Two Low Visibilities And The Closed Door Character

Published Date: 02 Nov 2017

"Fight for gender equality is not a fight against men. It is a fight against traditions that have chained them-a fight against attitudes that are ingrained in the society-it is a fight against system-a fight against proverbial Lakshman Rekha which is different for men and different for women. The society must rise to the occasion it must recognize and accept the fact that men and women are equal partners in life. They are individuals who have their own identity."

--Dr.Justice A.S.Anand

The entire discussion on the problem of domestic violence as contained in this work centers round the fact that while the problem is as old as is the institution of family, the perception of its problematic aspects is relativey recent. The worst forms of verbal, physical, psychological and sexual violence are committed against women in their homes. Denial of food, insistence on perverse sexual conduct, turning a woman of house or confining her in the house and denying access to minor children constitutes mental torture. While other forms of torture are repeated physical violence or threats to that effect, taunting the woman about her family, her infertility or her giving birth to female infants only, voicing suspicious about her infidelity, denying paternity of the children especially in front of the relatives, drunken behavior of the husband assaulting children to cause mental anguish to the mother.

Two low visibilities and the closed door character of the problem have hindered scientific investigations. The amount of hard (reliable) information on the magnitude of the problem is so insufficient that lot many questions remain unanswered. The difficulties arise because victims of domestic violence are a diffused lot and generally reluctant of complain about their victimization due to acceptance of superiority of the offender and due to their religious belief, social attitude and cultural norms. Their inability to cry out and complain about their oppression and abuse is also due to their weak structural position arrising out of gender and age old disabilities. The oppression and abuse oozes out of the closed confines of the family only when something unusual or dramatic happens, or when the incident gets reported to the police or it gets publicized in the print media. Being treated as a private affair (by and large) the informal measures are preferred over formal ones. Most people including criminal justice functionaries. Do not want legal intervention too often. The general belief is that law should not be a to settle the private wrongs of the people. The most preferred response is the settlement of the problem within the informal structures, namely the family and its immediate references groups.

The criminal justice machinery, in the main the police and the judiciary, quite often acts slowly, inappropriately and ineffectively because of its own limitations. Judiciary has shown both positive and negative response towards violence against women.Courts have not only shown patriarchal and class biasness but aiso concern against discrimination and for the rights of women. It is also true that in some cases, judges have not displayed sensitiveness and sense of responsibility while dealing with cases of violence against women. This gender biasness is not only reflected at the lower level of judiciary but also in some of High Courts and sadly even in Supreme Court. In situations of domestic violence, courts have been more in favour of compromise and adjustment of the parties. It lays more emphasis on saving the family institutions rather than saving interests of the aggrieve women. The police tend to treat violenee against women as "family affair" and are often reluctant to register the case itself. Besides this the tendency is to link day-to-day cruelty and humiliation either to dowry and property-related matters or divorce and legal separations. The magnitude of the probem is so large that police simply do lot, at present, have the capacity to address the issue. Secondly and perhaps more importantly, they do not have the attitudinal basis for effective intervention.

Besides the law courts, the police, the social service agencies, counseling cells and reconciliation agencies, now there are other quasi state actors such as the Human Rights Commission and specialist units such as the crimes against deals and the family courts. At least, two of these agencies, could work effectively to bring about a coordinated response to violence against women. These are the National Commission for Women (NCW) and the Human commission in the states and at the center. These agencies are at the heart of probation and protection of rights. But they remain under utilized both by NGO roles also limit themselves through their understanding of their own role problem of women in term of right. While the NCW concerns itself with the women, they do not do this for the most part within the rights discourse. This is its improvement of women’s condition rather than defenders of women’s and arbiters of accountability of the state for neglecting to protect these rights. Other hand, the NHRC does use its authority and operationally its own mandate the discourse of rights but does not view the degree and scope of violence against women as a grass violation of the human rights of a class dispensable as a of the dereliction of duty to provide security of person, but this is what crime against women is-a gross and continous human rights violation. The lake of women as commissioners throughout the history of the NHRC and bias of gender parity at all levels in the composition of NHRC. Must certainly be a factor to the very limited attention women’s human rights issues have been at the commission? This of course reflects the situation in the states question where the discrimination is perhaps more acute.

Notwithstanding the documentation of violence and its effect in diminishing realization of human rights of citizens, the NHRC has not given it central time. The womens commissions and the human rights commissions often, seem lockest other or compartmentalize themselves because of the way in which are looking at women’s issues.

