DHANANJAY MAHAPATRA IN THE TIMES OF INDIA
A petitioner has pleaded the Supreme Court to frame guidelines and norms for coverage of criminal cases pending investigation “so that the right of privacy and to live with dignity is not at the mercy of irresponsible press or media as has been done in the case of the recent Aarushi murder case”.
NEW DELHI: The purview of the Supreme Court’s deliberations to frame guidelines for how media should report sub-judice matters, which arose from indignation over a news report on “leaked” privileged communication between the counsel of Sahara Real Estate Corporation and Sebi, has now been expanded to include related cases which had been pending in the apex court since 1999.
While hearing Sahara’s application, a five-judge bench headed by Chief Justice SH Kapadia had directed that “any party, who desires to make submissions in the matter, may do so by way of intervention”. This prompted several public spirited lawyers and organizations to intervene in the deliberations.
During the discussions, the court had appeared to narrow down the issue before it to a debate on the framing of guidelines for reporting of criminal trials to guard against violation of Article 21 guaranteeing right of an accused to reputation and dignity and to ensure that his trial does not get prejudiced, and the witness protection mechanism is not impacted.
However, on April 4, the court ordered inclusion of four more media guideline-related petitions, two of which were pending since 1999 and 2000, within the zone of consideration by permitting the parties involved to make submissions on “framing of guidelines for reporting of cases in media” when the matter is taken up for hearing on April 10. This at once broadened the scope of the exercise.
The issues raised in these four petitions include norms for news coverage in electronic media, norms and guidelines to minimize presentation of sexual abuse and violence on TV channels, contempt proceedings against journalists for publishing confessional statements of accused before police and making police liable for damages for tarnishing the reputation of an accused by releasing details of investigation into a case.
In Criminal Appeal No. 1255 of 1999 titled PUCL vs State of Maharashtra, the News Broadcasters Association had desired to intervene and assist the apex court on the issue of “what norms should govern news coverage by the electronic media”. On November 5, 2008, a bench headed by Justice Dalveer Bhandari had issued notices to all state and Union Territory governments.
The writ petition (civil) No. 387 of 2000 titled Common Cause vs Union of India last came up for hearing before the court in July 2009. The relief sought by the NGO was to “prescribe definite norms and guidelines for minimization of presentation of scenes of violence and sexual abuse in serials and programmes telecast by TV channels for avoidance of undesirable mental impact on the viewers, particularly children”.
In the transfer case 27 of 2011, NGO Anhad had sought initiation of contempt proceedings against two senior journalists for “publishing confessional statements of accused before police and thereby prejudicing or tending to prejudice the due course of judicial proceedings of those accused”.
Ban sought on cops leaking case information
Anhad had also sought a direction to the government to lay down guidelines “to be followed by both police and media regarding release of evidence or information and its publication against the accused claimed to be obtained by police during interrogation or investigation when the matter is sub-judice”.
The fourth petition included in the list was a writ petition filed by Dr Surat Singh in 2008 in the aftermath of media reporting of UP police’s version of the Aarushi murder case and the role of the accused. He had sought a complete ban on police leaking any information to media about pending investigations. He had also requested the court to make police officers personally liable for rushing to media and “making adverse comments or character assassination of an accused or his family members/friends or about the victim”.
Singh had sought framing of guidelines and norms for coverage of criminal cases pending investigation “so that the right of privacy and to live with dignity is not at the mercy of irresponsible press or media as has been done in the case of the recent Aarushi murder case”.
- SC to frame guidelines for reporting sub-judice matters; we need many more guidelines (indialawyers.wordpress.com)
The Constitution of India provides for special treatment of women, guarantees equality and prohibits discrimination. The government of India has been strengthening various laws focused on women and children. This has been more visible since the Beijing CEDAW Conference. The recent years have been witness to some landmark interpretations and directives related to Violence against Women. Despite the constitutional mandate of equal legal status for men and women, the same is yet to be realized. The dejure laws have not been translated into defacto situation for various reasons such as illiteracy, social practices, prejudices, cultural norms based on patriarchal values, poor representation of women in policy-making, poverty, regional disparity in development, lack of access and opportunity to information and resources, etc. The ground situation more or less remains the same.
Most of the laws come with various institutional machinery, partnership between various stakeholders and active role of NGOs. These institutions need to be in existence in order for the law to be effective. Also the policies and programmes made at the top takes a long time to percolate to the bottom and there is an urgent need of sharing information and resoursces.
The awareness on laws and access to justice remains dismal. At the district and the state level sensitivity on women rights among judicial officers, administration and the police is very low. This leads to a situation where the implementation of the law becomes difficult. Recently India has increased its budgetary support for the implementation of various laws on violence against women and it becomes increasingly more important for the organization like Shakti Vahini to work on governance specially related to women and children issuesThe National Legal Research Desk (NLRD) has been instituted to strengthen the implementation of the laws related to Women and Children in India. NLRD focuses on documenting the recent changes in the law, collect and compile the Recent Landmark Judgments of the Supreme Courts of India & the High Courts and ensure wide scale dissemination of the same through the government and the non government machinery. The NLRD will work with Law Enforcement Agencies, Police Academies, Judicial Agencies, Government Agencies, Statutory Agencies, NGOs, Civil Society and Mass Media on promoting Access to Justice for Women and Children. The NLRD website is a knowledge Hub for compilation of all Laws, Judgements and Resource materials on Violence against Women and Children in India. In the first phase (2012) it will focus on the laws related to Human Trafficking, Domestic Violence, Juvenile Justice, Rape Laws, PCPNDT Act , Honour Crimes and Victim Compensation.
Violence against women in the private realm is relegated to secondary status, whether in India or in the United States. Strong laws and public policies are essential steps toward combating such violence. But the real solution lies in a culture shift, in the world, and in each of our homes
MALLIKA KAUR TRIBUNE CHANDIGARH
Three friends walked home after another tiring rehearsal for the school function. It was barely dusk. When the man leapt out of nowhere to pounce on Bandana (name changed), no one was sure what happened. Then a yell grew out of one belly and found its way down the road, down their backs, and into small eighth-grade fists that pounded on the man. He ran. The girls were proud they had fought. When they got home, they told the story solemnly. “Well, that’s what happens when you go walking around in the evenings, going out like that alone!” Bandana’s father message was clear — Chandigarh, 1997.
Brushed under the carpet
The message young girls begin receiving from our families, friends, and society becomes engrained by the time they reach womanhood: that we must not make the unforgiveable mistake of becoming victims of violence. While violence by strangers at least provides some room for women expressing their agony and demanding redressal, violence within the home remains a taboo topic. And this taboo crosses geographic, ethnic, and racial borders.
