Why Domestic Violence Laws In India Fail To Protect Victims: Bigotry, Absurdity And Bad Law

There has been a 27% increase in violence against women in India since 2012. Data from the National Crime Records Bureau suggests that between 2009 and 2013 cases of violent abuse against women have increased over 50%. These statistics do not include cases that go unreported which would increase the numbers exponentially. If we look at laws, India has many legal measures in place to address violence against women. India has a National Commission for Women that aims to address violence faced by women. In 1993 a National Human Rights Commission was set up to address human rights abuses that include violence against women. Additionally, constitutional measures such as Article 14, 15, 16 includes protection of women from discrimination, harm and is founded on upholding equality and human rights. India is also a ratified member of UN’s CEDAW, the ICCPR and the ICESCR that are international treaties which bound the ratified nations to enforce measures that protect women from abuse and discrimination. However, such laws remain widely unenforced in the country and cultural norms and stigma prevent women from reporting abuses and seeking redressal.

The laws and measures to prevent spousal abuse present in India are very ambitious and idealistic which makes it tough for organizations and officers to enforce them. There is a lack of practical authority to enforce such laws and India’s complacent bureaucratic judicial practice makes seeking redressal and relief an expensive and time consuming affair. Various legal experts have pointed out that the Indian National Human Rights Commission and National Commission on Women have failed to address cultural norms, stigma and the systemic entrenchment of domestic violence in India.[1]

Several sociological studies have illustrated that the issue of domestic violence is closely woven with the caste system, economic status and class discrimination.[2] Hence domestic violence can be seen as an intersectional issue that is significantly influenced by multiple identities and social status of women. Intersectionality is an analytical tool for studying, understanding and responding to the ways in which gender intersects with other identities like caste, class, race, sexual orientation and how these intersections contribute to unique experiences of oppression and privilege. Intersectional analysis posits that we should not understand the combining of identities as additively increasing one’s burden but instead as producing substantively distinct experiences. In other words, the aim is not to show that one group is more victimized or privileged than another, but to reveal meaningful distinctions and similarities in order to overcome discriminations and put the conditions in place for all people to fully enjoy their human rights.[3] Hence, domestic violence is a very subjective experience that is unique to every intersected identity. We must not assume that the experiences of domestic violence are same for all women and hence policies and laws need to take into account the subjectivity, severity and uniqueness of such experiences. A blanket law that assumes domestic violence is a homogenous and uniform experience for women will fail to cater to the nuances of abuse and hence effective and proper relief would be poorly met to the victim. Intersectional identities also put some women at higher risk of domestic abuse than others and the law needs to take note of the varying vulnerability and stress on more action to protect the most vulnerable.

India’s legislative measures and the commissions assigned to deal with domestic violence have poorly addressed the issue and have failed to effectively stop the rise in domestic violence in the country. [4] Firstly, this is due to the local police’s unwilling and complacent attitude towards the implementation of the statutory measures for domestic violence against women.[5] Secondly, the cultural patriarchal attitudes that govern the position of women in the family that are systemic and deeply entrenched hinder the attempts at reform. [6] The third factor that affects the implementation of laws is the diminished economic power of women in urban and rural areas and the intersectional identities of women that result in them being ignorant about their legal rights and ways to seek redressal. [7]

Not so long ago in 2008, the Indian Supreme Court in the case Premnarayan Tiwari v. State of Maharashtra held that cultural norms are to be seen as mitigating factors to a crime instead of making the act more punishable. The holding indicated that domestic violence laws cannot be enforced efficiently in courts because of the persisting notions regarding inter-caste marriage and gender roles in decisions that come from a place of deep entrenchment. Violation of family honor due to unsanctioned inter-caste marriage was used to justify the violence meted out to the woman’s in-laws and husband.

