Violence against women continues to be a global epidemic, with estimates showing that 1 in3 women worldwide have experienced either physical and/or sexual intimate partner violenceor non-partner sexual violence in their lifetime. 1 As one of the most pervasive forms ofviolence, it encompasses a broad range of acts, including domestic violence. Domesticviolence is violence that is perpetrated by a partner or family member and can take variousforms such as physical, emotional, psychological, sexual or economic abuse or threat ofabuse, coercion, etc.2 It is a universal phenomenon, cutting across the boundaries of culture,religion, region and class. The prerequisite for any discussion on domestic violence isunderstanding the basic concepts of gender and gender-based violence. 'Gender' refers to thesocially constructed characteristics of men and women with regard to norms, roles,expectations and relationships of and between groups of men and women.3 'Gender-basedviolence' (herein after referred to as GBV) refers to violence that occurs as a result ofnormative role expectations and unequal power relationships between males and females,within the specific societal context. 4 The gender specificity of the victims and perpetrators,majority of whom are women and men respectively, is the basic ground on which domesticviolence has predominantly been considered a gender-based crime. However, severalcountries, including India, have started moving towards gender-neutrality in their domesticviolence laws, which could lead to disastrous consequences for women, if not done at theappropriate time or social context.
This paper seeks to analyse the role of gender in domestic violence in India in light of thedebate over gender neutrality in the Protection of Women from Domestic Violence Act, 2005(herein after referred to as PWDVA) and to examine why such a move is not suitable in thecurrent socio-political context.
1 UN World Health Organisation, Global and regional estimates of violence against women: prevalence and health burden of intimate partner violence and non-partner sexual violence, 2013
4 Shelah S.Bloom, Violence Against Women and Girls : A Compendium of Monitoring and Evaluation Indicators, Carolina Population Centre, MEASURE Evaluation, Chapel Hill, North Carolina (2008), p.14.
Legacy of the PWDVA
Prior to the PWDVA, the primary law protecting women from familial abuse was Section498A of the Indian Penal Code (IPC). It allows women to file criminal complaints againsttheir husbands and husband's relatives for any 'cruelty' suffered at their hands. However, itonly includes marital relationships and fails to provide women with any civil remedies suchas injunctions, protective orders, etc. It was in view of these shortcomings that the need for aseparate, more comprehensive law for protecting women from domestic violence arose. TheLawyer's Collective began drafting a bill in 1993, and it was in 2005 that the Protection ofWomen from Domestic Violence Act (PWDVA) was passed. It provides female victims ofdomestic violence civil and criminal legal recourse. It included physical, sexual, verbal andemotional and economic abuse in the definition of domestic violence.5
One of the key features of the Act was that its intent was gender specific. It aimed to providemaintenance, shelter, or interim finances to the 'aggrieved person'6 , which refers to anywoman who has been subjected to domestic violence by the 'respondent', which originallyreferred to an adult male person.7
However, the Supreme Court changed the formative ground of the Act in a landmarkjudgement in October 2016. In Harsora v. Harsora8, a bench of Justices Kurien Joseph andR.F. Nariman ordered the striking down of the words 'adult male' from Section 2(q) of theAct, thereby widening the prosecutorial scope to women and non-adults for abuse of femalerelatives. In its judgement, the Court held that the restriction of the respondent to adult maleswas unconstitutional and contrary to the objective of the Act, which was to provide'protection to women from domestic violence by any person, male or female'. 9 It also arguedthat domestic violence as defined in Section 3 of the Act was gender neutral.
5 Section 3a, PWDVA,2005
6 Ibid., Section 2a
7 Ibid., Section 2q
8 Hiral P. Harsora v Kusum Narottamdas Harsora (2016) 10 SCC 165
Case against a gender neutral PWDVA
This judgement has been criticised by feminists, lawyers and activists working againstdomestic violence on grounds of its possible negative repercussions and the contention thatdomestic violence is a gender-based crime.
One major concern shared by lawyers and activists, such as Rebecca John, senior advocate atDelhi High Court and Audrey D'Mello, Program Director at Majlis is that women filingcomplaints against their husbands for domestic violence will be faced by counter-cases bytheir female in-laws, often contrived by the men in the family. 10 The fear is that thisjudgement would defeat the object of the Act, which was to protect women from domesticviolence at the hands of men, and lead to further dilution and ineffectiveness of the Act.