Victims of domestic abuse
On 17 August 2011, the Inter-American Commission on Human Rights published its opinion finding the United States on the wrong side of human rights and domestic violence survivors. The Commission had considered the case of Jessica Lenahan (formerly Gonzales) whose three young daughters were abducted by Lenahan’s abusive husband, Simon Gonzales, in Castle Rock, Colorado in 1999. Despite Lenahan’s repeated calls and pleas to the police, reporting that she already had a domestic violence restraining order (a legal remedy the US has made relatively easily accessible to its residents) against Simon, the police failed to act for 10 hours. Eventually, Simon Gonzales drove up to the police department and opened fire. He was shot dead by the police. The three girls were subsequently discovered shot to death inside Simon’s truck. Jessica’s legal battle for this tragic loss yielded no results.
In 2005, the US Supreme Court even found that the police involved had not violated the US Constitution by their inaction. However, the Inter-American Commission found that the US had indeed violated human rights by failing to uphold its laws to protect its nationals from domestic violence.
Laws alone not enough
In India too, domestic violence is a punishable offense under the law, even if only rather recently. The Protection of Women from Domestic Violence Act, 2005, which became effective starting October 26, 2006, clearly recognised domestic violence as a punishable offence. However, the recent shaming of the US—a country that has innumerable times more extensive legal protections and services for domestic violence survivors-provides a moment of pause from comparing the wide (perhaps incomparable) chasm between the two legal systems and rather understanding a sad commonality. Laws alone cannot curb violence in the homes as long as domestic violence continues to be treated ‘special’. When it comes to such crimes, we often hear: “There must be two sides to the story” or “they both have strong personalities” or “he is frustrated since he lost his job.”
But, consider this scenario: if my neighbour loses his job, and proceeds to pick fights with me every day, gets drunk and curses me, breaks a window, wouldn’t you agree with my decision to call the police, whether or not he ever physically touches me? But if my partner does the same, why shouldn’t he conform to the standard of behavior, the law and society demand from my acquaintance-neighbour?
Breaking uneasy silence
Such uncomfortable discussions are thus largely missing in our living rooms. The domestic violence movement in the US has been asking precisely such questions more publically, loudly, and brazenly, than in many other parts of the world. For example, during October, nationally recognised as ‘Domestic Violence Awareness Month’ in the US, several public awareness activities are undertaken country-wide. During ‘Standing Silent Witness’ hours, women and men line up in busy city squares holding placards or wearing T-shirts with slogans acknowledging someone they know (or know of) who has faced domestic violence. During ‘Remembrance Days,’ survivors, allies, advocates, join together to remember those who have died because of domestic violence and also celebrate those who have survived. Purple ribbons, which have become the symbols of solidarity with anti-domestic violence work, are made into pins and passed out at local events; worn on bags and jackets; and hung on doors.
In India, we saw the Bell Bajao campaign, by the non-profit Breakthrough in 2008. TV, radio, online and print media were employed to circulate catchy calls for action by society to take a stand against domestic violence. To break the uneasy silence.
Measuring domestic violence
The anti-violence movement in the US has also promoted the measurement of domestic violence crimes, and the publicising of the statistics, so as to respond to the universal reaction—“We aren’t that kind of a family!”
On an average, according to the US Bureau of Justice Statistics, more than three women and one man are murdered by their intimate partners in the US every day. The Center for Disease Control has found that one in four women and one in nine men in the US report being victims of domestic violence at some points in their lives. Also, more recently, teen dating violence has been studied as a priority: approximately one in five female high school students report being physically, sexually, or emotionally abused by a dating partner.
In India, the National Family Health Survey (NFHS), 2005-06, recorded that 37 per cent women reported being survivors of spousal abuse; that is more than 1 in 3. These statistics show that most of us know someone who is a survivor of such violence, and all of us then are in fact ‘that kind of a family.’
Violence knows no bar
When I began representing domestic violence survivors in Californian courts, one of my mother’s friend’s asked her in all earnest, “So is wife-beating really a problem with Americans too?” (She clarified later that she meant ‘white’ Americans, of course.) My work has borne out the statistics that domestic violence knows no race, class, or religious boundaries. However, socio-economic factors can increase vulnerability for such violence: for example, if someone has no source of income, her abuser knows that her economic situation will prevent her from speaking about the violence or seeking help.
Domestic violence is a human rights problem that exists across borders, as the Inter-American Commission recently reminded the US—It is not a ‘women’s issue’ rather affects boys and men very severely. Indeed, India’s Protection of Women from Domestic Violence Act, 2005, does not cover men, and most commentaries on domestic violence-including this one-refer to the perpetrators of violence as male and the victim as female. This is simply because domestic violence victims are disproportionately female. However, men can be and are victims of violence by their partners in some cases as well, both in homosexual and heterosexual relationships. Moreover, this violence does not take place in a vacuum.
Children, girls as well as boys, are witnesses to such violence. Even if they are themselves never the direct targets of the violence, they bear the emotional costs of growing up in an environment of repeated cycles of fear, escalation of tensions, outbursts of violence, and misleading periods of calm. Studies show that children who grow up in violent homes, either themselves become vulnerable to being abused as adults or have a higher likelihood of becoming abusers in the future. This ‘cycle of power and control,’ which broadly describes domestic violence, has its immediate and collateral victims.
Move beyond campaigns
Campaigns such as ‘bell bajao’ or ‘standing silent witness’ or ‘remembrance days’ focus on cases where there are identifiable victims, in already violent relationships. Some of us might then still participate in these campaigns and still claim, “We aren’t that kind of a family!”
What would truly make us not one of ‘those’ families is if we start to check our everyday responses to gender inequalities and discrimination. Unless we stop calling street harassment ‘eve teasing;’ stop worrying about protecting our girls’ reputations even at the costs of their safety; stop spending more time, money and energy on weddings than on talking about healthy relationships and marriages, we will not stop domestic violence. Only when three friends can walk with safety as well as the security of the knowledge that they will not be judged should they face harm by someone, whether on the street or in the home, can we begin to feel assured that we are progressing towards equal justice for all.
Cycle of Power and Control
Intimate partner violence or domestic violence (DV) is controlling, abusive, and aggressive behavior in an intimate relationship . It includes verbal, emotional, physical, and/or sexual abuse.
DV usually comes to public notice only in extreme cases of physical abuse.
However, behind closed doors, such violence typically follows a regular pattern of three phases that repeat themselves:
One, the ‘tension-building’ phase. The abuser becomes increasingly irritable, moody, impatient, resulting in his partner “walking on eggshells,” not knowing what might make the abuser more angry.
Two, the ‘acute’ phase. There is some sort of explosion and violence that may be verbal, physical, and/or sexual.
Third, the ‘honeymoon’ phase. There is calm again. The abuser may apologise or pretend like nothing happened and may bring flowers and chocolates. The partner starts to feel relief. That is till the ‘tension-building’ phase begins again.
There is thus a clear difference between common, everyday disputes between couples and domestic violence.
Three things to tell someone who is facing such violence: I believe you / You are not alone /You have options
The writer is a lawyer who focuses on gender and minority issues in the United States and South Asia.
T.K. RAJALAKSHMI IN THE FRONTLINE
Women’s organisations rise up against a petition that seeks an amendment to Section 498A of the Indian Penal Code.
