Author: Nisha Singh, II Year of B.A.,LL.B(Hons) from Amity Law School, Amity University, Noida, Uttar Pradesh.
ABSTRACT
The imposition of lockdown during the Covid-19 Pandemic compelled people to stay inside their homes. It was imposed to protect people from contracting the Coronavirus. However, this led to a bigger threat especially to women and children because of the escalation in the cases of Domestic Violence.
Earlier in 2005, the Protection of Women from Domestic Violence Act was legislated to protect women from Domestic Violence and provide them with adequate remedies against it. However, this act has failed to curb domestic violence pre-and-post lockdown in India. This chapter aims to analyse the reasons for the spike of domestic violence cases during the pandemic, the relief available against it, the loopholes in the laws and suggests the ways that will help in making the Act more effective.
INTRODUCTION
“You crushed me as I screamed in pain.
Your words ripped out my heart.
The world grew dull. I felt insane.
Did you ever care about that part?”
An excerpt from the poem “Returning Faith” by Lynette Gutwein
Domestic Violence has been prevalent in the world for centuries. The term “Domestic” denotes a domestic setting. According to Section 3 of The Protection of Women from Domestic Violence Act 2005, Domestic Violence is a physical, sexual, verbal, emotional, and economic abuse faced by a woman by her spouse or family members. In India, Domestic Violence is a recurring issue.
According to a research published in the Journal of Epidemiology and Community Health, every 1 out of 3 women in India are exposed to violence. Ever since the lockdown has been imposed to protect people from the contraction of the Coronavirus, the numbers of Domestic Violence cases have escalated immensely. Amid lockdown, a survey was conducted by the National Family Health Survey (NFHS) in 7 states, and according to the data released by the NFHS, more than one-fourth of the women surveyed said that they were subjected to domestic violence. The scope of this violence can range from subtle, coercive to violent forms of maltreatment. It includes hair-pulling, marital rape, beating, and even killing.
The cases of complaints during the pandemic have increased by 94% as reported by the National Commission for Women. Since people are completely forced to stay at home and not mingle with others, the perpetrators find it convenient to harm the victims as it is difficult for them to seek assistance or help from the outside world.
A lot of women do reach out for help, but a majority of women fail to communicate their misery with their loved ones or the government authority. A major reason for not being able to seek help is their confinement with the abusers. The abusers tend to control their activities by sharing the same space. They control their mobility and provide them with limited privacy which puts the women in a crucial and helpless position.
Since the institution of patriarchy is pervasive and entrenched in our society, it is not astonishing that women are considered to be the vulnerable group and hence subjected to such violence. Men consider themselves to be superior to women, and women are looked down upon and are practically considered second class citizens.
The notion that men are the breadwinners and females are the nurturers is one of the major reasons why men are given a higher rank in society. Men are accorded with a controlling and dominating social function. Since women are considered inferior to men and the practice of domestic violence has been pervasive, men tend to commit this crime. Some of the justifications given by male partners for causing violence to their respective female partners include their caste, religion, employment, education, dowry, sex of the firstborn child, abortion, genital discharge, alcohol consumption by the husbands, etc.
The term Domestic Violence is not gender-specific, as the violence is faced by people irrespective of their gender. Men and the LGBTQIA+ community are a victim of this violence as well. However, this term has been associated with the violence faced by women. This chapter majorly focuses on the crime of domestic violence against women specifically. In India, it has been mostly found that the women who have an arranged marriage are a victim of the same.
In April 2021, a horrific video went viral on social media where a man was seen stabbing his wife on the road in broad daylight. This led to the death of his wife. The reason he mentioned for committing this heinous crime was that he was not happy with her job at the Safdarjung Hospital and that he ‘suspected’ her of having an extramarital affair. This example proves how dangerous the situation in India is with respect to domestic violence against women and how women are subjected to such violence for the most insignificant reasons. An extra-marital affair, for example, could have been brought in before the court to be adjudged with due process by the court. Instead, he decided to act in fury and bring ‘justice’ to himself by killing his wife in public.
This is not a sole example of such cases. The examples are innumerable. We need to understand the reasons why such cases are so prevalent in our society. The next section discusses these reasons in detail.
REASONS FOR THE INCREASE IN DOMESTIC VIOLENCE AMID LOCKDOWN
Given the upsurge in the number of domestic violence cases amidst the pandemic, some of the most prominent reasons that can be attested to the same are:
Alcohol
The role of alcohol in aggravating domestic violence is two-fold. Some of the people have tried defending themselves by saying that the excessive consumption of alcohol led to their aggressive and violent acts, whereas, some people have tried to justify themselves by saying that they faced some physical and mental reactions as a result of alcohol withdrawal, which was their motivating factor for acting violently with their partner.
