Author: Arya.A.S, IV year of B.A.,LL.B from Sree Narayana Guru College Of Legal Studies, Kollam (Kerala University).
The entire world and our country joined hands to fight against COVID-19.We often neglect the shadow pandemic growing, of violence against women. This article mainly focuses on those violations during this period.
Increased and Unreported Domestic Violence Cases
Phumzile Mlambo-Ngcuka, Executive Director of UN Women, stated on April 6, 2020. “With 90 countries in lockdown, four billion people are now sheltering at home from the global contagion of COVID-19. It’s a protective measure, but it brings another deadly danger. We see a shadow pandemic growing, of violence against women.
Even before COVID-19 existed, domestic violence was already one of the greatest human rights violations. In the previous 12 months, 243 million women and girls (aged 15-49) across the world have been subjected to sexual or physical violence by an intimate partner. As the COVID-19 pandemic continues, this number is likely to grow with multiple impacts on women’s wellbeing, their sexual and reproductive health, their mental health, and their ability to participate and lead in the recovery of our societies and economics. ”
When we come to the Indian Scenario we can see a huge spike in domestic violence cases during the pandemic period. As per the Nature-Wise Report of the Complaints Received by NCW in the year 2019, the complaint received under Protection of Women against Domestic Violence is 2960. But as per the report of 2020, there are total 5297 cases. The surprising fact is that even if a huge spike is there in the complaints received in the year 2020 , the complaints received in the months of lockdown are comparatively less than that of other months. The least reported cases came in the month of March. (298 cases).
The number of cases increased with the relaxation in lockdown. After the lockdown there comes a huge spike in complaints from the month of June to December. This data gives the clear picture that the cases of domestic violence are neither actively reported nor the grievances are redressed during the period of lockdown.
Even if there are three laws (“The Protection of Women from Domestic Violence Act 2005”,“The Dowry Prohibition Act, 1961” and Section “498A of the Indian Penal Code.”) in India which directly deal with domestic violence, the implementation of these laws during this pandemic period is in peril.
S.4 of ‘ The Protection of Women from Domestic Violence Act, 2005’ Provides , “Any person who has reason to believe that an act of domestic violence has been, or is being, or is likely to be committed, may give information about it to the concerned Protection Officer. (2) No liability, civil or criminal, shall be incurred by any person for giving in good faith of information for the purpose of sub-section.
Information from such a person is highly impossible during lock down period. In the present scenario, even the victim herself can’t give information to concerned officer. The immediate action taken by a woman as a defence against the violence is to move to a safer place like her natal family. As there is COVID regulation she can’t take such a step. Most women can’t contact their family as they have no access to phone and internet and also there is high fear of being caught by the attacker. The ‘Whatsapp number’ launched by the NCW also had a limited reach as most of them had no internet access.
S.11. (a) of The Protection of Women from Domestic Violence Act, 2005 “provides that The Central Government and every State Government shall take all measures to ensure that the provisions of this Act are given wide publicity through public media including television, radio and the print media at regular intervals.
Whether this provision of the act gets strictly implemented or not requires rethinking.
Most women are still unaware
(a) of her right to make an application for obtaining a relief by way of a protection order, an order for monetary relief, a custody order, a residence order, a compensation order or more than one such order under this Act;
(b) of the availability of services of service providers;
(c) of the availability of services of the Protection Officers;
(d) of her right to free legal services under the Legal Services Authorities Act, 1987 (39 of 1987);
(e) of her right to file a complaint under section 498A of the Indian Penal Code (45 of 1860).
(S.5 of the ‘The Protection of Women from Domestic Violence Act, 2005).
If the woman is aware of her right to get free legal service, she may not be step back because of her poor economic and financial circumstances. The present circumstance demands a high attention from the Government on this issue.
Child Marriages & Loopholes in Law
Global Girlhood Report 2020, stated
“A dramatic surge in child marriage and adolescent pregnancy is anticipated, with up to an additional 2.5 million girls at risk of child marriage over five years and adolescent pregnancies expected to rise by up to 1 million in 2020, as a result of the economic impacts of the COVID-19 crisis.”
In the Indian scenario also a huge raise in child marriage can be traced out during the pandemic period. The Hindu reported on August 18, 2020. “A sharp rise in child marriages has been reported during the COVID 19 lockdown and the subsequent two months. Parents had taken advantage of lax monitoring during the lockdown when officials of various departments and the police were deployed for COVID-19 duties. Schools and colleges also remained closed to an extended period, making it virtually impossible to monitor the attendance of girls. The parents made use of these changes to secretly marry their under-aged children,”
BBC News also reported on 18 September 2020, “It is illegal for girls under the age of 18 to marry in India. But the country is home to the largest number of child brides in the world, accounting for a third of the global total, according to UNICEF. The charity estimates that at least 1.5 million girls under 18 get married here each year.