A PETITION that alleges the misuse of Section 498A of the Indian Penal Code, which has been admitted by the Rajya Sabha Committee on Petitions, has become an object of concern among leading women’s organisations in the country. The petition claims that the law, dealing with dowry-related torture and acute domestic violence, is being misused. The existing law provides for a punishment of up to three years.
The petition, filed by one Dr Anupama Singh, ostensibly on behalf of many people, has demanded that the said section be made non-cognisable, bailable and compoundable. At present, the section reads: “Whoever, being the husband or the relative of the husband of a woman, subjects such women to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine.” Currently, Section 498 is the only law that victims of dowry-related torture and domestic violence can have recourse to. The fact that dowry-related violence and dowry deaths have shown no abatement in the past two decades only indicates that the existing laws have not been implemented properly and have, therefore, failed to serve as deterrents.
It is ironical that while women’s organisations are demanding new laws to deal with the multifarious types of violence against women – the latest one is a law to deal with honour-related murders – and the government is responding positively, demands are being made to dilute existing ones. Besides, a Bill dealing with the protection of women from sexual harassment at the workplace has been introduced in the Lok Sabha. Also on the anvil is a draft Bill expanding the definition of sexual assault to include child abuse as well.
The fact that the Rajya Sabha committee has entertained a petition that seeks to amend Section 498A is perceived as a regressive step. Women’s groups, including the All India Democratic Women’s Association (AIDWA), have expressed their disappointment and submitted a memorandum to the committee highlighting their concern.
The petitioner has contended that Section 498A is being widely misused, fearlessly abused, and used with ulterior motives by unscrupulous people. The abuse, according to the petitioner, has caused a lot of harassment and torture, including atrocities inflicted on senior citizens, children, women (including pregnant women) and men. The petition claims that “there are several cases of dowry death wherein the supposedly ‘dead victims’ have come back alive, and several cases where the same women has [ sic] repeatedly alleged charges under this law in each of her [ sic] repeat marriages”.
The petition portrays complainant women as veritable Delilahs and Jezebels. It pleads that the law is being misused by women to “enable a get-rich-quick-scheme to extort large sums of money from innocent families”, “as a bargaining tool by those women who indulge in adultery”, to “alienate the husband from his parents and siblings so as to gain control over his finances and social behaviour including his lifestyle”, and to “conceal true facts about the mental health and educational level at the time of marriage, thereby adopting fraudulent means to forge the alliance”.
According to the petition, when their nefarious acts were exposed, the complainant women took recourse to this law, “deflecting the needle of crime on the innocent husband and his family… this law being an exception in Criminal Law presumes the accused as guilty until proven innocent; hence the woman’s word is taken as a gospel of truth. And there from begins the saga of unending trials, tribulations and destruction of an innocent man and his family.”
The law, it says, is being misused “to enable divorce so as to revive any pre-marital relationship that the wife has had [ sic] as she may have unwillingly given her consent for marriage to satisfy her parents”; to deny custody of children to the husband and his family; and to inflict “sufferings on husband and his family to settle scores and to wreak vengeance, thereby posing a grave threat to the very existence of a peaceful family unit in society”. The petition claims that thousands of innocent families have been implicated in false cases as a complaint is enough to arrest the husband, in-laws and anyone else. It contends that this has led to the “arrest of lakhs [ sic] of innocent citizens (thousands of families), with many committing suicide as they are unable to bear the indelible stigma on their honour and reputation”.
Quoting from the National Crime Records Bureau (NCRB), the petition says that some 501,020 people had been arrested under Section 498A of the IPC from 2003-06; 294,147 of them completed trial under the Section; and 58,842 were convicted. The petition also quotes a 2005 Supreme Court order where the misuse of the law was compared to “unleashing legal terrorism”; an undated World Health Organisation (WHO) report that has apparently said that Section 498A is one of the major reasons for growing “elder abuse in India”; a Law Commission Report (154th); the Malimath Committee Report (on Reforms of the Criminal Justice System); and the 111th report of the Parliamentary Standing Committee on Home Affairs, which have apparently acknowledged that there has been widespread misuse of Section 498A.
The Malimath Committee Report made general observations in the section dealing with offences against women. It said: “There is a general complaint that Section 498A of the IPC regarding cruelty by the husband or his relatives is subjected to gross misuse and many times operates against the interest of the wife herself. This offence is non-bailable and non-compoundable. Hence husband and other members of the family are arrested and can be behind the bars, which may result in husband losing his job. Even if the wife is willing to condone and forgive the lapse of the husband and live in matrimony, this provision comes in the way of spouses returning to the matrimonial home. This hardship can be avoided by making the offence bailable and compoundable.”
The Standing Committee report, while referring to the Law Commission’s and Malimath Committee’s reports, also recommended compounding of the offence under Section 498A . It noted: “Section 498A is intended to protect the woman from the cruelty of the husband or his relative. It has been widely reported that this provision has been misused and is also harsh as it is non-bailable and non-compoundable. It is desirable to provide a chance to the estranged spouses to come together and therefore it is proposed to make the offence under Section 498A IPC a compoundable one by inserting this Section in the Table under Sub Section (2) of Section 320 of CrPC [Criminal Procedure Code], wherein it can be compounded with permission of the court.”
On the basis of the general observations of the reports, the petitioner has demanded that the section be suitably amended so as to make (1) the offence under it bailable, non-cognisable and compoundable; (2) to make it punishable for whosoever misuses it; (3) to make the misuser liable to compensate the financial loss suffered by the falsely accused in the process; (4) to make the law gender-neutral in order to protect the interests of any man or woman and (5) to ensure time-bound trial, with a six-month limit.
As far as the number of cases are concerned, very few people would dispute the figures quoted in the NCRB reports. Roughly around 80,000 cases of torture are filed every year; every minute, a woman is killed for dowry; and very few of the complaints result in convictions. For this, the poor implementation of the law rather than the law itself is to blame.
Women’s groups feel that any dilution of the law will first leave victims of cruelty in the lurch. Making the offence non-cognisable would mean that the police will not respond to any complaint made by a woman and also not investigate the matter. This would also mean that every time a woman faces domestic violence, she will have to go to the court to file a complaint before a magistrate, a process that the majority of Indian women will not find easy. The offence being bailable implies that no person can be arrested at any stage by the police without a magistrate’s order. This would mean that a woman victim could well face more physical or mental abuse without any protection whatsoever from her aggressor.
As far as sloppy investigation is concerned, AIDWA has argued that amendments made to the CrPC in 2009 included one with regard to the powers of the police. The amendment provides that in cases that entail a punishment of up to seven years of imprisonment the police should, before arresting a person, make proper investigation. It also states that no arrest shall be made if the accused cooperates with the police and does not tamper with evidence. The onus to investigate properly before conducting an arrest is, therefore, on the police.
AIDWA, which is the largest women’s organisation in the country and has fairly long experience in dealing with issues relating to women as victims, says that the ground realities are in complete contrast to what has been presented in the petition. First, it says, women approach the police or any organisation only after going through a lot of physical and mental battery. Even when they have dared to file a complaint, it is common to find gender biases, corruption and inefficiency on the part of the police.
