Building Lives after Domestic Abuse Civil, not Criminal Provisions will Empower Women
15, Jan 2018 | Sushmita
In 2017, the Supreme Court of India stopped short of formally calling women ‘liars’. The judges, Adarsh Kumar Goel and Uday Umesh Lalit were presiding over the case of Rajesh Sharma vs. State of UP. The aggrieved woman charged that she was married to the accused and that her father gave dowry as per his capacity. Unhappy with the extent of dowry, her in laws started abusing the woman. Demands of more dowry and a car were made, which the woman’s family could not arrange. On November 10, 2013 she was dropped at her matrimonial home by the husband. The woman alleged in her complaint that she was pregnant and that she suffered pain in the process and her pregnancy was terminated.
Not only did the judges in this case judicially acknowledged the supposed “misuse”, but also went a step further. They said “It must also be borne in mind that the object behind the enactment of Section 498-A IPC and the Dowry Prohibition 1 (2005)… is to check and curb the menace of dowry and at the same time, to save the matrimonial homes from destruction. Our experience shows that, apart from the husband, all family members are implicated and dragged to the police stations. Though arrest of those persons is not at all necessary, in a number of cases, such harassment is made simply to satisfy the ego and anger of the complainant.”
Thus making a mockery of all the domestic abuse survivors who approach courts for protection from violence. It is one thing for social media trolls to cry foul every time women speak of domestic violence, and completely another for the highest body of judiciary to imply that eventually, women are emotional liars and register such complaints in a fit of anger, despite anecdotal evidence nearing zero. The judges also do not seem to realise that cruelty can be meted out in many other forms apart from dowry alone and a woman in such an environment is extremely vulnerable because of lack of emotional, moral and financial support and also the obligations to provide a good environment for the children where they can flourish. Highlighting this anomaly feminist lawyer and scholar, Flavia Agnes says, “In the anecdotal narrations that surround the myth of false cases, there is a bedridden mother-in-law, a teenaged sister-in-law and a bright brother-in-law in an engineering college whose future is marred by the false implication. But if all these cases were false, how come the chargesheet is filed in over 90 per cent cases?”
Numbers Speak or Do They?
As per the latest NCRB data, in 2016, a total of 110434 cases were registered at a crime rate[i] of 18.0% under Section 498A (cruelty by husband and relatives) in India. The crime rate was highest in Assam at a rate of 58.7% and a total of 9321 cases registered. The state with the second highest rate of filing of Section 498A was West Bengal at a crime rate of 42.3% and recording a total of 19305 cases. Delhi recorded a crime rate of 40.6% with total number of cases being 3879. This was followed by states like Rajasthan and Telangana recording crime rates of 39.4% and 39.2% respectively.
In contrast, a mere 437 cases were registered under the Domestic Violence Act (DVA), 2005 in all of India at a rate of 0.1 %. 171 cases were registered in Bihar at a crime rate of 0.3% and 111 cases were registered in Kerala with a Crime rate of 0.6. 90 cases were reported in MP at a rate of 0.2 % followed by 23 in UP, 2 in Assam, 3 in Chhattisgarh, 2 in Maharashtra, 1 in Uttarakhand, 5 in West Bengal. 1 case was registered in Delhi.
This implied that the cases that were registered under Section 498A, were in all probability not linked to the Domestic Violence Act (DVA) 2005. This also means that majority of women are not able to seek the civil provisions of the DVA, which may include free legal advice, compensation, protection orders, request for shelter homes or any other supportive mechanisms. Day in and day out, mainstream media reports are trying to build a case of misuse of the Section 498A, not caring two hoots about the civil provisions of the Domestic Violence Act itself.
| Section | Name of the State( Crime rate)-> | ||||
| Section 498A | Assam(58.7) | WB(42.3) | Delhi(40.6) | Rajasthan(39.4) | Telangana(39.2) |
| Section 304B | UP(2.4) | Haryana(2.1) | Bihar(2.0) | Odisha(1.9) | Delhi, MP, Jharkhand(1.7) |
| DVA 2005 | Kerala(0.6) | Bihar(0.3) | HP(0.3) | MP(0.2) | Rest(0) |
Source: NCRB 2016 data
The above figures point to an acute lapse. Though states such as Bihar, UP, Haryana recorded highest number of dowry related deaths, and by implication, were more violent towards women, the cases registered under Section 498A did not correspond in a similar manner. In fact, if one considers crime rates, these states recorded 7.5, 10.8 and 26.2 respectively. These are miniscule numbers.
The National Family Health Survey (NFHS) gives a rather comprehensive picture of domestic violence. As per the last report of the survey published for the years 2015-16, as many as 28.8% women reported having experienced domestic(spousal) violence at least once in their lives. Of this, 23.6% belonged to the urban set up while 31.4% belonged to the rural set up. A total of 3.3% women experienced violence during pregnancy. A detailed report explaining attitudes for the year 2015-16 is now available.
Experience of violence from anyone: Twenty-seven percent of women have experienced physical violence since age 15 and 6 percent have ever experienced sexual violence in their lifetime.
