Speaking of Injustice: Women and Domestic Violence Law in India

Image result for violence against women in India
A 2018 protest against rape and violence against women in India. Piyal Adhikary/EPA

by Shalu Nigam 16 February 2020

On February 5, 2020, a news report appeared which reads, “Man beheads wife, walks to police station with severed head for 3 kms” in Uttar Pradesh Barabanki district. On February 15, 2020, another news item reported “Woman found hanging in UP, Family alleges dowry death”, also, on February 4, 2020 in “Odisha: A woman battles for life after in-laws set her on fire over no dowry” says another news item. On January 23, 2020, a “newly wed woman killed for dowry in D’nal”. There are many more of such news items which appear on daily basis and depict the manner in which war is being waged on women within homes. Frequently, domestic violence is trivialized and normalized and is being dismissed as minor altercations or trivial disputes by the society, police and courts while disbelieving women as victims and survivors of violence. This work reflects that there is a need for greater introspection to `make homes safe’ for women.

The Data on Domestic Violence

After a long wait, it is in 2019 that the National Crime Record Bureau of India has published its report pertaining to crimes in India 2017. According to this report

10,45,51 cases have been filed under Section 498A IPC, a criminal law dealing with `cruelty’ against married women by their husbands and in-laws;

7,466 cases have been registered under Section 304B, criminal law pertaining to dowry deaths; 

10,189 cases have been registered under Dowry Prohibition Act a law that bans giving and taking dowry; 

5,282 cases have been registered for abetment of suicide among women, and

616 cases have registered under the Protection of Women Against Domestic Violence Act which provided for civil remedies to the victims of domestic violence. Men who violate the orders of the court are being booked under the criminal law. (437 in 2016)

The data shows that a large number of women are not safe in their own homes. They are being physically and mentally assaulted, verbally and emotionally tortured, discriminated, sexually harassed, murdered, forced to commit suicide and attacked in numerous ways. A large number of women are being tortured and killed for dowry or for any other reasons in a domestic relationship. Homes, which are supposed to be the safe spaces are not providing security and comfort to women in these situations. It is not that these incidents have suddenly increased. The data over years show that millions of women have been knocking the doors of the court in the hope to seek violence free life and violence free homes for themselves and their children.

Table 1. Number of Cases reported All Over India[1]

Year 498A, IPC Dowry Deaths, Section 304 B, IPC Dowry Prohibition Act PWDVA Abetment to Suicide
2013 118866 8083 10709
2014 122877 8455 10050 426 3734
2015 113403 7634 9894 461 4060
2016 110378 7621 9683 437 4485
2017 104551 7466 10189 616 5282

The figures in Table 1 show that a significant number of women are reporting about the abuse they face in their homes, yet, the society has become immune to screams of women who have burned, murdered or killed in their homes. This data indicate that the institution of `family and community are not sufficient enough’ to protect women. Indian social structures and traditions have failed to protect women and children from violence in every day life.

Convictions rate are low

The NCRB report further indicates that the conviction rate is as low as 9.5 percent in Section 498A cases in 2016 which rose to 15.9 in 2017. In cases pertaining to dowry deaths, the conviction rate is 39.1 percent in 2016 which increased slightly to 41.1 in 2017. More the number of crimes reported pertaining to violence against women in homes, lesser is the conviction rate recorded in such cases.

The NCRB report of 2017 pointed out that in the year

9925 cases are compounded or compromised under Section 498A,

911 cases are disposed of because of plea bargaining,

866 cases are quashed, and

12898 are disposed of without trial.

Conviction is reported in only 6777 cases whereas acquittal is recorded in 34153 cases. Hence, in a large number of cases, even trial process is not completed.

Perhaps, too much pressure is being exerted on women at every step of the legal system, from registration of complaint to completion of trial process that they compromise the case or file for quashing the complaint out of frustration or running around in the courts, delay, lack of finances or for any other reasons and these are not being taken into account while making the statement that women are misusing the law. The figures indicate that majority of women who knock the doors of the court are not receiving justice. Frequently, violent men are being acquitted by the courts.

Violent men are not held accountable for their unlawful actions

When a large number of women are approaching the police and the courts with their complaints of violence within homes, despite of facing various difficulties, police is hardly arresting violent men and the courts are failing to hold them accountable.

Not all these women are `disgruntled’, liars or gold diggers. as the Supreme court in Arnesh Kumar v State of Bihar in 2014 has made the sweeping statement that the Section 498A is being ‘misused and abused by disgruntled women’ and directed to dilute the provisions relating to arrest and bail of accused persons. The courts in several cases have normalized and trivialized the serious complaints of violence while dubbing violence as `dispute’ or `ego tussles’. Myths and misogyny operate in the courtrooms to deny justice to women survivors of violence.