Second, the police have been found to take an inordinately long time to register complaints, and complainants have often had to make repeated trips to the police station. Even the specialised Crimes Against Women Cells (in Delhi and Mumbai) have not proved helpful to women complainants. AIDWA’s experience is that women are forced to attend conciliation proceedings, and the cases are normally registered after the breakdown of these. Neither do the police make attempts to recover the streedhan or dowry in time. The nature of the investigation has, by and large, been shoddy in that the statements of the complainant and other members of her family/relatives are not recorded.
AIDWA general secretary Sudha Sundararaman and legal convener Kirti Singh have demanded that complaints under Section 498A be dealt with in the same way as complaints under provisions for other serious crimes. A perusal of various judgments under this section reveals that there was hardly an instance in which the accused were held guilty under Section 498A on its own. It was only in cases where the woman had finally died that the accused were punished under this section. False complaints, the organisation said, needed to be dealt with on a case-to-case basis.
It is presumed that a law can be misused only if there is a fair degree of knowledge about it. The Associated Chambers of Commerce and Industry of India conducted a survey of 10,000 women, including working women, housewives and college girls in Delhi and the National Capital Region, and found that despite over 20 constitutional provisions for women, 70 per cent of those surveyed were not aware of their legal rights. Another questionnaire-based survey, on 2,460 young women, done by AIDWA last year in 13 States revealed that violence at home was an endemic and commonplace phenomenon. The respondents were all in the 16-30 age group.
In some States such as Tamil Nadu, all the married women surveyed admitted to violence by their husbands and in-laws. The survey findings from Uttar Pradesh were equally shocking. Of the 239 women surveyed, 132 reported domestic violence, and the trend was common across educated and uneducated families.
The majority of respondents from Mumbai and Pune revealed that remaining single was not an option; similarly, 33 of the 40 women surveyed in Rajasthan felt that marriage was essential. While most of the married women shared their experiences of domestic violence with their parents, none of them reported sharing such experiences with their in-laws. Of the 100 women surveyed in Haryana, 44 reported violence at the hands of their natal and marital family members.
The findings of various surveys conducted only reaffirm what has been known all along – that women do suffer a lot of violence in this country. The virtual absence of any marital rights makes women even more vulnerable in contemplating action against their husbands or in-laws. The latest NCRB data, which are for 2008, revealed that dowry deaths had gone up from 6,975 cases in 1998 to 8,093 in 2007; cases registered under Section 498A had risen from 41,375 to 75,930 (almost doubled), while reported sexual harassment cases had gone up from 8,053 to 10,950 in the 10-year period. There has been a steady escalation in the violence against women, that too dowry-related violence. If there had been a real decline, it would be reflected in the number of dowry deaths.
In a socio-cultural milieu that encourages a culture of silence as far as women are concerned, where getting married and staying married are extolled values, and where marriage is perceived as providing security and social respect, the possibility of a large number of women faking and falsifying incidents of violence and harassment against them is not only remote but almost improbable.
- Call for amendment of section IPC 498a (oasiskerala.wordpress.com)
- Protecting women from domestic violence (indialawyers.wordpress.com)
- SC reverses acquittal by High Court in the Mumbai Child Sex Abuse Case (indialawyers.wordpress.com)
- Dowry wars: The big issue that has India divided (independent.co.uk)
- Grievance meet to settle women-related cases (hindu.com)
- High Court can suo motu question Sessions judge’s unjustified order (indialawyers.wordpress.com)
- Decreasing Sex Ratio in the Country (equalityindia.wordpress.com)
Notwithstanding many legal reforms, societal responses to domestic violence still largely exclude legal intervention. Women’s access to these laws is very rare as male batterers are not arrested, prosecuted, or sentenced as severely as other violent offenders which are confirmed by studies.
Vineet Kapoor in The Tribune
VIOLENCE in the private sphere of the family and the victimisation of women in the intimate relationships has acquired legitimacy and urgent attention in the legal discourse. Starting from its recognition as a crime in the last 40 years, the issue is now actively advocated by women’s rights group as an important concern of their human rights.
This recognition identifies violence in the private sphere not merely as a crime, but locates the context of this crime into the systemic process of structural subordination of women in a gendered social order where violence reconfirms and reproduces those gender hierarchies through fear, which produce this violence in the first instance.
That is why the criminal justice response is not similar to other crimes happening in the public sphere. There is a gap between the normative and legal framework on the one hand and the accessibility of justice and law enforcement on the other. Though progressive and social justice based laws have been enacted for the emancipation of the subordinated people and groups, the laws related to domestic violence remain victim to gaps.
The central context of the problem of domestic violence and women’s access to justice is that despite a proliferation of laws, domestic violence is still perceived as less condemnable than other forms of abuse. Locating violence against women as denial of human rights raises fundamental concerns for the women’s access to justice and how the legal order of any country addresses this issue.
The context of subordinated social existence of most women, when seen through a human rights angle, depends on how best a domestic legal order responds to these expectations (Dairam: 2004). Despite a proliferation of laws in this direction, there is a lack of proper law enforcement in case of domestic violence reflected by an international phenomenon cutting across different countries.
This phenomenon confirms to a gendered social order of subordination in which women exist and struggle against their victimisation. The high stakes the Indian Constitution attaches to the question of equality, by enshrining it as a fundamental right, whose mandate covers the issue of non-discrimination on grounds of sex, gives much credence to human rights readings of legal discourse and women’s rights in India.
The women’s emancipation and rights realisation on the ground, however, forms a different context. The brutalised and subordinated existence of a large proportion of women within their social environment gives formidable challenge to visions of equality and human rights which inform most of the ‘progressive’ laws designed to promote social justice and social change.
The evaluation of women’s access to justice gains primacy when we find that the progress in law has not often matched with the progress in providing justice to women.
Some scholars working on women’s human rights maintain that certain sections of society may encourage a culture of violence due to the socially constructed view of women as flawed and wayward creatures who require chastisement for their own and social good. The encouragement may stem from a dominant focus on male self-identity, using violence against women to define and differentiate men from the inferior ‘other’.
It was until late 1960s that the problem was seriously scrutinised and the public concern started mounting against it internationally. The issue of domestic violence came under the sharp focus of second wave feminism from 1970s onwards when the feminists attacked the patriarchal legitimacy of violence and talked of women’s rights to security within the family and their claims to equality and liberty within the private sphere.
They argued that “personal is political” and that the inner world of family should be open to public scrutiny so that the inequalities and power relations within the family could be made visible.
Since the popular conception of violence at home did not merit much consideration as a punishable offence, the feminist movement, aimed at attaining substantive equality for women, regarded the domestic violence as one of the chief disabilities for the promotion of women’s rights and their claims to equality. Women’s rights movement struggled hard to campaign for the inclusion of various manifestations of domestic violence as a crime within the criminal justice system to get law on the side of the women in their struggle for justice. The feminist movement exerted influence in extending the reach of criminal law within the insulated world of private sphere manifested by family and the home.