Unemployment
The employment rate has deteriorated rapidly ever since the Covid-19 outbreak. Many people have been forced to quit their jobs during the pandemic because the employers and the companies do not have sufficient funds to provide for their employees. According to data released by the Centre for Monitoring Indian Economy Pvt. Ltd. (CMIE), there was a noticeable spike in the unemployment percentage. As much as 8.6% of people around the country were unemployed according to their data released in April 2021. The uncertainty of getting another work and the exasperation of unemployment among men is another determinant factor that is leading to a spike in Domestic Violence.
Financial Crisis
The spike in the rate of unemployment and the low-income has resulted in insufficient finances for the families. The people belonging to the marginalized communities are the ones who suffer the most because of the same. Therefore, the frustration of not being able to manage their finances and the struggle of not being able to feed themselves and their families with sufficient food is another factor that leads to ill-treating of women and children by the males in the families.
No Intervention to Protect the Women
The imposition of lockdown has restricted people’s mobility. The presence of the abuser around the victim all the time is another reason why a woman fails to gather the strength to seek help. The inculcated fear of being caught while seeking help, and the fact that no guardian can come and rescue her, puts the victim in an extremely defenseless and powerless position, and the victim’s vulnerability stimulates the abuser’s actions and intentions.
Denial of Sexual Requests
The men fail to understand the concept of consent when the women deny their sexual requests. The denial of requests also instigates them to act violently with their wives, and they end up abusing their wives either physically or sexually or psychologically.
RELIEF AVAILABLE AGAINST DOMESTIC VIOLENCE IN INDIA- IS IT ADEQUATE?
The domestic violence faced by women is also a result of the existing inequality in society. Through the years, we have seen the evolution of several laws and legislations aiming at protecting women from Domestic Violence. However, none of the laws and legislation passed so far is adequate to protect women from the same.
Prior to the enactment of the Protection of Women from Domestic Violence Act, domestic violence only referred to the brutality and harassment faced by women; or a wife’s death. The provisions of the Indian Penal Code, specifically Sections 498 A and 304B of the Code which deal with anti cruelty and dowry death respectively dealt with Domestic Violence.
However, Section 498 A which deals with anti cruelty against women provides punishment only if the harassment or cruelty faced by her is so grave that it poses a threat to her life or provokes her to commit suicide. On the other hand, Section 304 B deals with dowry death and it punishes the abuser only if it is proved that the death caused to the woman is a result of dowry demands. Therefore, the anti-cruelty can be resorted to when the woman is alive, but dowry death can only be invoked if the woman, who is a victim of the same, dies.
Since these laws did not provide adequate remedies to the victims and limited the ‘types’ of violence faced by the victims of Domestic Violence, new legislation was required to fill in the gaps and provide the requisite relief. Thus, a new legislation was drafted in 2005 and it was known as the Protection of Women from Domestic Violence Act.
The Protection of Women from Domestic Violence Act 2005 (PWDVA) commenced on October 26, 2006. As mentioned in the preamble of this Act, it was introduced to provide effective protection of the rights guaranteed to women under the Constitution of India and to safeguard women from any kind of violence that they were a victim of within their families. It also provides strict rules to prosecute a man who is an abuser and has committed any type of violence against a woman.
The woman, who is a victim of the violence, can file a complaint against her husband or the family members of her husband, be it male or female. Also, to ensure accessibility of justice, it takes into consideration issues like a speedy and fair trial and justice. Overall, this act has been legislated by taking into consideration all the possible and necessary solutions to curb Domestic Violence and to attempt that it becomes obsolete with time.
This act reinforces and encourages the rights guaranteed under Articles 14, 15, and 21 of the Constitution which deal with the Right to Equality, Right against Discrimination, and Right to Life respectively. There are cases that have interpreted these provisions. These cases played a role in influencing the provisions of the PWDVA. Some of them are discussed hereunder:
In the case of Francis Coralie Mullin vs. Union Territory Delhi, it was observed that “any act which damages or injures or interferes with the use of, any limb or faculty of a person, either permanently or even temporarily, would be within the inhibition of Article 21.”
The PWDVA imbibes Article 21 of the Constitution through its definition of physical abuse.
Right to life also includes the Right to Shelter. In the case of Chameli Singh vs. State of Uttar Pradesh, the 3 bench judge stated that “Protection of life guaranteed by Article 21 encompasses within its ambit the right to shelter to enjoy the meaningful right to life. The Preamble to the Indian Constitution assures to every citizen social and economic justice and equity of status and opportunity and dignity of the person to fasten fraternity among all sections of society in an integrated Bharat.”