Moreover, in 2017, in Rajesh Sharma v State of UP the Supreme court has gone to the extent of passing a directive to police and magistrates that no automatic arrests or coercive actions to be made without ascertaining the veracity of the complaints lodged under Section 498A. It suggested formulation of `Family Welfare Committees’ to scrutinize every complaint of domestic violence to ensure that no `false case’ is registered. Without examining the ground realities, the court concluded that the law is misused by `vengeful’ women. It sees men as victims of this `cruel law’. While himpathising (A term used by Kate Manne) with the accused persons, the bench remarked that there was “violation of human rights of innocents”. No iota of compassion is shown towards wives who are being abused, abandoned, burned, murdered, killed, raped and brutalized.

However, after protest by several women’s organizations and petitions filed in the Supreme court, in the matter of Social Action Forum for Manav Adhikar v Union of India, the court in 2018 ordered the formation of committees be done away with while retaining the provision relating to no arrest and bail for the accused persons. Even earlier, the Law commission and several other state institutions too, have recommended to dilute the domestic violence law.

Hence, the state is treating domestic violence as a social crime and using manipulative tools including mandatory mediation to compel women to arrive at a `compromise’ or `settlement’ with the accused persons without any assurance for safety or women and children and without punishing the abusive men. In many other cases pertaining to domestic violence, dowry deaths and suicides by married women, the courts have granted immunity to violent men while upholding the principle of `family harmony’, and in the process, disregarded the constitutional rights of women as citizens.

The legal system provides a platform for women to raise their concerns, however, the spirit with which laws have been enacted is not backed by the commitment in implementation. Women as victims and survivors are being disbelieved, held as complicit in crime and are victimized in the process. Over the years, concerted actions are being taken by the state actors to dilute the provisions of law. The system is being manipulated to serve the logic of the patriarchy protecting the interest of the dominant group while reinforcing the prevailing biased stereotypical norms.

The discourse relating to misuse of law dominates while all other voices remain suppressed while providing suggestions on the under-use of the law relating to domestic violence. Further, in the recent years, the Ministry of Home Affairs has issued strict advisories to `avoid unnecessary arrests in 498A cases to curtail the misuse of the law’. Surprisingly, the National Commission for Women against its mandate proposed to amend the Dowry Prohibition Act while diluting its provisions to enhance penalty provisions for misuse of the Act, which was later dropped by the Ministry of Women and Child Development after receiving comments from the high level committee on status of women and Ministry of Home Affairs. This was again repeated in 2015, but later it was turned down. The state agencies without addressing the real issues affecting society such as toxic masculinity or systemic inequalities, are superficially making biased recommendations without addressing the ground realities.

Law is not offering viable solutions to women

Despite of the state’s dismal behavior towards the domestic violence law, the survivors, who may be powerless and vulnerable, despite of their challenging circumstances are approaching the courts and police stations hoping to seek justice. However, what the state is offering women is not justice but compromise or settlement with the violent men without any guarantee of safety or security. The Protection of Women form Domestic Violence Act 2005 provides for shelter homes, medical facilities and legal aid. However, these are far and few. The law has failed to offer any solution to women victims and survivors of violence. the lofty goals in law remain unaccompanied by the will or the obligation of the state to provide for material, economic, political or social interventions. Domestic violence law, though, is supposed to address the rights of women within a marriage, yet in its implementation, it could not imagine the possibilities of women’s existence outside the family. In no manner could the law challenge the unequal marital relationship or the structural inequalities that exist to make women’s situation vulnerable within the marriage.

By criminalizing `triple talaq’, the problems women facing in the homes have not vanished as a large majority of Hindu women remained out of the purview of this law. Further, despite of the existence of dowry law for decades, the cases of coercive dowry demands or increasing incidences of dowry violence could not be curtailed. Perhaps, the  problems lie in implementation of laws and in the failure of the legal system to deliver justice to women.

The State Need to provide Justice

Despite of the fact that law is being implemented in the manner that complainants are being revictimized in the process, women are using the law to reclaim their rights and resist violence. Those who are registering their complaints are negotiating their rights and contesting their claims while challenging the stubborn patriarchy. While rewriting their own stories of emancipation, they are altering the inegalitarian structure within families and creating democratic spaces within the society and in fighting to seek violence free life, they are demanding dignity for themselves and a peaceful life for their children.

Despite several controversies have been raised about the courts in past, women expect that the courts will grant them justice. The Supreme court with three female judges raises expectations that women’s issue will be heard with an empathetic mindset. More so, in domestic violence cases, it is hoped that without going into the debate of misuse and abuse of law by women, the courts will adjudicate the complaints of women fairly. When millions of women are demanding to end violence, the courts need to hear them patiently without preemptive bias and the state should respond in a fair manner to provide justice. Focus, therefore needs to be laid on distributive and restorative justice where women and children facing domestic violence be provided with material and economic support including qualitative medical care, psycho-social care, short stay homes, economic and social security provisions besides legal aid. Challenges that exist at a broader level, such as inequalities, discrimination and the hierarchical power imbalance within the institution of marriage and society, may be reexamined. A patriarchal approach and mind-set must be dealt with.

[1] Adapted from the Crimes in India published by NCRB, Government of India. Data from 2006 to 2016 has been culled out pertaining to these specific legal provisions