Single institutions working at women's arenas cannot hope to address such a prex and pervasive a problem as violence against women.

Thus negative socio-cultural norms and stereotypes in the Indian society directly and deliberately legalized by statutory law facilitate the non-enjoyment of the rights to human dignity by women and children within the confines of marriage. The fall out is a prevalence of inequalities and violence in our homes, made worse by the absence of a comprehensive legislative framework for its control and regulation. Such homes filled with inequalities and violence foretells danger for the larger society? Which in turn becomes discriminatory, brutish and unjust? We must know that a legal system that tolerates and even permits such a high degree of domestic violence represents a hidden obstacle to economic and social development. By sapping women’s energy undermining their confidence and compromising their health, gender violence deprives society of women's full participation in nation building. As the United Nations funds for women (UNIFEM) observed.

"Women cannot lend their Labour or creative ideals fully if they are burdened with physical and psychological scars of abuse."

The fear that surrounds women’s lives prevents their free access to jobs and earning. It also curtails their movement, limits their right to associate in real terms, curbs free speech and the right to dissent and overall reduces opportunities to partake in development or to gain equally from progress that is made. All this ensures her subordinated status as much as it derives the nation of half the population’s potential to fuel the engine of economic growth.

In the west, due to women’s rights activists C1nd human rights groups, domestic violence is no longer hidden from society. In India, however, as the social and cultural structures differ from those in the west, issues like domestic violence, marital rape, child abuse and same-sex relationships have remained taboo subjects.

In India, there is a high level of tolerance-in fact there is widespread acceptance or violence against women. We are very familiar with social responses to violence against women. Families treat it as private affair. They feel, it is more shameful for woman to complain of the violence she may be undergoing than for a man to strike a woman. Beating a woman is taken as mere machismo and frequently justified in a thousand ways.

Women are required to adjust and accommodate and to create a world for herself that will either tolerate or mitigate the violence. However, years of national and intemational publicity given to different forms of violence suffered by women globally and, in India have begun to impact. Women are speaking out and families are more willing to address the issue both in the private and in public. This is driving the state to be more responsive-even if reluctantly so.

UTILISATION OF EXISTING LAW

Creative interpretation of existing provisions can also be encouraged to protect the victim from fruther abuse.

Section 107 ofthe Code of Criminal Procedure can be used to secure peace bonds from the offender, to prevent and discourage the occurrence of violence.

Articles 14 and 15(3) provide unequivocally that women enjoy the fundamental right to equality and cannot be discriminated against on the basis of their sex alone; however, these fundamental rights are enforceable only against the state. In some other juriscictions, such as South Africa, the non-discrimination

clause has been extended to persons and not-state bodies also. It is constitution of India be extended from its present application against the state alone to the private sphere.

The special protection under Article 15(3) of the Indian constitution should be utilized with almost care, as there were instances where provisions that were intended to help women in actuality worked against them, as the line between differentiation and discrimination is very thin and should be drawn with care.

Principles of international law, if not contrary to principles of domestic law, can be used to strengthen the hands of the judiciary where no law exists or to further establish existing law. Additionally, treaties; even if not specifically incorporated into domestic law, can nevertheless be used by the courts in several ways, including:

As an aid to constitutional or statutory interpretation generally.

for reviewing administrative discretion by a decision maker.

as giving rise to legitimate expectation that the provisions of the treaty will be applied by a decision maker.

as a factor to take into consideration in the development of common law when the same is unclear, and

as a factor to take into account when identifying demands of public policy.

Provisions of international conventions and treaties ratified by India require to be incorporated into the Indian legal system. With respect to domestic violence specifically, the absence of any law on the subject makes it that much easier for the courts to incorporate international principles into the domestic framework since there is no question of conflict between the two. CEDAW, to which India is a party, specifically addresses violence in the ‘private’ sphere. As the court has already read in provisions or CEDAW with respect to sexual harassment at the workplace into Indian law, there is nothing preventing similar reading in with respect to violence within the family.

An overhauling of the existing criminal legal system is required if the victim of domestic violence is to receive any Redressal from the same. At present, the system is oriented towards crime detection and deterrence, and once proceeding are initiated, the victim is nowhere in the picture. However, a shift of this framework is required so as to make the victim and his/her needs focus of the criminal Redressal system.