This year might be worse. The child line, a children's helpline, has reported a 17% increase in distress calls related to early marriage of girls in June and July this year compared to 2019.
Even if India has ‘Prohibition of Child Marriage Act 2016 to prevent child marriage, there are several loopholes in it. S.3.(1) provides , “Every child marriage, whether solemnised before or after the commencement of this Act, shall be voidable at the option of the contracting party who was a child at the time of the marriage: Provided that a petition for annulling a child marriage by a decree of nullity may be filed in the district court only by a contracting party to the marriage who was a child at the time of the marriage.S.3(2) provides If at the time of filing a petition, the petitioner is a minor, the petition may be filed through his or her guardian or next friend along with the Child Marriage Prohibition Officer.
Here the entire burden to challenge the validity of the marriage lies on children. It is difficult for a child to challenge their own marriage at such a young age. No other laws in India put such a burden on a child.
Even if the child comes forward to challenge the marriage, they can challenge only through their guardian or next friend. The sad reality is that in most cases, the parents themselves prompt children to marry. The present world of pandemic shuts all doors before a child to challenge her marriage.
The Court On Its Own Motion (Lajja ... vs. State on 27 July, 2012)
The Honorable Delhi High court observed, “It is distressing to note that the Indian Penal Code, 1860 acquiesces in child marriage. The exception to Section 375 specifically lays down that sexual intercourse of a man with his own wife, the wife not being under fifteen years of age is not rape, thus ruling out the possibility of marital rape when the age of the wife is above fifteen years. On the other hand, if the girl is not the wife of the man but is below sixteen, then the sexual intercourse even with the consent of the girl amounts to rape? It is rather shocking to note the specific relaxation is given to a husband who rapes his wife when she happens to be between 15-16 years old. This provision in the Indian Penal Code, 1860 is a specific illustration of legislative endorsement and sanction of child marriages. Thus by keeping a lower age of consent for marital intercourse, it seems that the legislature has legitimized the concept of child marriage.
From this observation, it is clear that the exception to Section 375 validate children marriage to an extent. The legislation is not sufficient to curb child marriage even in normal times. Then it is not surprising to notice a threefold increase in this Lock-down period.
In this scenario, it is essential to observe the observation of the Delhi High court in
Association For Social Justice &... vs. Union of India & Others on 13 May, 2010
Court observed,
(i) Girls who get married at an early age are often more susceptible to the health risks associated with early sexual initiation and childbearing, including HIV and obstetric fistula.
(ii) Young girls who lack status, power and maturity are often subjected to domestic violence, sexual abuse and social isolation.
(iii) Early marriage almost always deprives girls of their education or meaningful work, which contributes to persistent poverty.
(iv) Child marriage perpetuates an unrelenting cycle of gender inequality, sickness and poverty.
(v) Getting the girls married at an early age when they are not physically mature leads to the highest rates of maternal and child mortality.
We often neglect crucial social disease of child marriage spreading along with The coronavirus.
Forced Marriage during COVID-19& Falling Dream Wings
As BBC news reported on 18th September 2020, one reason for increased marriages during Lockdown is that parents are expected to pay for big weddings, but COVID restrictions have limited the size of weddings.
In order to reduce expenses, parents forced women to marry during the Lock-down period. Several states in India witnessed a huge spike in the marriage rate during the Lockdown period.
Women are forced to marry because of several circumstances. If a girl is born to a family, her marriage will be considered to be the greatest burden of the family. She often gets emotionally blackmailed by her family members. The health conditions of their parents, financial condition of the family, remaining female siblings and the like family sentiments used as a tool for blackmailing. Even if a woman has a lot of dreams and goals to pursue their future dream and higher education, they are forced to marry for the sake of their family sentiments. In most cases, their education and future dream come to an end with this marriage. Human rights of women are sacrificed before the societal norms and family pressure.
Dowry system
One main reason for considering a woman’s marriage as a burden is the Dowry system. The dowry going in hand in hand with a woman’s marriage is often escaped from the framework of ‘The dowry prohibition Act, 1961’. Section 3 of the Act provides for the penalty for giving or taking dowry. The section provides that Nothing in sub-section (1) shall apply to, or in relation to, — (a) presents which are given at the time of a marriage to the bride (without any demand having been made in that behalf): Provided that such presents are entered in a list maintained in accordance with the rules made under this Act; (b) presents which are given at the time of a marriage to the bridegroom (without any demand having been made in that behalf):
The presents or gifts given are excluded from the punishment. How can we distinguish between dowry and gift? It is quite impossible to find out the presents which are given with demand and without demand. This section is too vague to identify the dowry.