Justice Sirpukar mentioned that the woman alleviated her family’s anger by refusing to leave the college where she was “ openly mixing with the society” and that she was to blame for the honor killings not only because of her inter-caste marriage but also because she became pregnant hence reaching “ a point of no return”.[8] This case sets a dangerous precedent as now laws could be interpreted in a way that accommodates cultural norms that are oppressive, discriminatory and promote the caste system to antagonize the victim of domestic violence and preventing her from seeking redressal. Such a precedent is bad law and should be rightfully unconstitutional as the constitution prohibits discrimination based on caste, honor, and cultural practices.

This case also highlights how a woman’s autonomy and agency is disregarded and condemned. Laws are meant to protect victims of domestic abuse but they are being interpreted in a way that blames them for the abuse they have experienced using unconstitutional cultural and casteist reasons. The holding suggests that violence is a justified response to a woman’s violation of traditional norms and that intersectional ideas of gender and caste supersede legal provisions. It is paradoxical that the laws were created to mitigate violent cultural biases but are being interpreted in a way that justify such biases.

Another reason for the lack of implementation of the laws is the hesitance of officials in enforcement of the directions of the government. Police have routinely shown reluctance at lodging domestic violence complaints and prosecuting lawyers refuse to work on such cases especially if the victim is economically weak.[9] Hence poorer women have significantly lower chances as finding relief from domestic abuse and since women from the lower castes are frequently trapped in low wage bonded labor and caste determined occupations that have meager pays they are mostly unable to seek legal action against domestic abuse and most cases go unreported. Very few states have set up a state commission as per directions of the National Commission for Women and a state like Uttar Pradesh where rates of domestic abuse have been observed to be significantly higher has also an absence of such a commission.[10] Indian courts have excessive number of pending cases to tend to due to poor funding and a survey indicated that the courts of India would require 320 years to hear all the matters present in backlog.[11]

The holdings of lower courts indicate reluctance to convict and jail domestic abusers and in one such matter a man accused of domestic abuse under Section 498A of the IPC was acquitted on the ground that the victim apparently gave a dying declaration that exonerated her spouse from all the charges even though eight witnesses brought in by the prosecution testified that the victim was abused by the spouse. However the High Court overturned this decision.[12] In another case the Allahabad High Court significantly reduced the sentence of abusers who had severely beat the victim with a stick and conspired to burn her alive to a fine of Rs.1000 without having the defense to explain why a reduction of sentence should be allowed.[13] However when this case was taken to the Supreme Court Justice Shah addressed the the difficulty in getting the lower courts to prosecute the abusers using the domestic violence laws. He said, “It is virtually a matter of shame to the civilization that indiscriminate attacks and violence are directed against married women in certain quarters including so-called educated for obnoxious and anti-social demand of dowry and the accused are let off for various reasons. Result is violence against women continues unabated as law loses its deterrent effect.”[14]

Claiming that patriarchal bias is the reason why domestic violence provisions are not effective is a blanket explanation that does not focus on rural and urban differences, religion, regional differences and their corresponding cultural biases.[15] In urban settings familial settings are changing with a decline in arrange marriages and women are not forced to live with the husband’s family and burdened by the corresponding responsibilities. Even though the extent of female autonomy is variable throughout India, the fundamental norms like arrange marriages, joint families, hierarchies in families, inheritance and property related norms are strongly prevalent.[16] Women in these rural and semi-urban settings still face heavy pressures to marry and reproduce and divorces are perceived as taboo. Women are largely dependent on their husband’s property for sustenance so the women are even less inclined to seek redressal and a divorce.[17] These factors result in domestic violence not being reported and the women due to their lack of social capital and autonomy stay victims for years.[18] In rural North India class, caste and gender determine the strengthening of kinship ties through marriage and hence domestic violence is not reported out of the fear of severing such ties.[19]< Economic status and caste related discrimination play a pivotal role in preventing women from lower income groups and from backward classes from seeking relief in cases of domestic abuse. A study conducted recently in India concluded that domestic violence is linked to a substantial economic factor.[20] This study also found a link between poor levels of education and domestic abuse and a strong link between poverty and domestic abuse.[21] Poor, lower caste and rural women have less access to feminist organizations that deal with domestic abuse and the lack of literacy also prevents these women from reaching out and reporting abuse. Most leaders and organizers of women’s rights and interest groups in India that aid the process of seeking redressal for domestic abuse are urban, upper middle class educated women who are not easy to access when you are illiterate, poor and live in rural areas.[22] These women however, due to diminished autonomy and poverty are the most vulnerable and common victims of domestic abuse.