The main argument propounded against moving towards a gender-neutral PWDVA is thatcontrary to what the Court believes, domestic violence is not gender neutral. Organisationsacross the world, including the United Nations, regard domestic violence as a form of gender-based violence. In 1992, the CEDAW Committee, the body responsible for monitoring theimplementation of UN Convention on the Elimination of All Forms of Discrimination againstWomen, officially recognised that GBV is not a random occurrence, but a cause andconsequence of gender inequality and hence a form of discrimination. It defined GBV as"violence that is directed against a woman because she is a woman or that affects womendisproportionately" and encompassed domestic violence in its definition. 11
Various theories explain the causes of GBV and domestic violence. The most prominent ofthese is the 'feminist or the gender' theory, which holds patriarchy as the root cause of GBV.It argues that domestic violence is rooted in gender and represents men's attempts to exertcontrol and dominance over women, and assert and construct their masculinity.12 Anothertheory is the 'ecological' theory which takes into account social and cultural roles andattitudes. It argues that society is organised into a hierarchical structure on the basis ofgender, which places men in an advantageous position in terms of political, social and economic power.13 This differential social status of men and women perpetuates entrenchedinequalities. Overall, its cause seems to be an interplay of institutionalised social, cultural,economic, legal and political factors such as gender-specific socialisation, limited politicalrepresentation of women, practices such as 'dowry', notion that the family belongs to the'private sphere', economic dependence on men, discriminatory inheritance and maintenancelaws, need to control women's sexuality, linking sexuality with family honour, perception ofmale 'ownership' of women, acceptance of family violence as a way of solving disputes ordisciplining women, etc. 14
11 UN Committee on the Elimination of Discrimination Against Women (CEDAW), CEDAW General Recommendation No. 19: Violence against women, 1992, available at :http://www.refworld.org/docid/52d920c54 .html [accessed 10 June 2017]
12 Anderson, Kristin L. "Gender, Status, and Domestic Violence: An Integration of Feminist and Family Violence Approaches." Journal of Marriage and Family 59, no. 3 (1997): 655-69.
Hence, domestic violence primarily targets women and adolescent girls. Men may alsoexperience domestic violence but not only are women at a higher risk, but they also sufferexacerbated consequences of domestic violence as compared to men.15 This is corroboratedby statistical evidence which shows 35 per cent of women have experienced physical and/orsexual violence by an intimate partner; and 2 in 3 victims of intimate partner/ family relatedhomicide are women. 16
Shifting focus to the Indian socio-cultural context, the extent of violence against women haslong been a serious cause of concern. According to the National Crime Records Bureaureport (2015), the number of crimes against women reported was 3, 27,394, which constituted11.1% of total crimes reported under IPC. Out of these, majority of the cases (34.6%) werereported under 'Cruelty by Husband or His Relatives'. It also revealed an 8.2 percentageincrease in the cases reported under the PWDVA from 2014 to 2015. 17 It is important to keepin mind the extent of under-reporting of domestic violence cases in India.