Thus, for providing shelter to the victim of the violence, section 7 of The Protection of Women from Domestic Violence Act states that “If an aggrieved person or on her behalf a Protection Officer or a service provider requests the person in charge of a shelter home to provide shelter to her, such person in charge of the shelter home shall provide shelter to the aggrieved person in the shelter home.”
However, despite the provisions provided in the Act, it has not been able to deliver as per the expectations. There are many reasons why the act has not been able to deliver. Some of the causes for the ineffectiveness are enlisted hereunder:
The Act ensures to provide the final judgement in 60 days from the first date of hearing. However, fulfilling the promise is a far cry. It takes much longer than the specified period to dispose of a case of domestic violence.
Generally, when a woman is subject to violence and is not financially independent, she leaves her matrimonial house and goes to her parents’ house. However, when the victim’s parents are not financially stable, she has no option other than to stay at the abuser’s house and live a miserable life. The PWDVA fails to safeguard women in such situations and provide them judicial relief and remedies in most cases.
Due to lack of awareness, the women living in rural areas fail to seek help and justice and the act fails to protect them from this crime or provide them judicial relief and remedies.
According to the act, the victim can approach the Protection Officer to report the crime and avail justice, but, the Protection Officers are Senior Officers who have multiple responsibilities and fail to deliver as the ‘Protection Officers’ because of their unawareness of responsibility. Even if they do perform their duties, they take their job very leniently and fail to provide the help that the victim seeks.
The PWDVA Act aims at tackling the problems related to domestic violence and emphasizes the duties and responsibilities of police officers while they investigate the case. Howsoever, numerous times it has been seen that the police fail to investigate and report cases related to Domestic Violence. The existing police and judicial corruption leads to misinterpreting and concealing the cases and that results in failure of justice. It is for this reason that the victims abstain from reporting their cases of violence to the police officers.
SUGGESTIONS
As discussed earlier, the prevalence of patriarchy suppresses the woman, and this is one of the major reasons why men find their act of violence moral and justifiable. The persistent inequality needs immediate action and all the genders must be treated equally. The women must be empowered to speak up against violence. The women, especially the ones living in the rural area, must be provided with training programmes so that they develop new skills and are given the opportunity to work outside their respective houses.
The government and authorities must ensure that Articles 14, 15, and 21 of the Constitution are operated congruously, and there is a need to legislate new laws that uplift women educationally, socially, and economically and provide them equal status as that of men not just theoretically, but practically too.
Secondly, a major reason why women are unable to seek relief and remedies is that the public is still not aware of the act and the laws. It is very important to educate the public about these laws and how they can utilize their provisions to protect themselves. For this, the Government officials, NGOs, and Media need to step up and coordinate together to tackle this problem and educate women of urban and rural areas about the same.
Thirdly, when considering the effectiveness of the act, the NGOs, Police, and Government officials must coordinate with each other and try and figure out the loopholes of the Act. They must keep a check on the provisions provided in the act and observe if they are being implemented as they were intended and if they are as effective. If not, they should try alternative methods to see how the provisions of the act can be tended to and amended, if required, so that the act achieves its objective and provides justice to the women who are victims of the same.
Even if the provisions are being perfectly executed, the officials and NGOs must keep in check the Act’s effectiveness so that it is easier for them to come up with new laws against violence as society progresses.
Lastly, the attorneys must be encouraged to take pro-bono cases and work for the public interest. There are very few attorneys who are willing to work for the interest of society. The Act guarantees free legal aid to all the victims of the violence, however, due to the lack of legal counsels and attorneys working on pro-bono cases, it becomes difficult to provide free legal aid to the victims. The government can actively set up legal aid clinics and inform the masses about the aid available to the victims of the violence. Apart from that, they can also take steps to ensure that the attorneys contribute some hours to these cases. These steps can include hiring more attorneys to deal with these cases, or instructing the attorneys that they have to give a certain number of hours in a year on pro-bono cases.
CONCLUSION
Domestic Violence has been an ongoing battle for years. Amid lockdown the condition of women has worsened as they were subjected to the violence and did not have a way out. Due to the presence of the assailant in the same house in which the victim also lives, she could not reach for help as the assailant would control all her activities. The reason for the spike in the number of Domestic Violence cases like unemployment, financial crisis, denial of sexual requests etc. Has been discussed in detail in the chapter.