By 1980s and 1990s, many countries legislated for inclusion of domestic violence within the criminal law while most countries still did not legislate and were slow to respond. Most countries which did not legislate against domestic violence as a distinct crime continue to treat it under its criminal assault laws.
There was growing realisation since late 1980s that domestic violence needs special attention and is closely associated with women’s rights. Due to the growing influence and impact made by the women’s movement between 1970s and 1990s, the issue of domestic violence attained a primacy in at least the formal stance taken in public policy and criminal justice system of many countries.
The local women’s movement in many countries, inspired and energised by the international women’s human rights movement greatly contributed in exerting pressure on their respective governments to change their policy stance especially in the criminal justice system to comply with the ongoing international standard setting.
The international developments in this direction gave strength to the demands from the women’s rights groups in India. The recognition of domestic violence as a crime in India was brought about in the early 1980s after a sustained campaign by feminist groups and women activists all over the country. There was a huge demand for tackling the criminalisation of dowry death and domestic violence which lead to the enactment of Section 498A in the IPC in 1983, Section 304B in 1986 and corresponding provisions in the Indian Evidence Act, 1872.
The criminalisation of domestic violence in the form of Sections 498A and 304B (dowry death) were considered significant developments in law in correcting historical, legal, and moral disparities in the legal protections afforded to abused women. It sought for the first time to bring the issue of domestic or family violence out of the protected private realm of the family and into the public domain in India.
Despite these legal reforms, societal responses to domestic violence still largely exclude legal intervention. Women’s access to these laws is very rare as male batterers are not arrested, prosecuted, or sentenced as severely as other violent offenders which are confirmed by studies done by several organisations and NGOs.
There are problems in access to justice and implementation of these laws. The police often exercises discretion in avoiding arrest while responding to domestic violence incidents and emphasises on mediation and conciliation.
Public prosecutors fail to actively pursue cases of domestic violence under Section 498A, as often women turn hostile during the prosecution and agree to drop the charges. Sentences tend to be less serious for those convicted of domestic violence.
The result of these processes has been a higher dismissal rate for domestic violence cases at the prosecution stage, compared to other violence cases, and less serious sentences. The passing of the specialised legislation in October 2006, called The Protection of Women from Domestic Violence Act, is a significant development in this direction as it provides the much-needed civil law remedies to help victims of domestic violence.
These criminal laws and the civil law provisions now make an impressive set of laws designed to deal with the domestic violence and to provide justice to the victims of domestic violence. Despite this, the question that arises is how far these laws are being used by the victimised women.
The delivery of these laws within a gendered social order raises a number of concerns regarding the human rights of victimised women who exist in a position of structural subordination, which leads to formidable barriers in access to justice.
As a background to discuss women’s access to justice in case of domestic violence, it is useful to first discuss the domestic violence as an issue of women’s human rights. Violence against women is also an issue of the women’s human rights as the systematic perpetration of violence on women is a result of the subordinated position of women in society which in itself raises questions on the right to equality based on grounds of sex.
Since violence against women mostly occurs in the private sphere of the family, the human rights of women as an individual need to be considered while dealing with policy issues attached to domestic violence. The human rights tenets give credence to the responsibility of the state. Therefore, the role of the state in providing for need-based policy provisions for access to justice for women need to be urgently addressed.
As for policy, the government will have to consider that the women’s lack of access to justice in cases of domestic violence remains victim to the structural issues of women’s subordination which gets reflected in the delivery of justice and its distance from the victim, throwing challenges at law, justice and governance in the country. How this law reaches women and how and in what context it is delivered would determine whether women have access to justice as equal citizens.
THE LAW: ITS SCOPE & DIMENSIONs
- The Protection of Women from Domestic Violence Act, 2005, which came into force from October 26, 2006, is the first significant attempt to recognise domestic abuse as a punishable offence.
- Its provisions have been extended to those in live-in relationships, and to provide for emergency relief for the victims, in addition to legal recourse.
- Of all forms of criminal behaviour, domestic violence is among the most prevalent and among the least reported. One reason for this anomaly is that till 2005, remedies available to a victim of domestic violence in the civil courts (divorce) and criminal courts (vide Section 498A of the Indian Penal Code) were limited.
- Earlier, there was no emergency relief available to the victim; the remedies that were available were linked to matrimonial proceedings; and the court proceedings were always protracted, during which period the victim was invariably at the mercy of the abuser. Relationships outside marriage were not recognised.
- Women and children are the primary beneficiaries of this Act. Section 2(a) of the Act will help any woman who is or has been in a domestic relationship with the ‘respondent’ in the case.
- Children are also covered under the Act; they too can file a case against a parent or parents who are tormenting or torturing them, physically, mentally, or economically. Any person can file a complaint on behalf of a child.
- The law recognises live-in relationships. Thus, if a woman is living with a man who abuses her, she can take recourse to the provisions of this law even though she is not married to him. It also protects women in fraudulent or bigamous marriages, or in marriages deemed invalid in Law
The writer, a senior IPS officer of Madhya Pradesh cadre, specialises on human rights. He is the Assistant Inspector-General of Police (Training),Bhopal
OP ED PAGE ARTICLE PUBLISHED IN THE TRIBUNE CHANDIGARH / DECEMBER 20, 2010
Traditionally, the Indian society might have frowned upon live-in relationships. But the growing number of such couples indicates a degree of acceptance. Women, however, are still the losers
THE ‘live- in-relationship’ is a living arrangement in which an un-married couple lives together in a long-term relationship that resembles a marriage. The Hindu Marriage Act 1955 does not recognise ‘live-in-relationship’. Nor does the Criminal Procedure Code 1973. The Protection of Women from Domestic Violence Act 2005 (PWDVA) on the other hand for the purpose of providing protection and maintenance to women says that an aggrieved live-in partner may be granted alimony under the Act.
“Merely spending weekends together or a one-night stand would not make it a domestic relationship,” said a bench of Justices Markandey Katju and TS Thakur, cautioning that in future, claims for financial relief arising out of live-in link-ups would increase in India. The Supreme Court of India has noted that just any ‘live-in relationship’ does not entitle a woman to alimony. To make a ‘live-in’ legal the Supreme Court says that the couple must hold themselves out to society as being akin to spouses; they must be of legal age to marry; they must be otherwise qualified to enter into a legal marriage, including being unmarried; and they must have voluntarily cohabited for a significant period of time. Making an attempt to iron out certain ambiguous situations, the judges also said that if a man has a ‘mistress’ whom he maintains financially and uses mainly for sexual purpose and/or as a servant it would not, in our opinion, be a relationship “in the nature of marriage.”
Conscious that the judgment would exclude many women in live-in relationships from the benefit of the PWDVA, the apex court further said it is not for this court to legislate or amend the law. Parliament has used the expression ‘relationship in the nature of marriage’ and not ‘live-in relationship’.