The ecological model of GBV can be used to explain the pervasiveness and prevalence ofdomestic violence in India, where patriarchal norms are deeply entrenched into theinstitutions, norms, beliefs and practices of society. The continuing practice of femalefoeticide and infanticide, the lower life expectancy, literacy rates and less access to healthcareand employment opportunities of women18, differential gender roles and expectations, all contribute to the inequality between men and women in Indian society. The interplay of thehistorical oppression and thereby subordinate status of women in India, along with socio-cultural norms rooted in notions of patriarchy and masculinity is the major causal factor ofdomestic violence in India. Various studies have revealed that "men raised in patriarchalfamily structure that encourages traditional gender role are more likely to abuse their intimatepartners." 19
13 Heise, L.Violence against women, an integrated, ecological framework. Violence Against Women, 4(4), (1998): 2622-2690 14 UNICEF, Domestic Violence against Women and Girls, Innocenti Digest no.6, (2000)
15 UNFPA Strategy and Framework for Action to Addressing GBV, 2008-2011, p. 7
17 Crime in India 2015 compendium, National Crime Records Bureau,(2015) [available at http://ncrb.nic.in/StatPublications/]
18 Vyas, Pami. "Reconceptualizing Domestic Violence in India: Economic Abuse and the Need for Broad Statutory Interpretation to Promote Women's Fundamental Rights." Michigan Journal of Gender & Law 13.14
Further, not only are the victims of domestic violence mainly women, but the majority ofperpetrators are men as well. A study by Sahoo and Pradhan20 based on a sample of 90,303ever-married women in the age group 15-49 years, revealed that 21% of the women havebeen beaten or mistreated since the age of 15. 18.8% of this violence was perpetrated by theirhusbands, while only 1.8% and 3.1% by their in-laws and others, respectively. Thepatriarchal norms also lead to justification and acceptance of domestic violence by society,which further make women and girls more vulnerable to domestic violence. For instance,research by various organisations has shown that while six out of ten Indian men admit tohave perpetrated domestic violence, a shocking 70% of married women justify GBV. 21 Thisrationalisation of violence trickles down to children as well. UNICEF's "Global Report Cardon Adolescents 2012" showed that 57% and 53% of adolescent boys and girls in Indiarespectively believe that it is justified for a husband to beat his wife. 22
It was in this backdrop of the clear gendered nature of domestic violence in India that section498A, IPC was restricted to husband and husband's relatives. On the same ground, the'respondent' in Section 2(q) of PWDVA was restricted to adult males. The Supreme Court's decision of removing the words 'adult male' fails to take into cognizance the social realitiesof women in India and hence fails to contextualise the law. By doing so, it dilutes the originalpurpose of the law, which was to provide legal protection to women as they are socially disempowered and more vulnerable to domestic violence. The Court's rationale seems to beon the thrust of equality, however equality here is interpreted in a very narrow, formal sense.
19 Harihar Sahoo and Manas Ranjan Pradhan,Domestic Violence in India : An empirical analysis (2007)
21UNFPA, ICRW, Masculinity, intimate partner violence and son preference in India;Data from National Family Health Survey (NFHS) Round 3, 2005-06 22http://timesofindia.indiatimes.com/india/57-of-boys-53-of-girls-think-wife-beating-is-justified/articleshow/12862006.cms?referral=PM>
Applying the notion of formal equality in situations that are unequal only reproduces andreinforces these inequalities by not acknowledging differences in circumstances ofindividuals, and hence disregarding the need for separate provisions to account for thesedifferences.
A counter narrative: female perpetrators and male victims of domestic violence
The Supreme Court's rationale behind the judgement was that gender-specificity of the Actwas 'unconstitutional' as it was ultra vires of Article 14 of the constitution. However, as theDelhi High Court ruled in Aruna Parmod Shah v. UOI 23, Art 14 does not prohibit"classification for the purposes of legislation". Also, Article 15(3) of the Constitution allowsfor special provisions for women and children, and hence the gender-based nature of thePWDVA was not ultra vires of the constitutional provisions.
Supporters of the judgement argue that it enables female in-laws to seek legal remedies incase of domestic abuse perpetrated by the women in the household. While it is true thatwomen may be the perpetrators of violence in some cases, many have countered thisargument by arguing that such cases need to be handled on an individual basis. Also, existingcivil and criminal laws do provide scope for remedies for abuse perpetrated by daughters-inlaws. These include the Maintenance and Welfare of Parents and Senior Citizen's Act 2007and the Hindu Adoption and Maintenance Act 1956.
Men's rights activists have criticised the gender-specificity of the PWDVA ever since it's passing on the grounds of false complaints and the claim that men too are victims of domesticviolence. The false complaints narrative, which recasts the main perpetrators of domesticviolence as victims, is weakened by the fact that there is no reliable data or statistics tosupport the claim. This is not to say that men cannot be victims of domestic violence. Whileit is true that men may face domestic abuse, it cannot be argued that the proportion is equal oreven near to that faced by women. Additional provisions regarding false complaints in theAct, and separate, innovative laws need to be made to protect male victims of domesticviolence which do not dilute the original intent or the effectiveness of the PWDVA, ameasure created to specifically protect women from domestic violence faced at the hands onmen.