The detailed report mentions that the most common type of spousal violence is physical violence (27%), followed by emotional violence (13%). Six percent of ever married women have experienced spousal sexual violence.
The trends in spousal physical or sexual violence showed that ever-married women’s ever experience of spousal physical or sexual violence has declined from 37 percent in NFHS-3 to 29 percent in NFHS-4; however, there has been almost no change in women’s experience of spousal physical or sexual violence in the 12 months preceding each survey (24% in NFHS-3 and 22% in NFHS-4).
One-fourth of ever married women who have experienced spousal violence report experiencing physical injuries, including 8 percent who have had eye injuries, sprains, dislocations, or burns and 6 percent who have had deep wounds, broken bones, broken teeth, or any other serious injury.
The report also revealed that certain forms of violence like slapping were far more normalized than say, burning.
Regarding attitudes on wife-beating specifically, the report had following observations,
“An important indicator of empowerment is the rejection of norms that underlie and reinforce gender inequality. One such gendered norm is husbands’ “right” to control their wives in various ways, including through violence. Rejection of such norms potentially signifies greater gender equality. 52% percent of women and 42 percent of men believe that a husband is justified in beating his wife in at least one of seven specified circumstances which included reasons like the woman showing disrespect for the in laws, neglects house or children, goes out without informing him, etc.
Source: NFHS India report 2015-16
Women and men are both most likely to agree that a husband is justified in hitting or beating his wife if she shows disrespect for her in-laws (37% and 29%, respectively) and are both least likely to agree that a husband is justified in hitting or beating his wife if she refuses to have sex with him (13% and 9%, respectively)
A study done by International Center for Research on Women (ICRW) reported that one among five Indian men admitted to having forced their wives into sex. 65 % of the same men said that they believe there are times when women deserve to be beaten”[ii]
However, the starkest fact that the report brought out was that only 14 percent of women who have experienced physical or sexual violence by anyone have sought help to stop the violence, down from 24 percent in NFHS-3.
Source : NFHS India report 2015-16
This is an extremely worrying trend in a political climate where women are constantly being accused of misusing the domestic violence act.
Issues in Implementation: Lack of Political Will?
Despite the Act being in force for a decade now, the political will to put the necessary infrastructure for the implementation of the Act has lagged behind. In most cases the protection officers are appointed at the district level, making their access to the women very difficult. In a lot of cases, existing administrative officers double up as protection officers, which either means a lot of additional workload or the compromise in their role as protection officers. Many of these protection officers are not clear about their roles, more than a decade after the passage of the Act. Neither are there institutions or bodies constituted by state to spread awareness about the Act. In states like Haryana, Punjab, UP follow up studies done by Lawyers Collective and others showed that protection officers had not been appointed 1-2 years of the enactment of the act. In other state like Bihar and Jharkhand, protection officers have not been appointed still. In most places, protection officers are unclear about their role. In the places where they were appointed, a permanency could not be maintained.
Further there is an acute shortage or absence of shelter homes for abused women. Most of these shelter homes are overcrowded and hence allow the victim to stay for only a couple of days, after which the victims need to make their own arrangements. Considering the fact that domestic violence is too frequent in Indian households, most village and semi urban areas still remain devoid of shelter home-like facilities. Necessary campaigns are not carried out to remove the stigma against women who finally manage to come out of abusive violent relationships.
Not only this, several bureaucratic measures discourage women from seeking help. For example, as per a case study done by Majlis, a women’s rights organisation, schools insist on an interim court order giving custody of the child to the mother before issuing a leaving certificate. Such orders take time in the absence of a formal divorce. Hence, women are not able to walk out of violent households for the reason that it will be extremely difficult to get the children admitted into new schools.
Further, in the absence of adequate number of protection officers and an awareness about them being the first stop, most victims of domestic violence end up visiting the police. The police usually normalizes incidents of domestic violence unless the clause of dowry related brutality is added to it. Here the worst sufferers are women from the lowest class and caste as the police feel that they don’t get any incentive to record and follow up such cases. At the same time, when women from affluent class approach the police for such cases, the police immediately takes it upon itself to inform the husband and try to mediate to get a settlement ‘outside’. Hence the important role that the police or legal authorities should play is severely compromised.
It is upsetting that courts have now assumed the role of an overarching patriarchal figure ready to mediate in ‘broken marriages’, not hesitating to send the woman back to the same violent atmosphere she willingly wants to leave. The concern and well-being of the women has taken a backseat. An entire political campaign is being built outside for the dilution of the law, in a situation where conviction rates are already low. The NFHS data makes a strong case for understanding the nature of violence that women face on a daily basis. Instead of suspecting whether complaints are “genuine” it would serve our legal luminaries well to understand the ground realities of why the conviction rates are low or how the women can be empowered through civil measures.
References:
[i] As per the NCRB, Crime rate is calculated as the number of crimes committed per lakh (100,000) of the population
[ii] Gaynair Gilliam, “ Gender Equality: Indian Men’s Attitudes Complex” 2011
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