In Minnesota, USA, a unique experiment was conducted-a no-drop, policy was adopted with respect to offences of domestic violence. What that meant was that after a complaint was lodged by the wife. The state would go through with the prosecution of the same, even if the victim subsequently changed her mind and turned hostile, until a final decision of conviction or acquittal was obtain within a year of adopting this policy, it was noticed that the instances of domestic violence had declined, as the ‘no-drop’ policy served as an effcctive for prospective abusers. A similar policy can be adopted by the state, as even if the prosecution does not result in conviction of the offender, at a clear unequivocal message is sent out to the public that such crimes are serious and will be treated so by the system.

Civil law can also be utilized for Redressal of domestic violence abuse. There are some inherent advantages of the civil system over the criminal: firstly, that under civil law, the victim has complete control over the proceedings whereas in criminal law, after she lodges the FIR, the state takes over, Secondly. civil law is more concerned with the necds of the victim whereas criminal law is concerned solely with punishing the offender, whether or not that is what the victim desires.

The most important aspect of civil law is the law of property. A woman’s status in society is linked to her economic status. Therefore, other than being entitled to a share in her husband’s property, a woman should also be entitled to a share in her parent's property so that she does not enter her matrimonial home as a disadvantages person.Another suggestion is that the power of the parents of the woman to will away their roperty be restricted so that it may not be possible to will away all the property of the family and leave the daughter with nothing.

There is need to emphasize women’s rights as daughters and sisters and not only as wives. Supporting parental homes to return to and rights in coparcener property would go a long way in ensuring and therefore, minimizing domestic violence. Women would be less tolerating of such abuse and their husbands would be more hesitant in subjecting them to the same.

Another area of civil law is tort law. Tort law is probably one of the most underutilized areas of law with respect to the problem of domestic violence. The torts that are directly applicable are:

Assault

Battery

False imprisonment

Nuisance and

The newly emerging torts of harassment

The provision of awarding exemplary, damages to the victim cases of domestic violence may be examined. The above said approach has been laid down in New Zealand and appears to have a detenent effect on prospective abusers, more importantly it provides the victim with a means of supporting herself without depending on the abuser for a paltry monthly maintenance.

7. For better utilization of existing provisions, certain area specific loopholes on in the existing legal framework may be covered up-

The only provision dealing specifically with domestic violence is section 498A, IPC. However, the same is limited in scope as it deals only with harassment of dowry or harassment that would force the woman to commit suicide. The purview of the section should be widened so as to include other forms of as well to recognize other levels of domestic violence.

The procedure should enable settlements during prosecution, enabling the state to withdraw from prosecution if the parties can reach a settlement with the approval of the court should be deemed invalid as otherwise there would be no means of determining whether coercion or other pressures were exerted on the victim to force her to compromise.

The offence under section 498A, Indian Penal Code should be non-bailable so that the perpetrator may not return to the matrimonial home and further abuse the victim in any way. Bail must be granted only on condition such as that the accused will not molest the complainant or dispossess her from the matrimonial home. Further, in no circumstances should anticipatory bail be granted to the offender.

Evidence laws require reconsideration, as offence of domestic violence usually occurs within the four-walls of the matrimonial home, and there are generally no witnesses to crime except for the perpetrators and the victim herself. Therefore, to insist on corroboration and independent witnesses in such cases makes It practically impossible to secure a conviction. The victim’s testimony impossible to secure a conviction. The victim’s testimony should be given due consideration and not rejected on flimsy grounds that are irrelevant to the offence in question.

OTHER MEASURES

In the interest of equality and empowerment of women, it is also necessary that the law should be accompanied by sensitization of the police, the judiciary and the society as a whole. The law, by itself, will not stop the violence, but it would provide the women with a protection mechanism and would signify the official response of the state that violent behavior even within the confines of the ‘home’ will not be excused or tolerated.

Gender justice can not be brought about merely by passing laws. Bare legislative enactment, is like band-aid on a festering wound unless certain structural changes are brought about at the district and state level.

Suggestions for Changes at the Structural Level

Changes at District Level Mechanism

A clear cut administrative machinery should be made available at the district level for monitoring and reviewing the incidence of violence against women. This district level machinery headed by District Magistrate should consist of representatives of police, prosecution machinery, judiciary and the representatives of the prominent individuals of women’s organizations in the Districts. This committee should also review progress of investigation and prosecution. At least one special cell should be created at the district level for ensuring better registration and progress of investigation and monitoring of crimes against women. This special cell should network with community groups and women’s organizations and help to create an atmosphere in which people would feel encouraged to feely report the cases of domestic violence. At present, most, non-reporting of the cases is due to lack of confidence in the enforcement machinery.

