by Tanmay Gupta & Yashashwini Santuka 17 July 2020
With the current nation-wide lockdown owing to the outbreak of COVID-19 in place in India, the situation of women – trapped within the confines of four walls – may seem to worsen given their greater exposure to the peril of domestic violence, as demonstrated by the two-fold increase in gender-based violence across the country, with the National Commission for Women receiving 257 calls in the final week of March as opposed to 116 calls in the first week. At such a precarious juncture, it becomes paramount to recognize the ineptitude of the Indian legal system inappositely dealing with such cases and to comprehend how the inherently patriarchal structure of the Indian society plays a role in the same by critically analysing all forms of legal recourse available to the victims of domestic violence.
Employment of §498A in conjunction with PWDVA as an Efficient Recourse
By defining “cruelty” in an extremely vague fashion as “any act that is likely to drive the woman to commit suicide or to cause grave injury or danger to life” without specifically addressing the various forms of violence, which include physical, mental, verbal, psychological, sexual and economic violence, §498A essentially leaves it to the discretion of the police officers to determine whether the torment endured by the victim comes within the ambit of “cruelty”. Reports demonstrate that a considerable number of these cases under this provision are treated with hostility and indifference by the police officers. The authorities pay negligible attention to the gravity of the victim’s predicament, thus generating scope for the perpetrator of the injury to evade punishment. This apathy generally stems from a variety of factors, with the most prominent one being the belief that – matters within a household are private and should be resolved personally, without the involvement of the state. This orientation also encompasses counselling women, a technique to pursue them to ‘settle and adjust’ in such a deleterious environment.
In addition to this, §498A is still largely associated with dowry-related harassment, thereby attributing the violence to issues stemming out of marriage typically inflicted by the husband, and offering a recourse available exclusively to married women only. The Protection of Women Against Domestic Violence Act, 2005 eased this situation by providing recourse for all women – married, in live-in relationships, mothers and daughters, without the obligation of sharing a household for a stipulated period of time. The PWDVA, as civil law, is pertinent as it aids in providing relief to the victim in the form of compensation, protection from further harm or injury, and the bestowal of the right to reside in the shared household upon the victim.
- 7, §8 and §10 of the PWDVA impose certain positive obligations on the government to provide safe homes, medical facilities, and service providers to women who are victims of domestic violence, respectively. §4(1) allows anyone in the community to report an incident of domestic violence, thus assisting the women who may not be in ideal circumstances to do so. Sections 18 to 22 lay down the numerous forms of respite available to the aggrieved, which include protection orders, residence orders, monetary relief, custody orders, and compensation orders, respectively. These are particularly more significant and of greater utility in a lockdown wherein women are forced to adjust in absolutely execrable conditions owing to their fear of being stranded with no aid or support.
Furthermore, the PWDVA provides for a single-window clearance system under §26 of the Act, which states that civil relief can be claimed in any pending criminal proceeding. This facilitates the minimization of procedural filing and additional case proceedings, making justice more accessible to the victims.
Despite the provisions in PWDVA and §498A being widely relied upon, only a few cases of domestic violence are reported and filed. Although the aforementioned forms of recourse are welfare legislation that endeavour to ameliorate the condition of the victims of domestic violence, they prove to be inadequate in dealing with cases whose details can be conveniently distorted by the offenders.
Exigent Need for Evolution of Marital Rape Law
Unfortunately, the IPC offers little respite to married women who are afflicted with the indubitably reprehensible act of rape, an offence defined by §375 of the IPC. Through an exception clause resonant of archaic viewpoints, the provision utterly disregards the plight of the victims of this offence when committed within the confines of the four walls of a matrimonial home by exempting sexual intercourse by a man with his wife, regardless of her consent, from the domain of rape unless she is under 15 years of age. This stems from the hegemonic philosophies of not encroaching upon the sacred institution of marriage, amplified by the beliefs fashioned in the Victorian era. The conception of implied consent within marriage, devised by Lord Hale in the 17th century, as well as the common law of overture, are still followed in India despite their antediluvian nature.
By implementing a variety of measures such as the establishment of a 24-hour hotline to provide the required assistance to the victims of domestic violence, the launch of an emergency WhatsApp number for reporting cases during the period of lockdown, and the provision of support through counselling over phone or online, the National Commission for Women and numerous NGOs have done a commendable job in promptly responding to this unprecedented adversity.
However, such actions cannot realize their utmost potential unless the exigent need for rectifying the fundamental shortcomings of the anachronistic legal provisions with respect to domestic violence is duly recognized by the legislature and the judiciary. This can only be achieved if the persisting gender inequalities highlighted by the pandemic inspire a transformation in the patriarchal mindset of the people empowered to bring about the aforementioned reforms.