Though the laws try to protect women from this crime and provide relief and justice, they have not turned out as effective as promised. It is still a long way to go until Domestic Violence gets completely eradicated from the society. The provisions mentioned in the Criminal Procedure Code, that is, Section 498 A, did not turn out to be effective enough because of its limitations in scope and Section 304 B would provide punishment only if the victim was dead. The legislation of the Protection of Women from Domestic Violence Act is indeed the right step taken to grasp control over the domestic violence cases and provide remedies to the victim. However, the loophole in the execution of the provisions like failing to provide final judgement within 60 days, lack of awareness, leniency of the Protection Officers are some of the reasons why the Act has not been as effective as promised.
To ensure proper execution of the Act, there is a need for proper coordination amongst the authorities and NGOs, creating awareness amongst women residing in urban and rural areas, and providing effective legal aid by encouraging the attorneys to take pro-bono cases.
“I will live in spite of you.
You no longer have a say.
My life, my body, my mind, my soul,
You will never again have control.
Whether in this world or in the next,
Justice will have a way.
You hurt me and you almost won
but "You Lost!" I have to say.
A new dawn breaks of hope and peace,
of happiness and grace.
From me, these things YOU CANNOT TAKE.
My head held high, I walk by faith!”
An excerpt from the poem “Returning Faith” by Lynette Gutwein
There is always a light at the end of a tunnel. By ensuring smooth implementation of the provisions, keeping in check the efficaciousness of the act, and amending the laws as per the society’s requirement from time to time, we’ll be able to safeguard the women of our society, provide justice and eventually root out the problems of domestic violence.
REFERENCES
Primary Sources
Statutes
Indian Penal Code, 1860
Protection of Women from Domestic Violence Act, 2005
The Constitution of India, 1950
Cases
Chameli Singh vs. State of Uttar Pradesh [1995] <https://indiankanoon.org/doc/18928039/> accessed 7 June 2021
Francis Coralie Mullin vs. Union Territory of India [1981] <https://indiankanoon.org/doc/78536/> accessed 7 June 2021
Secondary Sources
Journal Articles
Abeyratne R., Jain D., 21 (2) Domestic Violence Legislation In India: The Pitfalls Of A Human Rights Approach To Gender Equality <https://digitalcommons.wcl.american.edu/cgi/viewcontent.cgi?article=1596&context=jgspl/> accessed 20 May 2021
Ghosh B., Choudhuri T., New Protection Against Domestic Violence In India (2015) 11, Indian Journal of Development Research And Social Action < https://www.researchgate.net/publication/276267862_'New_Protection_against_Domestic_Violence_in_India'> accessed 26 May 2021
Hornbeck A., Johnson B., LaGrotta M., Sellman K., 4 (2) The Protection Of Women From Domestic Violence Act: Solution Or Mere Paper Tiger <https://core.ac.uk/download/pdf/268428985.pdf> accessed 2 June 2021
Krishnakumar A., Verma S., Understanding Domestic Violence In India During Covid 19: A routine Approach (2021) Asian Journal of Criminology <https://link.springer.com/content/pdf/10.1007/s11417-020-09340-1.pdf/> accessed 17 May 2021
Nathan L A., Kannappan A., 120 (5) A Comparative Study Of Domestic Violence Act In India And The USA <https://acadpubl.eu/hub/2018-120-5/3/252.pdf/> accessed 5 June 2021
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Electronic links
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Bhandare N., ‘In Parts of India, More Than 25% Women Still Face Domestic Violence’ (IndiaSpend, 15 December 2020) <https://www.indiaspend.com/women-2/in-parts-of-india-more-than-25-women-still-face-domestic-violence-702141/> accessed 6 June 2021
Bharatiya Stree Shakti, ‘Tackling Violence Against Women: A Study Of State Intervention Measures’ (Ministry of Women and Child Development, March 2017) <https://wcd.nic.in/sites/default/files/Final%20Draft%20report%20BSS_0.pdf/> accessed 5 June 2021
Chatterjee D., ‘Laws Relating To Domestic Violence In India: Issues And Challenges’ (Legal Bites, 2 December 2018) <https://www.legalbites.in/laws-relating-domestic-violence-india-legal-issues-challenges/> accessed 1 June 2021
Graham-Harrison E., Giuffrida A., Smith H., Ford L., ‘Lockdown Around The World Bring Rise In Domestic Violence’ (The Guardian, 28 March 2020) <https://www.theguardian.com/society/2020/mar/28/lockdowns-world-rise-domestic-violence/> accessed 20 May 2021
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‘Unemployment Rate Rises As Covid 19 Returns To Haunt Indian Economy’ (India Today, 12 April 2021) <https://www.indiatoday.in/business/story/unemployment-rate-rises-as-covid-19-returns-to-haunt-indian-economy-1790143-2021-04-12/> accessed 18 May 2021