Due to limits in funding and resources feminist NGOs and social workers in rural areas depend more on direct action than on litigation and rural women are additionally also unaware of legal remedies due to illiteracy.[23] Due to rampant bribery economically disadvantaged women are often unable to seek redressal.[24] The police have also been seen to behave discriminatorily towards women from lower castes and lower social status and such women more often that not are unable to appeal their cases because of economic and social constraints.[25] Poor women and women of the lower caste face more difficulty in reporting domestic violence because they are marginalized and because domestic violence has been normalized as a distinct aspect of the patriarchal social hierarchy in India where women are infantilized and considered inferior. [26]

It has been observed that normative gender roles give men a legal advantage in India during crimes of violence. In the case Gopi v. State of Karnataka a less severe sentence was given to the rape accused on the basis that he was “the sole bread winner of the family”. Because his daughters were “of marriageable age” a lower sentence was handed to the rape accused because as he was the head of the family who held the responsibility to marry off his daughters.[27] This case indicates how gender superiority provides a legal advantage while inferior genders are stripped off legal protection.

Women claim to have lost faith in the legal system to seek redressal because of the rampant corruption, hesitance to file reports by the police in India. [28] In UK a report from Barnados called “Puppet on a String” it was shown how mobile phones, internet and electronic devices are used to film pornography but first the underage victims are lured into relationships with older men who emotionally and physically abuse them in the ‘relationship’ and then make them submissive after which they force them to act in pornographic videos. [29]This trend may also be applicable in urban India or with vulnerable women from rural India. However such cases have not been reported in India, with the digital age one can expect such a trend to develop. And since domestic abuse is a recurring aspect in these exploitative ‘relationships’ legal scholars and legislative bodies should contemplate amendments to the domestic violence statutes as such cases of domestic violence is motivated with the intention to exploit. This kind of violence falls under ‘domestic’ violence because the victim and the perpetrator may commonly be in a ‘relationship’. And owing India’s patriarchal culture the victim may face additional domestic abuse from members of her own family if they find out about the sexual exploitation she has been subjected to as it may bring ‘dishonor’ to her family.

Cultural bias plays an important role in preventing the laws in place to be used to seek redressal for domestic violence as does hesitance to report. Intersecting dynamics of caste, class, gender are pivotal in the prevalance domestic violence and poorer lower caste women have less access to education, awareness of their rights and legal remedies. India’s legislative remedies often ignore caste, class and geographical location hence they fail at protecting the very women the legislations ought to protect. Laws have failed to grant relief to the victims due to the brahminical arrogance of the judges who refuse to depart from cultural discriminatory attitudes.

For such laws to be effective legal practitioners and scholars must acknowledge intersectionality. To uphold international treaties like CEDAW India must account for the intersectional nuances that put women at a disadvantage. Lower courts in India must give effective relief to victims, especially poor victims who do not have the money to appeal their case. Blanket excuses to scapegoat the prevalence of domestic violence in India on grounds of ‘Indian culture’ is not constitutional and courts must use legal instruments to uphold justice, equity and good conscience.