Considering the increasing number of live-in relationships in our times in India, the Supreme Court wants the scope of the provision for maintenance under section 125 of the criminal procedure code (Cr.P.C.) expanded, so that women in such relationships do not face economic deprivation after living in a domestic set-up for long periods of time.
The issue has assumed and rightly so huge dimensions that Justice GS Singhvi and Justice AK Ganguly have urged the Chief Justice SH Kapadia to set up a larger bench to consider whether “the living together of a man and woman as husband and wife for a considerable period would raise the presumption of a valid marriage between them and whether such a presumption would entitle the woman to maintenance under section 125 Cr.P.C.?’’ Secondly whether proof of marriage is essential for a claim of maintenance under the section? Also whether a marriage performed according to customary rites, without strictly fulfilling the requisites of the Hindu Marriage Act, or any other personal law, would entitle the woman to maintenance under the section?”
The bench also wanted an expansive interpretation of the term ‘wife’ to include cases where a man and woman have been living together as husband and wife for a reasonably long period. The judges said the PWDVA gave a very broad definition of the term ‘domestic abuse’, which must include economic abuse.
The law traditionally has been biased in favour of marriage. Public policy supports marriage as necessary to the stability of the family, the basic societal unit. To preserve and encourage marriage, the law reserves many rights and privileges to married persons. Cohabitation carries none of those rights and privileges. It has been said in the context that cohabitation has all the headaches of marriage without any of the benefits.
What the PWDVA does is that it deters men from having ‘live-in-relationships’ for the fear of providing maintenance to his partner. On the other hand if a married man provides maintenance to his partner he is denying what was the economic right of his legal wife and children.
What needs to be understood is that the institution of marriage and issues that emerge from it is essentially a concept that needs to be perceived in a time frame and specific context. A set of norms valued and acceptable in one context cannot easily or rather should not easily be planted in another context. Today’s India is changing at a pace that was socially unimaginable say 50 years ago. Issues like ‘live-in relationship’ that were taken up by the western society are gradually percolating into our social norms. The most obvious contributing factor being the transformed urban life which itself is growing from factors associated with urbanisation and increased income, long hours of work, often late in the night and virtually no time for family.
But the issue that needs our conscious attention is that is Indian society ready for this trend? It needs to be noted that whatever one may say the fact is that women will ultimately emerge as the most vulnerable and possibly the greatest losers. Children that result from such relationships are also to be kept in mind. The conventional argument that has always been cited in favour of India’s unique concept of the family being responsible for looking after the young and the aged is also an issue of concern.
The PWDVA is silent on the status of children out of a ‘live-in relationship’. Finally it must also be appreciated that laws and legal obligations notwithstanding foundations of a relationship are based on commitment.
Marriage is just another commitment. If people are shying away from marriages – one reason could be that people are scared of commitments that grow from marriage and are worried– what if it does not work out? Divorce procedures in our country are cumbersome and taxing. May be they need a more liberal reframing so as to decrease the element of fear.
What judges said
ON October 21, 2010 a Two-Judge Bench of Supreme Court comprising Justices Markandey Katju and TS Thakur in D Veluswamy vs D Patchaiammal ruled that in their opinion not all live-in relationships will amount to a relationship in the nature of marriage to get the benefit of the PWDVA, 2005.
Merely spending weekends together or a one-night stand would not make it a “domestic relationship.” If a man has a “keep” whom he maintains financially and uses mainly for sexual purposes and/or as a servant it would not, in our opinion, be a relationship in the nature of marriage. No doubt, the view we are taking would exclude many women who have a live-in relationship from the benefit of the PWDVA Act, but then it is not for this court to legislate or amend the law. Parliament has used the expression “relationship in the nature of marriage” and not “live in relationship”.
Dispel Confusion – BY Hemant Kumar
THE diverse societal opinion on the growing trend of “live-in-relationship” apart, the judicial viewpoint over the same has been rather cautious. Of course, things have undergone a change after the enactment of Protection of Women from Domestic Violence Act, 2005 (PWDVA) whose provisions also extend to women living-in a relationship in the nature of marriage. By doing so, albeit in a veiled manner, the legislature has finally endeavored to accept the contemporary global phenomena appreciated and attempted by some persons among the Gen Next.
In August this year, a Division Bench of the Supreme Court ruled that a live-in which has been long lasting will be considered as marriage and children born out of it are not illegitimate. This verdict came just days after a Delhi High Court ruling which laid down that a partner in a live-in relationship can walk out of it at any point of time without any legal consequence and neither of the partners can complain of infidelity if one deserts the other. It held that “live-in is a walk-in and walk-out relationship. There are no strings attached to it nor the same creates any legal bond between the parties. Such a thing is a contract of living together which is renewed every day by the parties and can be terminated by either without consent of the other party.”
In mid-2008, the National Commission for Women recommended that a woman in a live-in relationship should be entitled to maintenance if she is deserted by her partner. The commission sought a change in the definition of ‘‘wife’’ as described in the Section 125 of Criminal Procedure Code (CrPC), which deals with maintenance and suggested that it should include women involved in a live-in relationship. The move aims at harmonising other sections of the law with the PWDVA that treats a live-in couple’s relationship on a par with that between a legally married husband and wife. The state of Maharashtra also okayed this proposal in 2008 but it requires the final nod of the Centre. Section 125 provides for maintenance of wife, children and parents, who cannot maintain themselves. As of now maintenance can only be claimed by a woman who is a wife, has either been divorced or has obtained a divorce, or is legally separated and is not remarried. It is hoped that the Supreme Court would urgently interpret the whole issue thoroughly in order to ensure that there is no room for any ambiguity for lower courts in the country while dealing with issues related to live-in. Until the concept is granted statutory recognition by Parliament, it is imperative for the judiciary to clear its stand over the same so as to protect the interests of women in such relationships.
(The writer is an advocate Punjab and Haryana High Court)
- Rights of women in live-in relations under court lens (indialawyers.wordpress.com)
- Not all live-in affairs are ‘relationship in the nature of marriage’, says Supreme Court (thehindu.com)
- Indian concubines do not have same rights as wife, Supreme Court rules (telegraph.co.uk)
- Supreme Court judges divided over illegal and indecent act (indialawyers.wordpress.com)
- Live-in relationship no guarantee to alimony (topinews.com)
- Sc Explanation of Live in Relationships With Reference to Domestic Violence Act (indialawyers.wordpress.com)
- Live-in relations: ASG flays SC for using ‘keep’ (ibnlive.in.com)
- Judges, judgments and women’s rights (indialawyers.wordpress.com)
The Protection of Women from Domestic Violence Act (PWDVA) is implemented by the States/Union Territories. The State Governments are required to appoint Protection Officers, register Service Providers and notify shelter homes and medical facilities for implementation of the Act. The Implementation of the Act was reviewed in the meeting of the State Ministers and Secretaries in charge of Women & Child Development, on 16-17 June, 2010, and particularly with regard to the appointment of Protection Officers and registration of Service Providers.
