By Dr.
Smt. T. Padma,
M.A.,
L.L.M., Ph.D.,
II
Addl. District and Sessions Judge,
Nizamabad.
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:
Physical
Abuse
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.
Psychological
Abuse
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.
Economic
Abuse
Includes acts such as denial of
funds, refusal to contribute financially, denial of food and basic needs and
controlling access to health care employment.
Sexual
Abuse
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.
Pre-Birth
Sex selective abortion, effects of
battering during pregnancy on birth outcomes.
Infancy
Female infanticide, Physical,
Sexual and psychological abuse.
Girlhood
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.
Elderly
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.
Femicide
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
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.
Acid
attacks
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
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
Cultural
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.
Economic
Women’s economic dependence on man,
limited access to cash and credit, limited access to employment, education and
training for women.
Legal
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.
Political
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.
Consequences
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.
Conclusion
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.
Even as women are struggling
to access law and use it as a tool of empowerment, there has been a hue and cry
over what is described as misuse of the law.
This is nothing new to women-related laws, given the history of protests
against dowry-related laws. All laws are, of course, open to abuse. But singling out laws that seek to empower
women reflects entrenched prejudices.
Those who say these things should come to the magistrate court and take
a look at the hapless faces of women waiting there endlessly, with only a faint
glimmer of hope.
[Puiblished in Andhra Law Times / Fortnightly November 2009, Part –2.]
(Source: Innocent
digest; UNICEF, W.H.O. Zee news, The Hindu, India e news and Protection of woman from domestic
violence act.2005).
[1]
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.
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