Raya Sarkar is a lawyer and human rights activist with a special interest in women’s rights, dalit rights and queer rights. 
Edited by Manisha 

[1] Angela K. Carlson-Whitley, Dowry Death: A Violation of the Right to Life Under Article Six of the International Covenant on Civil and Political Rights, 17 PUGET SOUND L. REV. 637, 645-46 (1994)
[2] Diane Mitsch Bush, Women’s Movements and State Policy Reform Aimed at Domestic Violence Against Women: A Comparison of the Consequences of Movement Mobilization in the U.S. and India, 6 GENDER & SOC‘Y 587, 600 (1992)
[3] Intersectionality: A tool for Gender and Economic Justice, Women’s Rights and Economic Change No. 9 Aug 2004
[4] Tahira Karanjawala & Shivani Chugh, The Legal Battle Against Domestic Violence in India: Evolution and Analysis, 23 INT‘L J.L. POL‘Y & FAM
[5] Indira Jaising, Domestic Violence and the Law, 1 J. NAT‘L HUM. RTS. COMM‘N
[6] Sudhir Kakar, Feminine Identity in India, WOMEN IN INDIAN SOCIETY: A READER Rehana Ghadially ed., 1988
[8] Dilip Premnarayan Tiwari & Anr. v. State of Maharashtra, (2009) 16
[9] Carlson-Whitley, Dowry Death: A Violation of the Right to Life Under Article Six of the International Covenant on Civil and Political Rights , at 647-48
[10] AMNESTY INT‘L, Making Violence Against Women Count: Facts and Figures, Press Release 05/03/2004
[11] Justice Rao, Courts Will Take 320 Years to Clear Backlog Cases, TIMES OF INDIA, Mar. 6, 2010
[12] Kamalakar Nandram Bhavsar v. State of Maharashtra, (2004) 10 S.C.C. 192
[13] Narsingh Prasad Singh v. Raj Kumar, (2001) 2 S.C.R. 984
[14] Id.
[15] Catherine Kohler Riessman, Stigma and Everyday Resistance Practices: Childless Women in South India, 14 GENDER & SOC‘Y 111, 112 (2000)
[16] Shireen J. Jeejeebhoy & Zeba A. Sathar, Women’s Autonomy in India and Pakistan: The Influence of Religion and Region, 27 POPULATION & DEV. REV. 687, 690 (2001)
[17] Amy Hornbeck et al., The Protection of Women from Domestic Violence Act: Solution or Mere Paper Tiger?, 4 LOY. U. CHI. INT‘L L. REV. 273, 303-04 (2006)
[18] e Tim Dyson & Mick Moore, On Kinship Structure, Female Autonomy, and Demographic Behavior in India, 9 POPULATION & DEV. REV. 35, 45-46 (1983)
[19] Prem Chowdhry, Enforcing Cultural Codes: Gender and Violence in Northern India, 32 ECON. & POL. WKLY. 1019, 1019 (1997)
[20] Sandra L. Martin et al., Domestic Violence in Northern India, 150 AM. J. EPIDEMIOLOGY 417, 418-19 (1999)
[21] Ravi K. Verma & Martine Collumbien, Wife Beating and the Link with Poor Sexual Health and Risk Behavior Among Men in Urban Slums in India, 34 J. COMP. FAM. STUD. 61, 61 (2003)
[22] Leslie J. Calman, Women and Movement Politics in India, 29 ASIAN SURV. 940, 944-45 (1989).
[23] Meera Velayudhan, Women’s Land Rights in South Asia: Struggles and Diverse Contexts, 44 ECON. & POL. WKLY. 74, 77 (2009)
[24] Gail Omvedt, The Purpose of Reservation—II, HINDU, Mar. 25, 2000
[25] P. Sainath, A Dalit Goes to Court, HINDU, July 11, 1999
[26] William J. Eisenman, Eliminating Discriminatory Traditions Against Dalits: The Local Need for International Capacity Building of the Indian Criminal Justice System, 17 EMORY INT‘L L. REV. 133, 138 (2003)
[27] T.K. Gopal @ Gopi v. State of Karnataka, (2000) 6 S.C.C. 168
[28] Linda Hamilton Krieger, The Burdens of Equality: Burdens of Proof and Presumptions in Indian and American Civil Rights Law, 47 AM. J. COMP. L. 89, 98 (1999)
[29] Puppet on a String, Bernados Publication 2012

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