The PWDVA is a Civil law meant to protect and provide support to victims of domestic violence. Under the Act, the aggrieved woman can seek various reliefs such as protection order, residence order, custody order, compensation order, monetary reliefs, shelter and medical facilities. The aggrieved woman can also file a complaint under Section 498A of IPC, where ever relevant. A few complaints/representations alleging misuse of the Act together with alleged misuse of 498A of IPC have been received. These complaints are primarily against alleged misuse of Section 498A IPC rather than any specific provision of the PWDVA.
Under the PWDVA, various reliefs are provided to the aggrieved women on the orders passed by the Magistrate after following due procedure. The Act also has a provision for appeal against the orders of the Magistrate. While adequate safeguards under existing laws such as Section 211 of IPC and Section 250 of CR.PC are available to deal with misuse, if any, of legal provisions, the Government in the Ministry of Home Affairs has issued an advisory on 20.10.2009 to all State Governments and Union Territory Administrations to comply with the procedure as directed by the Courts and follow the advisories issued by the Government of India from time to time, to put to rest the allegation of misuse of Section 498A of IPC.
- NCW to SC: Is it cruelty to threaten divorce? (indialawyers.wordpress.com)
- Offences against children- Bill on Protection of Children from Sexual Offences (indialawyers.wordpress.com)
- Sc Explanation of Live in Relationships With Reference to Domestic Violence Act (indialawyers.wordpress.com)
- New powers to tackle domestic violence (independent.co.uk)
- Law to protect women from workplace harassment soon (topinews.com)
The Union Cabinet today approved the introduction of the Protection of Women against Sexual Harassment at Workplace Bill, 2010 in the Parliament to ensure a safe environment for women at work places, both in public and private sectors whether organised or unorganized. The measure will help in achieving gender empowerment and equality.
The proposed Bill, if enacted, will ensure that women are protected against sexual harassment at all the work places, be it in public or private. This will contribute to realisation of their right to gender equality, life and liberty and equality in working conditions everywhere. The sense of security at the workplace will improve women’s participation in work, resulting in their economic empowerment and inclusive growth.
Salient features of the Bill are as follows:
The Bill proposes a definition of sexual harassment, which is as laid down by the Hon’ble Supreme Court in Vishaka v. State of Rajasthan (1997). Additionally it recognises the promise or threat to a woman’s employment prospects or creation of hostile work environment as ‘sexual harassment’ at workplace and expressly seeks to prohibit such acts.
The Bill provides protection not only to women who are employed but also to any woman who enters the workplace as a client, customer, apprentice, and daily wageworker or in ad-hoc capacity. Students, research scholars in colleges/university and patients in hospitals have also been covered. Further, the Bill seeks to cover workplaces in the unorganised sectors.
The Bill provides for an effective complaints and redressal mechanism. Under the proposed Bill, every employer is required to constitute an Internal Complaints Committee. Since a large number of the establishments (41.2 million out of 41.83 million as per Economic Census, 2005) in our country have less than 10 workers for whom it may not be feasible to set up an Internal Complaints Committee (ICC), the Bill provides for setting up of Local Complaints Committee (LCC) to be constituted by the designated District Officer at the district or sub-district levels, depending upon the need. This twin mechanism would ensure that women in any workplace, irrespective of its size or nature, have access to a redressal mechanism. The LCCs will enquire into the complaints of sexual harassment and recommend action to the employer or District Officer.
Employers who fail to comply with the provisions of the proposed Bill will be punishable with a fine which may extend to ` 50,000.
Since there is a possibility that during the pendency of the enquiry the woman may be subject to threat and aggression, she has been given the option to seek interim relief in the form of transfer either of her own or the respondent or seek leave from work.
The Complaint Committees are required to complete the enquiry within 90 days and a period of 60 days has been given to the employer/District Officer for implementation of the recommendations of the Committee.
The Bill provides for safeguards in case of false or malicious complaint of sexual harassment. However, mere inability to substantiate the complaint or provide adequate proof would not make the complainant liable for punishment.
Implementation of the Bill will be the responsibility of the Central Government in case of its own undertakings/establishments and of the State Governments in respect of every workplace established, owned, controlled or wholly or substantially financed by it as well as of private sector establishments falling within their territory. Besides, the State and Central Governments will oversee implementation as the proposed Bill casts a duty on the Employers to include a Report on the number of cases filed and disposed of in their Annual Report. Organizations, which do not prepare Annual Reports, would forward this information to the District Officer.
Through this implementation mechanism, every employer has the primary duty to implement the provisions of law within his/her establishment while the State and Central Governments have been made responsible for overseeing and ensuring overall implementation of the law. The Governments will also be responsible for maintaining data on the implementation of the Law. In this manner, the proposed Bill will create an elaborate system of reporting and checks and balances, which will result in effective implementation of the Law.
- Cabinet clears Sexual Harassment Bill (ibnlive.in.com)
- Protect a Business from Sexual Harassment Allegations (workplace-bullying.suite101.com)
- Bangladesh ‘Eve teasing’ protest (bbc.co.uk)
- What is Sexual Harassment? (brainz.org)
- eBossWatch National Sexual Harassment Registry Will Deter Workplace Abuse (prweb.com)
- Dealing with Accusations of Sexual Harassment in the Workplace (brighthub.com)
- The Sexual Harassment Dice (neatorama.com)
- ABC Exec Resigned Because of Sexual Harassment Probe [Television] (gawker.com)
- Law to protect women from workplace harassment soon (topinews.com)
- Consequences of Sexual Harassment in the Workplace (brighthub.com)
J. Venkatesan in THE HINDU
The hallmark of a healthy society is the respect it shows to women, says Bench
New Delhi: Expressing serious concern over dowry death cases where young women are being killed, the Supreme Court has said that such offences are to be treated as the ‘rarest of rare’ ones and extreme punishment of death should be awarded to offenders. A Bench consisting of Justices Markandey Katju and T.S. Thakur said: “Although bride-burning or bride-hanging cases have become common in our country, in our opinion, the expression ‘rarest of rare’ does not mean that the act is uncommon, it means that the act is brutal and barbaric. Bride killing is certainly barbaric.”
Writing the judgment, Justice Katju said, “Crimes against women are not ordinary crimes committed in a fit of anger or for property; they are social crimes. They disrupt the entire social fabric. Hence, they call for harsh punishment. Unfortunately, what is happening in our society is that out of lust for money people are often demanding dowry and after extracting as much money as they can they kill the wife and marry again and then again they commit the murder of their wife for the same purpose. This is because of total commercialisation of our society, and lust for money which induces people to commit murder of the wife. The time has come when we have to stamp out this evil from our society, with an iron hand.”
The Bench said: “The hallmark of a healthy society is the respect it shows to women. Indian society has become a sick society. This is evident from the large number of cases coming up in this court (and also in almost all courts in the country) in which young women are being killed by their husbands or by their in-laws by pouring kerosene on them and setting them on fire or by hanging/strangulating them. What is the level of civilisation of a society in which a large number of women are treated in this horrendous and barbaric manner? What has our society become — this is illustrated by this case.”
