Bhumika Sahani
Transformation in the social fabric of a country is reflected in and sanctioned by the laws of that nation. In sync with the changes, the laws protecting women against domestic cruelty has also evolved. This article will trace the trajectory of the law and attempt to respond to some criticism that it has received.
The women’s movement in India has played a crucial role in shaping the laws that offer women protection against domestic cruelty. It was the shortcomings of the Dowry Prohibition Act in addressing the alarming increase in dowry deaths and various forms of abuse faced by married women, that urged the women’s rights movement in the 1970s and 80s to advocate for ‘marital cruelty’ to be brought under the ambit of criminal law. Before the existence of a targeted law, husbands guilty of committing violence against their wives could be convicted under general provisions relating to murder, causing hurt, abetment to suicide or wrongful confinement. These general provisions under criminal law did not differentiate between the situations where women faced violence within their homes as against an assault by a stranger where the power imbalance and what’s at stake is significantly different.
It was only in 1983 when Section 498A was introduced in the justice system, that for the first time, cruelty against married women in their household was criminalised. Although its aim was to address dowry harassment, this law applies widely to the situation of domestic violence. It recognises the fact that offences committed within the privacy of home by a person on whom a woman is emotionally, financially, socially or otherwise dependent needs to be dealt with differently. This was no doubt a step forward, however, there was still a lot of ground to cover to recognize different forms of violence within the home.
Until recently, there was no separate civil law addressing the specific complexities associated with domestic violence. In 2005, The Protection of Women from Domestic Violence Act was enforced. It stands to differ from the earlier laws primarily in the sense it provides a broader definition of domestic violence and offers civil remedies to the survivor of violence. While the objective of criminal law is to punish the offender, civil laws are directed towards providing relief to the aggrieved party in the form of monetary benefits, compensation, asserting right to property etc.; in this case, the woman who faces violence at home. This was a step in the right direction to protect the numerous women facing abuse at home because it provided women avenues to get other forms of relief beyond the arrest of the perpetrator, such as monetary compensation, right to live in the marital home, custody of their children etc.
Despite the intention to restore gender equity in society, such laws are not bereft of criticism. Since the very beginning, people have claimed that women are “misusing the law” and these laws “grossly violate the liberty and dignity of an average man and his family members”. Such petitions have succeeded in influencing various institutions of the State, including the judiciary, which resulted in a weakening of the law protecting women against domestic cruelty. In 2017, Supreme Court passed a judgement on the alleged misuse of Section 498A, the law that criminalize domestic cruelty. The Supreme Court verdict added another structural barrier to accessing justice by stating that family welfare committees would screen the dowry harassment complaints to verify their authenticity at the district level. There were several other attempts made to weaken the already diluted Section 498A. The Supreme Court has modified it’s orders since then to not require the family welfare committees’ review, but has provided for anticipatory bail in cases of dowry harassment to prevent the alleged misuse of the law.
One of the biggest reasons cited to argue that the law was being misused was the the low conviction rate. While misuse of the law is plausible in any legal domain, a low conviction rate may also result from inadequate investigation, the benefit of the doubt given to the accused, bias against women accessing the law, or the patriarchal mindset of people in power who are responsible for conducting the investigation and passing that judgement. Moreover, when the average time to resolve a domestic cruelty case is about 6-8 years, it would be fallacious to rely on a comparison between the conviction rates and the total number of registered cases in a particular year. That apart, there are multiple studies, like the one published by Oxfam, which state that violence against women in India is actually higher than what is depicted in the national crime statistics. Unfortunately, many forms of violence faced by women remain unnoticed because dominant patriarchal stereotypes discourage women from recognising, acknowledging and reporting such incidents. 📷
As per the National Crime Records Bureau (NCRB) data, 2017, crime against women has risen for the third consecutive year. The data also reveals that the majority of cases reported under total crimes against women in 2017 were under the head ‘Cruelty by Husband or His Relatives’ (33.2%). The cases reported in this category have actually been consistently falling since 2015.
Though an upward trend in crime against women is not surprising, considering India was recently termed the most dangerous country for women, the decline in domestic cruelty cases despite it being the most reported crime against women, hints at an inconsistency in the data. What one can conclude from the NCRB data on domestic cruelty is that these figures are only the tip of the iceberg as under-reporting of domestic violence in India is an established fact. According to India’s National Family Health Survey (NFHS-4), 1 in 3 married women in India face intimate partner violence. However, 9 in 10 of those women do not seek help.
In such a scenario, some sections of the society have repeatedly, and fallaciously, relied on the national crime statistics to paint a picture of women misusing the law. It is imperative to look beyond these numbers and employ a deeper analysis to deconstruct these statistics before claiming that women misuse the laws against domestic cruelty. It is also critical to understand the societal factors that propagate violence against women and force women to suffer in silence.
What can you do as a reader and concerned individual for women’s well-being in India? Never rely on only one source of information. Continue to research different perspectives of domestic violence, and do not be afraid to engage with the issue. Talk to your friends and family about it because women's safety is not an issue that affects only women; it has consequences for the society at large.