Author: Suchita Garg, I year of LL.M. from Sabarmati University
Abstract
Women and girls in South Asia are born into a societal and traditional system steeped in inequity and discrimination. They are given an unfair share of opportunities, attention and resources from the instant of their formation. One of the most challenging and threatening signs of gender based inequity is violence against women and girls.
It is being gradually recognised by policy makers in India that violence against women and girls is a serious restraint to the success of the country’s development goals. This fear has prompted legal reforms, new legislation, beefing up of institutional mechanisms for the advancement of women and instituting policies that seek to address women’s vulnerability in various regions.
Violence against women and girls is embedded in unequal power relations between men and women in society and can be well understood within a gender framework. While sex is a biological category, gender is a social construct and refers to widely shared expectations and norms within society about appropriate male and female behaviour, characteristics and roles.
In South Asia, violence against women and girls has been viewed along a continuum of incremental discrimination that renders them vulnerable to violations in several spheres of their lives. Gender based inequality exists in all stages of women’s lives- from infancy to old age and manifests in the form of several acts of violence.
Introduction
Violence within the family is widespread and affects women throughout the society in wealthy urban households as much as in the poorest rural households, across all the religious, class and caste boundaries. Domestic violence refers to any act of violence in the house- it includes differential treatment of girls, wife beating and abuse, torture of daughters-in-laws and lack of care of widowed women in the family. The perpetrators are close relatives of the woman-father, husband and his family, sometimes even the son. Domestic violence is part of abusive behaviour and control rather than an isolated act of physical anger. Physical violence in intimate relationship is practically always accompanied by psychological abuse and, in one- third to over one-half of cases, by sexual abuse.
Violence within marriage in India is often linked with the practice of dowry although it is by no means the only cause of violence. Dowry demands can increase into harassment, threats, and abuse; in extreme cases the woman is killed or driven to suicide, releasing the husband to pursue another marriage and dowry.
Domestic violence is also denoted to as a ‘silent crime’ because of woman’s inability to speak about the violence inflicted on them due to shame, fear of further abuse on themselves or their children and lack of options. Thus domestic violence is frequently ignored, underestimated or denied by the family, judicial system (police, prosecutors and by judges), public and women(victims).
In South Asia, India has some of the most extensive acts and a large legal machinery to protect the rights of women. The government of India (GOI) has adopted a number of approaches to address countless dimensions of violence against women. There has been a clear shift from viewing women as beneficiaries of improvement, to equal partners in the development process. The government has been forthcoming in implementing legal reforms and designing programmes aimed at the empowerment of women. However, the implementation of the same is embedded in notions of the family.
Laws related to domestic violence
Domestic violence as a criminal act was known only in 1986 in India after strong advocacy by the women’s movement. The laws that deal with domestic violence are:
Section 498A of the Indian Penal Code addresses physical and mental cruelty committed by the husband and his relatives. It is a cognisable, non- bailable offence and has been lauded for its deterrent effect. Cruelty is defined to include any conduct that drives married women to commit suicide or cause grave danger or injury to her life, limb of health, whether mental or physical. It is also includes harassment of the women to coerce her or her relatives to meet unlawful demands for property or other valuables.
Section 304B, IPC (1961) was introduced in order to strictly deal with and punish the offence of dowry harassment and death.
The Dowry Prohibition Act was amended in 1984 and later in 1986, whereby any property, article, gifts etc. given by the girl parents before, at the time, or after marriage was defined as dowry. The punishment for dowry was increased and it was made a cognisable and non- bailable offence. The burden of proof shifted on the accused and made police investigation obligatory with respect to the unnatural death of women.
Section 174 of the Criminal Procedure Code was revised by the Criminal Law Act, 1983 to provide for investigation by the police of cases of suicide committed by women or death of women taking place in suspicious circumstances within 7 years of marriage.
Section 113 and 133B were inserted in the Indian Evidence Act,1872 these provisions lay down that if a woman who commits suicide within 7 years of her marriage due to ‘Cruelty’ by her husband or his relatives, the court may presume that suicide had been abetted by her husband or by his relatives.
Sexual Violence
Sexual violence is a violence of the basic human right “to live with dignity and without fear” there are many forms of violence: eve teasing, molestation, rape- within or outside marriage, child sexual abuse and sexual harassment in the work place. Sexual violence against women and young girls can happen anywhere- on the streets, at home, in public or private places- by strangers or by members of the family. Sexual violence, either a one- time assault or protracted abuse, damages concepts of sexual intimacy, trust and a sense of the overall well-being of women.
Sexual assault includes all forms of non-consensual contact with a sexual purpose ranging from eve teasing to molestation to rape. It also include touching or fondling and all forms of penetration. The study also indicates that most sexual assaults cases occur at home and the largest percentage of these occur at the victim’s home during the daytime. A study of judgments by the Supreme and High courts on rape cases in India Between 1950-1990 revealed that 54% of the rape cases researched took place between 6 AM and 7 PM.
Marital rape, though not widely accepted as crime by communities and law in India, is also experienced by a number of women within the four walls of the home.
Another common form of sexual violence against woman is Sexual Harassment in the Workplace. In the words of the Supreme Court of India, sexual harassment constitutes a serious violation of women’s fundamental rights to freedom and equality at the workplace. In 1997, the SC issued guidelines against sexual harassment for both the public and the private sector. Sexual harassment, as defined by the Supreme Court order, is any unwelcome physical contact and advances, demand or request for sexual favours, sexually coloured remarks, display of pornography and any other kind ofunwelcome physical, verbal or non-verbal conduct of a sexual nature.
Child sexual abuse, like other forms of violence against women, can happen to any child, anywhere often through adults known to the child. It is a common phenomenon. Child Sexual Abuse refers to any sexual act that occurs between an adult or an immediate family member and a child, and any non-consensual sexual contact between a child and a peer.
Conclusion
In India, violence against women is still seen at the individual level. The fact that Indian women are dependent on men at all levels and not only/necessarily financially makes them especially vulnerable to violence whether domestic or sexual. However the general tendency, particularly by the police and the judiciary is to treat such cases on their individual merit rather than emphasize this power imbalance. This would require not just legislative changes but changing the ground reality where women are actually empowered and not endowed with mere paper rights.
In India, the legal provisions have been tentative. At the point of initiation, they inevitably contain some wide loopholes which allow men to escape scot-free and between the accused/offender and the victim/prosecutrix make it more difficult for the latter to prove her case. Ironically, as and whenever the violence suffered by women reaches serious proportions, and more importantly , leads to public outrage, the state typically responds by modifying the existing penal provisions and adding more stringent provisions. The ‘stringent provisions ‘ often remain on paper with a marked reluctance shown by the police to register cases and the judiciary giving the tacit impression that women are misusing the laws made for their protection. The legal codes have not been effective in protecting women. Nor has it succeeded in ensuring justice for the victims by way of retribution. Whether it is at birth, during lifetime or eventual death, the laws appear to be strong enough to act as deterrents but reality speaks a different story.
The Indian state formulates some principles to deal with gender-violence, takes scant interest in implementing them, thereby allowing rate of violence to grow. When such violence grows out of proportion, making the people seethe in anger it spells danger for the state. Then the governmental machinery responds typically with setting up of specialist agencies and framing new and ‘stricter laws’ which continue to remain on paper.
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