High Court verdict
In the instant case, the deceased Geeta was married to Satya Narayan Tiwari in December 1997. On November 3, 2000 she died. The father of the deceased Surya Kant Dixit filed a complaint that his daughter was killed by the son-in-law and his mother, Bhuvaneswari Devi, as he could not meet the demand for a Maruti car as part of the dowry. The trial court acquitted Tiwari and his mother. On appeal, the Allahabad High Court convicted them under Sections 304B, 498-A of the Indian Penal Code and Section 4 of the Dowry Prohibition Act and awarded life sentence. The appeal by Tiwari and his mother is directed against this judgment.
Dismissing the appeal, the Supreme Court Bench said: “The manner in which the deceased was done to death, i.e., by first strangulating her and then setting her afire, needed at least two persons, because she [deceased] was also a young lady aged about 24 years. We have carefully perused the impugned judgment and order of the High Court and the judgment of the trial court and other evidence on record. We see no reason to disagree with the judgment and order of the High Court convicting the appellants. In fact, it was really a case under Section 302 IPC and death sentence should have been imposed in such a case, but since no charge under Section 302 IPC was levelled, we cannot do so, otherwise, such cases of bride burning, in our opinion, fall in the category of rarest of rare cases, and hence deserve death sentence.”
The Bench cancelled the bail bonds of the appellants and directed that they be taken into custody to serve the remaining period of sentence.
- Court condemns police use of ‘barbaric’ methods (thehindu.com)
- Not all live-in affairs are ‘relationship in the nature of marriage’, says Supreme Court (thehindu.com)
- Death sentence commuted in rape & murder case (thehindu.com)
- Need to re-look existing dowry law : SC (ibnlive.in.com)
When it comes to women’s issues and the law, the courts continue to send contradictory signals…
As much as police officers, doctors also need to be taught a rape survivor’s rights.
Two courts. Two judgments. Two attitudes. In the contrast lies the story of what Indian women continue to face when they turn to the law.
On October 21, the Supreme Court, in the context of a case before it, held that a woman in a “live-in relationship” could not claim maintenance in the event of abandonment by the man as such a relationship could not pass as a “relationship in the nature of marriage” as described under the law for arrangements outside formal marriage. The Court held that if the woman was a “keep” of the man, who looked after her financially but “uses mainly for sexual purpose and/or as a servant”, then such a woman was exempted from claiming any benefits of maintenance under the Protection of Women Against Domestic Violence Act 2005 on grounds of abandonment. The ruling led to a justifiable outburst by India’s first woman Additional Solicitor General Indira Jaisingh, who also happens to be one of the main movers of the Domestic Violence Act. Ms. Jaisingh ticked off the judges for using a term like “keep” which she held was derogatory to women and was “male chauvinistic”.
Ms. Jaisingh’s statements in court made it to the front pages of most newspapers. But one wonders how many will pause and think about why she felt she had to raise her voice at the use of such a term in the judgment. It was, as she herself emphasised, because the ruling of the Supreme Court sets a tone and a precedent for future judgments that affect women. One of its judgments in what is called the Vishakha case is even today used as the standard for judging all matters relating to sexual harassment in the absence of a specific law. By using a term like “keep”, you disregard and virtually excuse the responsibility of the man in an arrangement in which two people are involved and where one, the woman, is most likely the more vulnerable. Once this becomes the precedent, any man can go to court and challenge the right of a woman with whom he has a relationship outside marriage, and who demands compensation when abandoned, by claiming that she was merely his “keep”. Therefore, Ms. Jaisingh’s intervention needs to be appreciated, as also her courage for speaking out in the highest court of the land where some others might have felt intimidated.Apart from the Vishakha judgment, the Supreme Court has also passed several orders that make it clear that in a rape case, the woman’s character will not be part of the proceedings during the trial and that it is immaterial to the case. This is also an important precedent in the context of women’s rights. Yet, as is evident from another judgment, in another court in Delhi, the practice continues.
Pronouncing judgment in a rape case on October 23, Additional Sessions Judge Kamini Lau drew attention to an outdated and barbaric practice that continues to be used in rape cases while collecting forensic evidence. Rather than help the survivor, this particular test, called the “finger test” or the Per Vagina (PV) test, traumatises the survivor and gives the defence in such cases a stick with which to intimidate and demoralise her in court.When a woman reports rape, she has to go to the police who then send her to a government hospital for a medical examination. The report by the doctor who conducts this test is supposed to be part of the medico-legal evidence that the prosecution presents in a rape case. Yet, although such a test has long been discarded elsewhere, in India doctors are trained to test whether the rape survivor is “habituated to sexual intercourse” by inserting two fingers inside her vagina. Why is this of any relevance to a case where the facts of rape and sexual assault are being determined? Does this mean married women cannot be raped? Does it mean an unmarried woman who has had sex cannot be raped? What does this absurd test actually establish when the woman’s character, or sexual habits, are of no consequence in the matter before the court?
It is heartening to read of at least one judge who was incensed enough to speak out against this test. Judge Lau said, “The test is violative of the fundamental right to privacy of the victim.” She went on to say, “State action cannot be a threat to the constitutional right of an individual. What has shocked my conscience is that this test is being carried out in a routine manner on victims of sexual offences (even minors) by doctors.”
The judge recommended that police officers be sensitised to this issue. But as much as police officers, doctors also need to be taught a survivor’s rights and informed that such a test is simply not allowed. According to a recent report by Human Rights Watch titled, “Dignity on Trial: India’s Need for Sound Standards for Conducting and Interpreting Forensic Examinations of Rape Survivors”, the “finger test” remains standard practice in many parts of India including Mumbai and Delhi. In fact, in Mumbai, three leading government hospitals, where hundreds of rape survivors are examined each year, still use this test. The HRW report also reveals that outdated medical textbooks recommending this test are still being used. As a result, each succeeding generation of doctors continue to follow the practice without thinking twice about its relevance or the trauma they are causing the rape survivor.
Worse still, because the practice continues, many survivors lose their cases in court because they get demoralised, confused or intimidated when sections from the medical report relating to this test are used by the defence to undermine their testimony. Yet, the survivor’s testimony is supposed to be enough in a rape case and the forensic evidence is only secondary. This is especially so because survivors often wait before they go to the police and as a result valuable evidence is lost. As a result, several court rulings have emphasised that delay in filing a complaint should not be held against the survivor. Judge Kamini Lau has drawn attention to an extremely important aspect of the procedures followed in rape cases. Unless something like this is addressed urgently, convictions in rape cases, already abysmally low, will never improve. And women who are sexually assaulted will continue to hesitate before turning to the law.
Email the writer: firstname.lastname@example.org
- Doctors Finger Indian Rape Survivors to Judge Sexual History (womensrights.change.org)
- Man who raped homeless women sentenced to life (seattletimes.nwsource.com)
- Convicted sex offender sentenced to life for 2 rapes (seattletimes.nwsource.com)
- It’s time we recognised the needs of women seeking asylum (liberalconspiracy.org)