The reporting of violence against women from the Thana to the district level and from the district of the state level gets obscured in the overall mass and complexities of the currently prescribed reporting system. Specific formats should be created and implement for reporting system. Specific formats should be created and implemented for reporting on gender-related crimes.

Changes at the State Level Mechanism

A coordinated view should be taken regarding violence against women at the state level. For this specific responsibility should be fixed at the state level about the roles to be played by the state Home Departments, enforcement machineries the prosecution agency, the department dealing with women and child development, voluntary organizations and the elected representative.

For better visibility of data relating to violence against women, an infonnation collection and analysis system is required which can give an overall picture of the trends of such crimes in the state. The creation of such a data base using computerized systems should be an essential part of an integrated infomation system extending from the Thana level to the nationa11evel.

The state Government should create an appropriate receptive environment for better registration and investigation of crimes by giving awards and recognition to sensitive officers. A special entry should be made in their evaluations and those cases should be highlighted in which prompt action has been taken. This can be through media interventions, regular review and taken appraisal of statistics relating to gender-related violence. This should also involve the co-operation of voluntary organizations, public figures, activists and elected representatives; state Governments should also promote and encourage voluntary organizations.

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State commission for women should be constituted in more states to play the role of a watchdog to ensure the registration of offences, their investigations, prosecutions, protection against violation and deprivation of the rights of the women and to ensure implementation of the special laws, state commissions should network effectively with the National commission for women.

Family Courts

The family courts have not been established by most of the state govenunent with a view to promoting conciliation in and securing speedy settlement of family disputes, through the Family Courtss Act was enacted in 1984. States government should identify more locations and should take effective steps to set-up more family courts.

There is urgent need for recruitment of prosecutors and female judges at all levels of judicial hierarchy by making reservation of at least one-third vacancies for women. This will help in changing the attitude of the judiciary towards domestic violence and crimes against women.

In the ramily courts the procedure adopted for examination of offenders and victim and witnesses should be informal. Every fact, though not in issue or relevant otherwise, which explains the behavior of the offender and as well as of the victim, should be taken into consideration. Facts relating to assaulter's history of abuse as a child, stressful situations in the family, status, and frustration in society should be property brought before the court for understanding and checking the phenomenon of domestic violence against women.

Coordination between Police and NGOs

In view of the growing violence against women. The police leadership at the state district levels should take adequate steps to sensitize and motivate their subordinates at the cutting edge level to utilize the services of the women groups at the optimum level. State government should encourage at least one women group in each district for taking up various programmers for the care and protection of victims of violence. The govermment should not interfere in the autonomy and functioning of the NGOs in lieu of their patronage, support and cooperation excepting periodical evaluation of the performance of these organizations by non-official experts who may be appointed by the competent authority.

Our policy makers consider giving legal status to the NGOs not for running homes and corrective institutions for the purpose of juvenile Act, 1986 and immoral Traffic (Prevention) Act, 1956, but also for playing an effective role in the criminal justice system.

Sensitization of Criminal Justice System

The police officers, prosecutors and judges at all lvels of hierarchy need to be exposed to the gender equality education which would enlighten them on existing assumptions. Myths and stereotypes about women and how these can interfere with fair and equitable administration of justice. Judicial system should comprise of both men and women who is sensitized to myths, prejudices, and the complexities of domestic violence. There is an urgent need of training of the personnel involved in the criminal justice system on the nature of violence and dowry offences in pariicular. The participation of the victims, NGOs, lawyers and social activists in such training programmers may help in internalizing the gender based violence by the law enforcement agency and the judiciary and this process may in the long-run help our criminal justice system to be more responsive and sensitive to victims of domestic violence and crimes.

Social Defence

A widespread network of social defence services should be established in a large number of states. Under this family counseling center, protective and corrective homes and shelter homes should be accessible to women in distress at any time of the day or night.

In these institutions there should be a panel of experts consisting of a medical, a psychiatric and a social worker who not only assesses the mental and physical well-being of a battered woman but also go on investing her story and background. These institutions should provide all kinds of assistance legal, financial or psychological. Effective rehabilitative programmers should be chalked out both for corrective institution and shelter homes. Counseling should be provided before the actual commission or the crime so that the family may be saves from breaking up.

The social, structural and prevalent patriarchal ideology is anti-women and it needs to be change at every level. The status quo within the family needs to be questioned and changed. Even further, the status of women in society and equality of sexes in ever sphere of life is essential to bring about changes in the status of women within the family. The situation of all women in public at the general societal level needs to be improved so that some women do not become victims of violence on private at an individual level. Moreover, we need to question anti-woken concept of patriarchy like chastity of women, submission, docility and obedience in marriage, etc. which only serve to keep women bound within the home and close all options for her.