23 Aruna Parmod Shah vs Union Of India (Uoi) Crl. M.As. 4172-73/2008
In order for a law to be effective, it must be grounded in the social realities of those whoselives it seeks to improve. The Supreme Court's judgement fails to do so as it ignores the livedrealities of Indian women and the nature of domestic violence.
The traditional familial structures, which are patriarchal in nature, consist of an imbalance inpower structures which places men in an advantageous position over women. This powerimbalance is manifested in a variety of ways, the most pernicious of which is domesticviolence. Most of the factors responsible for causing, influencing and perpetuating domesticviolence are interconnected and stem from the gender inequality and discrimination, therebymaking women more vulnerable to such violence. Adding to the greater vulnerability ofwomen is the greater severity and consequences of violence that women face. By claimingthat domestic violence is gender neutral, the Supreme Court overlooks the overwhelmingevidence, both qualitative and quantitative, that proves domestic violence is a cause and aconsequence of gender inequality. Domestic violence cannot be separated from socialperceptions, roles and expectations of gender. It is a gender-based crime and hence itsresponse needs to be gender-based as well.
However, despite the existence of provisions such as the PWDVA, violence against womenin the family continues to be epidemical in India. A study by Sujata Gadkar-Wilcox24 outlinedthree reasons for this. These were the unwillingness of the local police to implement thePWDVA, the perceived norms and roles of women in the family and economicdisempowerment of women. Other factors contributing to the lack of proper implementationinclude lack of adequate funds, staff, sensitisation of Protection Offers (POs) and otherstakeholders, and overburdening of POs due to inadequate personnel. The enormous backlogof the judiciary inhibits it from dispensing timely justice to the victims. These are just someof the many impediments to the implementation of the PWDVA.25
In order to overcome these obstacles, several steps need to be taken at both the individual andcommunity level. The first step towards combatting domestic violence is recognizing that such violence is not aberrant, but part of culture that accepts, normalizes and henceperpetuates such violence against women. Government agencies and civil society need toplay an active role in changing this culture as well as societal attitudes towards women. Thisinvolves gender sensitisation, and information dissemination about basic human rights, legalrecourses available to women, ideas of consent and autonomy at the grass root level, startingfrom educational institutions. Media representation of women and violence against womenneeds to be changed as the media plays a pivotal role in constructing, influencing andreaffirming social behaviour and norms. Society must be open to discussions about issues likedowry, unwanted pregnancies, abortion, and women working outside the home in order todevelop organic solutions for the violence arising due to these. A change in the societal mind-set regarding divorce and acceptance of women leaving abusive relationships is essential, aslack of the same is a major reason why women are forced to stay in such relationships. Therealso needs to be a reconceptualization of the notions of privacy of the family, which lead tothe unwillingness of society and police to intervene in cases of domestic violence.
Effective implementation of the PWDVA requires not only convergence among all thestakeholders involved, but proactive measures by the government to ensure that thelegislation is complemented by adequate infrastructure, funds and personnel. All stakeholdersin the implementation of the PWDVA must go through gender sensitisation training, andmust have adequate qualifications and an orientation to deal with the nature of such violence.The government needs to ensure adequate and timely allocation of financial resources to theshelter homes and medical facilities, many of which had to be shut down due to lack of thesame. Detailed periodic surveys regarding domestic violence, on the basis of various regions,social categories, etc. need to be conducted in order to analyse the intersections of these indomestic violence and to develop an integrated, multi-pronged approach. Economicempowerment for women, along with greater political representation either throughreservations or meaningful incentives for participation are also necessary steps that need to betaken.
24Sujata Gadkar-Wilcox, Intersectionality and the under-enforcement of domestic violence laws in India
25Lawyers Collective Women Rights Initiative, 5th Monitoring & Evaluation 2012 on the Protection of Women from Domestic Violence Act, 2005; Oxfam India Policy Brief, Implementing the PWDVA: Safeguarding Women from Domestic Violence, 2015
Bringing an end to gender-based violence requires society as a whole to delve deep into theissues underlying such violence and attempt to root out the gender disparities that permeatesociety and deprive women of their agency, power, consent, self-respect and right to lead awith dignity.
"As long as a woman cannot speak, as long as those to whom she speaks do not listen, theviolence is unending." - When I Hit You, Meena Kandasamy