"Men, their rights, and nothing more; women, their rights, and nothing less", said Ms. Susan B. Anthony, Social reformer and Women’s rights activist back in 1876. However, it’s the need of the hour, even today in 2021. Violence against women not only violates but also nullifies the enjoyment of their human rights and fundamental freedoms.
The patriarchal system has been deeply rooted in Indian society since time immemorial and has laid the foundation stone for abuse of women. Starting from the Vedic age to the twenty first century, women have never been able to enjoy and experience equal rights and freedom as compared to their male counterparts. The concept of a woman being an ‘Ardhangini’ (half of the body) seems to be a mere illusion and an idea restricted to literature, i.e. it has never been implemented in real life. In the past, women were subjected to the Purdah system (concealing the face behind a veil), and Sati system (self-immolation of the widow on a husband’s funeral pyre). This is a clear reflection of the history of women’s lower status. In 2018, India was ranked the world’s most dangerous country for women. Gender based violence is still a grave unresolved issue, such violence includes domestic violence, non-consensual sex and other forms of sexual violence, trafficking in women, female genital mutilation and dowry-related deaths.
One of the issues which needs prime importance today is Domestic Violence. Any act of physical, sexual, or psychological abuse or the threat of such abuse imposed against a woman by a person she is intimately connected to through marriage, family relation, or acquaintanceship can be classified as domestic violence.
LAWS ON DOMESTIC VIOLENCE IN INDIA
Domestic Violence wasn’t recognized as a criminal offence until 1983 in India. The enactment of the Protection of Women from Domestic Violence Act came into effect in 2006 and until then there was no specific law to discuss the severity and complexity of abuse taking place in confined walls,one considers their safe space and calls ‘Home’.
Protection of Women against Domestic Violence Act 2005 prohibits an extensive range of abuse against women that is physical, emotional, sexual and even economical and all these are widely defined under the Act. This covers all women who may be mother, sister, wife, widow or partners living in a shared household. The Act not only covers women who are married but also those who are live-in relationship and even children & elderly. However, no female relative of the husband or the male partner can file a complaint against the wife or the female partner. Complaint against female relatives of male partner can be filed.
There are wide variety of options available to a woman she has a right to get an order of protection against her husband and his family to not be thrown out of her matrimonial home even if she reports her abusers, to claim maintenance, to claim compensation and also have custody of her children. However, she doesn’t have to necessarily file for a divorce and has a right to receive maintenance from her husband, this is also protected by Section 125 of the Indian Penal Code. A petition for maintenance is maintainable even in the absence of one for divorce.
In Section 498A of the Indian Penal Code harassment for dowry by the husband or his family is considered a crime. This harassment includes both physical or mental. Marital rape is however not recognized as a crime in India still forced sex with one’s wife can be considered cruelty under this section. Cruelty is also a ground for divorce. Section 498 A has a wide ambit and scope it also covers any willful conduct against a woman which leads her to commit suicide or grave injury or risk to life, limb or overall health, including one’s mental health as well.
Even though the practice of dowry itself is outlawed under the Dowry Prohibition Act, 1961 still if dowry has been given to and taken by anyone other than the woman, she is entitled to that money/property as the case may be under this Act.
THE IMPLEMENTATION OF LAW- REALITY
According to the Indian Crime National Crime’s Bureau (“NCRB”), violence had increased with the rates increasing from 41.7 to 53.9% between 2012-2015; domestic violence had also increased by 8%. The Crime in India Report 2018, published by the National Crimes Research Bureau (NCRB) states that every 1.7 minutes a crime was recorded against women in India, every 16 minutes a rape was committed and every 4.4 minutes a girl is subjected to domestic violence.
Even after 15 years of enforcement of the DV Act, Domestic Violence has still been the top crime Indian women have faced. Even after having a personalized, targeted legislation why are the numbers continuously on a rise? Are they mere strong laws but weak implementation?
In 2020 while people were fighting the pandemic, some women were fighting a war inside their homes too or popularly known as a shadow pandemic (UN Women India,2020). When the government announced complete lockdown there were several areas where the government failed to craft a strategy to address the possible consequences. One such major fallout was how to deal with incidents of domestic violence in the country. In March and up to 5th April, 2020, the National Commission of Women (NCW) received 310 grievances of DV. During this period, a total of 885 complaints were received by NCW for other forms of violence against women that were bigamy/polygamy; denial of maternity benefits to women; dowry deaths; harassment of married women/dowry harassment; outraging the modesty of women/molestation; rape/attempt to rape; right to live with dignity; sexual assault and sexual harassment.
The Domestic violence complains have reached a twenty-one year high. Over 2,300 domestic violence complaints were filed with the National Commission for Women between January and May in 2021, the highest for any year since 2000. The root cause behind the crime is hard to interpret, however certain reasons behind the violence can be traced to the stereotyping of gender roles, the distribution of power. One of the main factors which lead to increase in DV cases in India is due to a reciprocal relationship between economic stress and domestic violence. The pandemic has disturbed the Indian economy to the core. 10 million lost jobs in Covids 2nd waveand 97% households' income was declined. Such economic distress has increased anxiety and feelings of helplessness among people. The higher level of abuse inflicted on women is a projection of their anger and stress. Historical factors traced back to the inherent evil of patriarchy and superiority complex that has prevailed for centuries among men along with social stigmas is also a reason for existence of domestic violence in the first place.
