getting maintenance she got an order from the magistrate restraining her husband from staking hok or visiting her. Her lawyer got an arrest warrant issued, but the police claim that they can’t find him. She is happy that she does not have to live her husband. But she won’t feel safe until he is behind bars.
The two cases reflect both the hopes and frustrations associated with PWDVA which when it came into existence during Oct 2006 became first legislation to have defined domestic violence with in Indian legal discourse one more case one woman in Patiala House in Delhi feels bitter after a two years wait for Justice. The law seems hopeful only to those who are rich enough to afford a high profile lawyer who gets the case disposed off quickly. An MNC executive filed a domestic violence case against her lawyer husband almost a year ago. No relief in Chandigarh Vinish Singla, an advocate who has filed the first complaint stated that it as a loosely drafted act but with good intentions. Any woman who is a victim of domestic violence has to face lengthy court cases, and hence exorbitant lawyers’ fee. It’s all about money and power in this country. In Maharastra first case under domestic violence was registered by the Pune Rural. Veena Gouda a lawyer with women’s rights group Majli, who often deal with victims of the act will be in emergency situations. The onus will be on the courts then to ensure they pass immediate orders. In 2004, the rape and murder of 32 year old Thangjam Manorama by federal soldiers in Manipur shook the entire nation. The anger was so high 40 women protested naked with slogan like “Indian army rape us” and Indian Army take our flesh against the violence allegedly used by army to subjudicate people. But what happened after that of nothing. People seem to have for gotten the case altogether. In 2002 a young mentally challenged girl was raped in Mumbai local train. Sounds like a routine story. What happened when five people were present in the compartment but did nothing to stop such beastly act. Ideally Justice should be delivered to the victim within two months but in many places including the role model state Andhra Pradesh cases dragon for more than six months said Ramesh Gupta, a criminal lawyer. Andhra Pradesh state was the first in India to implement this law. Andhra Pradesh and Tamilnadu put aside dedicated annual allotment of ` 1 (One) Crore for implementation of the act.
Misuse of the Act like all such in India, can’t be ruled out. In fact, with a system as corrupt as ours, money clout and muscle power will always call the shots. And as long as the woman stays as puppet or pawn in the hands of her male relatives, she will always be manipulated and used. However with this act, there is at least legal recognition of the scale of domestic violence that actually exists. This Act also should also put an end to many of misuses of the Anti dowry act. The main beneficiaries of the act will, of course, be women of propertied upper class.
But there is no doubt that with this Act a whole Pandora box of litigation will be thrown open and all the degradation brutality and cruelty to women that has been carefully swept under the carpet for centuries in our old rich heritage and civilization is all going to be exposed and about time. For those feminist groups that see the family or the male as the main cause for women’s oppression, this act open up all sorts of possibilities in their struggles.
Save the husband foundation, is a non Government organization (team of about 25 lawyers) strongly against the abuse of law by woman. Under A-32 of the constitution of India filed a petition challenging the validity of this act 2005. It is pending before the apex court. November 25th is recognized as International day for the elimination of violence against woman. The idea certainly sounds grand and noble but does it contribute towards a real improvement in the condition of women? Remember the story of Soumya Banvri devi and those Haryana girls who were battered to death in the name of honour Sowmya, a TV Journalist who was murdered while returning from office. After death the Delhi chief Minister Sheila Dekshit was shocking to say the least women should refrain from adventurism. This statement is proof, that despite constituting around 50% population, woman in India are considered second grade citizens, Rape, murder, domestic violence, dowry deaths acid throwing incidents no longer seem to trouble this society when Bhanvridevi tried to stop child marriage. She has not received Justice till date. Her case is still languishing in court hoping against hope that one day she might get Justice. Nothing has been changed over the years, the perception, the exploitation everything remain same. Even during world wars horrendous stories emerged of women being atrocities committed by Japanese soldiers in 1971, Indo Pak war witnessed mass murders and rape of women.
We need to make world a safer place for our women and the first step towards this goal is effective policing. Police should be able to instill confidence in the victim not scare her/him away from the police station. Fast track courts should be established to settle the case involving women in a given frame. The rehabilitation of victim should also be a priority of the state Sensitization of masses should be taken at war scale and this should start at ground level i.e. from schools, children must be taught to respect each other irrespective of one’s gender. Any molestation, eve teasing or harassment must not be tolerated and victim must be encouraged to speak up.
Therefore, said steps are basic and only this can bring in change. What really requires change in attitude of the society towards fair sex. Sheela Ramanathan of Human Rights law Network in Bangalore says that a large number of cases get stuck at the level of appeals in higher courts. “Unless there is a time frame for appeals in High courts to be settled, access to justice will remain elusive, she says. What adds to the delay is the mindset in magistrate courts that focus primarily on criminal cases. Many magistrates are not aware of the spirit of this law whose focus is giving immediate relief to women and insist on the same long-winded procedure of evidence, says Basavaraj M.Kulbakatti, a lawyer who has filed many cases under the Act in Bagalkot district in north Karnataka. This is a legislation that has come from the women’s movement and has the best intentions. But it is also getting caught in the same rigmarole, says Donna.
(Source: Innocent digest; UNICEF, W.H.O. Zee news, The Hindu, India e news and Protection of woman from domestic violence act.2005).
 The Author is presently holding the post of II Addl. District and Sessions Judge, Nizamabad. The views expressed in this article are of her personal and nothing to do with the position she is holding.