The focus should not be on relief measures only, but on structural changes which will empower women and make them independent and hence less vulnerable to violence. The emphasis should no be on ‘relief and rescue’ but no independence and empowerment.

For this purpose certain remedial actions are required-

There should be a change in the socialization process. Family is the cradle of violence. it is the ‘gender label’ which is attached to child at birth which brings a whole range of social apparatus with is viz. names, clothes, toys, belief, behavior and values. The male and female should be brought up in a similar manner only then the attitude of men will change towards women in future.

Woman is responsible for her won victimization. ‘Learned helplessness’ is found among women. She should change her thinking that ‘women need guardians’ or the concept of "pativratadharm" because such thinking becomes a safety measure for the men. Illitreate and educated women are more or less the same as illiteracy prevails in the rural areas and orthodoxy in the urban. Even is she is beaten on Sunday, she keeps on Monday for the longevity of her husband.

The status of economically independent woman has changed drastically. They face the crisis of ‘role conflict’ there are only a few exceptions where the couple has worked it out between themselves to how they will share the chores at home. In most of the cases the women still manages the household single handily and the man relaxes once he returns home. Household work is accorded very little prestige. A housewife should never perceive herself as a subordinate person as she performs the important role of bringing up the children and providing a well ordered home.

Men are not only one who is violent against women. Women are also violent against women. It is the women (mother-in-law) who starts violence against daughter-in-law. There are different ways of seeing a daughter and daughter-in-law. Attitude on women towards women needs to be changed.

Media which has re-enforced the negative image of the woman can play a crucial role to bring about social take up this issue seriously and educate. Women regarding their legal rights as well as the alternatives that are open to them. Programmers on the changing general societal level attitude towards women. They can also be powerful organs to disseminate programmers and shelter for women in distress.

Women across the globe are facing discrimination. India is also not an exception to it. There are various reasons which are responsible for maltreatment with women, such as patriarchal society, mass illiteracy and societal attitude towards women. Even today most of the women are living within the closed doors of a house. They have less exposure to the activities outside the home. They are unable to reach out from behind the "closed door" of the family. The reporting of violence and other atrocities against women by themselves is so few that most crimes go undetected, being carried out within the four walls of house. Furthermore, even women hesitate to report such crimes due to the perceived stigma associated with one’s victimization, or due to the belief the women has that no purpose may be solved in reporting it, as well as fear of retaliation from the offender, same is the case with incidents of domestic discords. Attitude of people towards such incidents is that these are matters which must not go into publie domain and should be resolved in the family itself. The result is that women are having no option but to suffer these injustices silently. Thus, it is high time for empowerment of women through education, employment opportunities and legal literacy. But these goals cannot be achieved only by enacting laws rather a radical change in the attitude of society towards women is required, then only they will be able to realize their basic human rights. Lastly we would like to quotetion Swami Vivekanand "Country and Nation which do not respect women have never become great nor will ever be in future."

Following are a few suggestions which the researehers would like to put forth for the improvement in the condition of women:

Removing inability of women to reach out from behind the "closed door" of the family

Sensitizing the people through mass media communication, such as Radio, T.V, Newspaper, etc against the maltreatment with fairer (opposite) sex.

The basic reason for subjugation of women in India is lack of education. Hence efforts should be made to educate them.

Need for making women aware oftheir rights.

An integrated and multi-disciplinary approach with social workers, lawyer's psychologists is required.

Active involvement of NGOs in monitoring implementation of different laws.

Strengthening of law enforcelnent machinery so that law can be implemented in letter and spirit.

Ensuring that people are in position to take recourse of laws.

Last but not least is the role religious leader because in a country like India these religious leaders have great influence on the people. They should impart such religious teachings which reduce the rigor of discrimination against women.

The notion of division of civil society into the ‘public sphere’ and the 'private sphere' should also be rejected where matters relating to the family are relegated to the private sphere and hence not appropriate for state intervention through appropriate policies and law.

The media propagates a discriminate and oppressible attitude towards women which should be discouraged. The display of women as ‘sexual objects’ in the advertisement should be banned. All the mass media conveys that women’s position is only in the home and for the home. While men are portrayed as successful professionals. All this legitimize masculine dominance, meanwhile pornography presents a package deal on women as sex objects and the natural possessions of men which further promotes violence against women.