S.6 of the Act states (1) Where any dowry is received by any person other than the woman in connection with whose marriage it is given, that person shall transfer it to the woman— (a) if the dowry was received before marriage, within 3 [three months] after the date of marriage; or (b) if the dowry was received at the time of or after the marriage, within 3 [three months] after the date of its receipt; or (c) if the dowry was received when the woman was a minor, within 3 [three months] after she has attained the age of eighteen years; and pending such transfer, shall hold it in trust for the benefit of the woman.
The preamble of the Act itself states that An Act to prohibit the giving or take of dowry. But when we come to S.6 of the Act, the Act itself takes a legalizing approach to Dowry. The married women often suffer dowry tortures as a broken marriage is viewed as a disgrace both to the woman's family and to her own honor.
In addition to dowry, the increased marriage expenses often shake the financial foundation of a normal family. The marriage expenses can be reduced to an extent due to the lockdown and COVID regulations, and it often prompts the family to force women to marry.
In this scenario, we want to think about the laws preventing forced marriage in India.
Even if marriage is not recognized as a fundamental right directly in the Indian constitution, through various judicial decisions of the Supreme Court, the right to marriage is considered a fundamental right.
In ‘In Re: Indian Woman Says Gang-raped on orders of Village Court', published in Business & Financial News dated 23.01.2014
Honorable Supreme Court observed “The State is duty bound to protect the Fundamental Rights of its citizens; and an inherent aspect of Article 21 of the Constitution would be the freedom of choice in marriage.
Recently in ‘Shafin Jahan Versus Asokan K.M. & Ors.’
Honorable Supreme Court observed
“The right to marry a person of one’s choice is integral to Article 21 of the Constitution. The Constitution guarantees the right to life. This right cannot be taken away except through a law which is substantively and procedurally fair, just and reasonable. Intrinsic to the liberty which the Constitution guarantees as a fundamental right is the ability of each individual to take decisions on matters central to the pursuit of happiness. Matters of belief and faith, including whether to believe are at the core of constitutional liberty.
The Constitution exists for believers as well as for agnostics. The Constitution protects the ability of each individual to pursue a way of life or faith to which she or he seeks to adhere. Matters of dress and of food, of ideas and ideologies, of love and partnership are within the central aspects of identity. The law may regulate (subject to constitutional compliance) the conditions of a valid marriage, as it may regulate the situations in which a marital tie can be ended or annulled. These remedies are available to parties to a marriage for it is they who decide best on whether they should accept each other into a marital tie or continue in that relationship. Society has no role to play in determining our choice of partners.” We can trace out various similar Supreme Court and High court decisions that affirm right to choose a partner as a fundamental right. In present scenario most girls are forced to marry by their family and so called “culture rooted society”.
This condition of forced marriage even violates Right to privacy which is well accepted as a fundamental right through Justice KS Puttaswamy (retd) and another v. Union of India and others.
Court observed in India context three things come under privacy .One important point among them is ‘The privacy of choice, which protects an individual’s autonomy over fundamental personal choices.’
Here the family and society choose even a women didn’t want to marry and to continue her studies Article 16 of the Universal Declaration of Human Rights, states Marriage shall be entered into only with the free and full consent of the intending spouses.
Marriages happening during these Lockdown period violates all these rights to a larger extent.
Legally, marriage is a binding contract between the two parties that joins together their possessions, income, and lives.S.10 of the Indian contract Act defines ,’ All agreements are contracts if they are made by the free consent of parties competent to contract, for a lawful consideration and with a lawful object, and are not hereby expressly declared to be void."
The first and important element for validating a contract is free consent. In case of Forced marriage there is no free consent. The consent is not freed from coercion or undue influence. Hence forced marriage also violates s.15 of the Contract Act.
Article 23 of the ‘International Covenant on Civil and Political Rights 1966’.states No marriage shall be entered into without the free and full consent of the intending spouses.
Even if we can trace out some laws like this, the sad reality is that there is no strong penal law to criminalise forced marriages in India. This is the main reason for increasing forced marriages in India and takes an upper seat during this pandemic period.
This pandemic and lockdown had put dangerous shadow on women’s right. These strong human rights violation remains unaddressed during this pandemic period and it may cause irreparable damaged to human entity.