One of the biggest concerns of the DV act is the wide underreporting of cases, The National Family Health Survey -5 data stated that 70% of women in the major States who faced physical violence did not inform anyone about it. The reasons range from prevailing social stigmas to embarrassment, financial dependency, fear of retaliation, victim-blaming to following a convoluted bureaucratic procedure.
However, the pandemic even further blurred out the way of reporting the crime. As when one is locked down with the abuser some women didn’t get the access to a mobile phone or the space and time, with limited access to financial resources and social networks. Thus, the intensity of the obstacles she would normally face had been aggravated by the pandemic and the lockdown. Further, women have felt additionally unsafe in approaching the police because they think that if their husbands were arrested, they could’ve been harassed by in-laws, or once their husbands return, they would be tortured even more. Thus, educating them about their rights and providing them emotional support might help in putting an end to this under-reporting problem. However, education doesn’t translate directly into lower cases of this crime.
Another fallout which needs attention is that the protection officers, service providers under the DV Act have to be adequately trained on how to handle domestic violence cases. While some of the aggrieved women are directed to shelter homes, they are mostly overcrowded and in poor conditions with no means for women to be self-sufficient. So, the victims have no option but to relocate or be homeless. There has to be a standardized protocol in place. More than 50% of Protection officers still consider domestic violence as more of a family affair and urge the complainant to sort it amongst the family.
Violence against women was described as a global public health problem of epidemic proportions, requiring urgent action back in 2013 by World Health Organization. Domestic Violence is not only limited to India but is prevalent around the world. In 2018 analysis of prevalence data from 2000-2018 across 161 countries and areas was conducted by WHO on behalf of the UN Interagency working group on violence against women and it was found that worldwide, nearly 1 in 3, or 30%, of women have been subjected to physical and/or sexual violence by an intimate partner or non-partner sexual violence or both. The prevalence estimates of lifetime intimate partner violence range from 20% in the Western Pacific, 22% in high-income countries and Europe and 25% in the WHO Regions of the Americas to 33% in the WHO African region, 31% in the WHO Eastern Mediterranean region, and 33% in the WHO South-East Asia region.
This Violence tends to increase especially during any sort of emergency including pandemics. Thus, during the lockdown, there was an upward surge in the number of cases being reported. China, the United Kingdom, the United States, and other countries suggest an increase in domestic violence cases since the COVID-19 outbreak began. Domestic Violence cases reported to a police station in Jingzhou, a city in Hubei Province, tripled in February 2020. Even in France, cases of domestic violence were increased by 30 percent in the lockdown. Argentina, also witnessed increase in emergency calls for domestic violence cases by 25 per cent since in the early months of lockdown itself. In Australia, a Women’s Safety New South Wales survey revealed that 40 percent of frontline workers had reported increased requests for help by survivors, and 70 percent had reported that the cases received have increased in their level of complexity during the COVID-19 outbreak.
Each Country adopted different measures to curb domestic violence. In Canada, domestic violence shelters were to remain open during the lockdown and the Canadian aid package was announced to include $50 million to support shelters for those facing sexual violence and other forms of gender-based violence. In Quebec and Ontario, domestic violence shelters were deemed as essential services and must remain open during the lockdown. Prosecutors ruled that in the situation of domestic violence, the abuser shall leave the family home and not the survivor in Italy. In France, when shelters exceeded the capacity alternative accommodation was being provided for domestic violence survivors by hotels, and other countries including in the Caribbean were also exploring alternative accommodations. In China the hashtag #AntiDomesticViolenceDuringEpidemic took off as part of advocacy with links to online resources - helping to break the silence and expose violence as a risk during lockdown. Australia, France and the UK allocated additional dedicated funding to support women experiencing violence and to organizations providing services. Mask-19 initiative was started in Spain, where women could alert pharmacies about a domestic violence situation with a code message “Mask-19” that brought the police in to support. In Kazakhstan lockdown caused cancellation of planned court sessions and cases of violence were being adjourned. Even though every country tried to curb the rising cases of domestic violence, no country succeeded.
With constant rise & decline in covid cases, one can never be sure when the next lockdown will be imposed. Thus, not only covid but even combating domestic violence has to be given prime importance.
Domestic Violence needs to be classified as a silent pandemic by the national governments all over the world. There has been no mention of the allocation of extra funds to combat rising DV cases either in India or across other nations in the world, when economic incentive packages were announced to tide over the crisis created by the pandemic. In fact, the Sustainable Development Goal (SDG) 5 that seeks to “eliminate all forms of discrimination and violence against women in the public and private spheres, and to undertake reforms to give them the same rights to economic resources and access to property by 2030,” is being immensely compromised.
There is also a need for an Emergency Response Plan, Availability of 24/7 instant counselling, rehabilitation and access to mental health services in the shelter homes should be classified as essential services. Akin to the national campaigns on COVID-19, the government can utilize several mass communication platforms to enhance awareness about the resources accessible to the victims of DV. With these facilities available, Women can perhaps finally live their life with dignity that has been enshrined in Article 21 of the Indian Constitution ages back.
(Malika Bhasin is a Final Year Law Student at Amity Law School, Delhi, Guru Gobind Singh, Indraprastha University).