Some
home truths
Shohana
Shabnam
It's
been great to hear that the Law Commission has taken initiative to draft
a bill on domestic violence, great to know that domestic violence will
be formally recognised in law. Till date dowry is the only recognised
domestic violence in our country. So, finally the huge vacuum in law
that was felt and voiced by women's movement has found a ground to work
on. Already the Law Commission has sought for human rights NGOs views
on the issue and this surely is a very positive step on their part.
What
we mean by domestic violence?
The first thing that came to mind while writing this article is what
actually we mean by domestic violence or to be precise what actually
strikes the public mind. I think the most common idea that strikes our
mind (we have frequently come across visual display of it in news papers)
is picture of a women, a distorted figure burned, choked, hanged to
death. The reason for her death is unquestioningly dowry as will be
cried by media, police and families of the victim. What is missing from
the picture is the long story...a history of violence she had to endure
to come to this point...death. Not acknowledging that the process that
led to her death involves various factors like power imbalance between
men and women, societal perceptions like "women should be controlled
by men" or "she should not leave her husbands home",
the invisible pressure to endure all sufferings and lack of access to
resources.
The propaganda
around dowry and dowry deaths kept us well away from the home truths
that husbands don't kill or use violence against wives for dowry only.
Causes can vary from refusing to cook to being humiliated in front of
friends, inability to control kids, nagging and simply for nothing.
However, we hardly come across police or media reports of domestic violence
when the woman is still alive.
As rightly
pointed out by Helena Kennedy in her article The Illusion of Inclusion-
Women in the Law in 1996 New Zealand Law Conference, "Battered
women remain in abusive relationships, not only because alternatives
are thin on the ground for women with children and few resources, but
because of shame, self blaming, loss of self esteem and fear of reprisals.
Their abusers take on proportions, which are larger than life so that
women believe they will never be able to get free. If your autonomy
has been eroded consistently over time, the idea of taking such a step
becomes monumental. The effects of battering can bear many of the same
psychological hallmarks as those experienced by hostages".
In our
context the societal perceptions are added pressure for a woman to leave
or sought for legal or other recourses.
This article
is not a comprehensive write up on domestic violence nor will it try
to list down the types of violence that can come under its periphery.
It's a mere attempt to hit some home truths. The truths that domestic
violence is not merely a physical threat, but also a threat to the psychological
and emotional wellbeing. Is it only perpetuated by husbands, it can
be perpetuated by in-laws, boyfriends. It is aided by society and even
state plays a vital role by maintaining a distance from the 'private
sphere', not acknowledging the fact that private sphere can be equally
if not more threatening to a women life, liberty, security and decision
making. Let's not also forget children. In many instance children become
the victims of violence, psychologically and emotionally disturbed,
caught in the middle of domestic turmoil for custody, maintenance.
There
is law...there is no law
Most of the cases of deaths of women where the main accused is the husband
or his family are definitely reported as dowry deaths, whereas in fact
there may not be such demands of dowry.
The problem
of reporting domestic violence cases as dowry lies in the limitation
of law. I remember number of women coming to a legal aid organisation
demanding that dowry case be filed because of their husbands beatings.
When asked whether dowry demands were made, they would answer ' well,
no, but he always beats me up'. They will eventually mention the law
enacted for them Nari-shishu Ain - they will call it. When explained
that unless there is dowry involved they cannot file a case under the
Suppression of Violence Against Women and Children Act, 2000, they would
always find it absurd and would ask "then what's the point of having
a separate law to suppress violence against women and children, if that
law fails to address the severe violence and fear I had to endure everyday".
"Is
claiming money more severe than beating me to death". As her husband
didn't beat her up for dowry, so there is no case under Nari-shishu
Ain. But there is the Penal Code; I would rather call it the father
of all criminal laws. Charges can be filed under the Penal Code for
simple to grievous injury. But the series of questions from battered
women would be, "will police take my case, will judge punish my
husband, what if he gets out on bail and come to kill me. What if he
serves his sentence and then come back to kill me. What if police/judge
drops the case as I was not injured enough to come under the schedule
of Penal Code". A million question, fear, ifs & buts will haunt
those who want an answer. There will be none. As we know that there
is law, but also there is no law.
In the
end it will come down to the Nari shishu Ain, as there is no other effective
recourse people will opt for filing a dowry case. Eventually, as dowry
couldn't be proved perpetrators of violence go unpunished. What is not
understood is that domestic violence is not measured by the number of
blows or the gravity of injury but the fear and imbalance of power engendered
by them.
Think
about them
Laws are made for the benefit of people, to protect rights. So the primary
concern should be what is the best way to ensure that legislation will
be effective to control, reduce violence and give recourse to the victim.
Procedures should be made to fit that criterion. In domestic violence
cases protection and preventive measures should be the prime concern
rather than deterrent punishment. Even in developed countries like the
United Kingdom 20% of deaths of women are caused by their husbands or
partners as mentioned by Helena Kennedy in her article The Illusion
of Inclusion- Women in the Law. Ensuring security safety and wellbeing
of the victim should be focused and injunction, counselling, protection
and other supportive mechanisms should be introduced in domestic violence
cases. So that the accused persons have close proximity with the victim
in terms of relationship and the chances of being stalked or endure
further violence is also very high.
The issue
of domestic violence is a very sensitive area that demands special handling.
In my view the formal justice system, specifically the criminal justice
system is not yet prepared to accommodate the complexities of a domestic
violence case or have the sensitivity within the formal system to deal
such case. So, there must be social mechanisms in place. And as recommended
by Ain O Salish Kendra (ASK) a Legal Aid and Human Rights NGO, that
there should a monitoring system under the auspices of the Ministry
of Social Welfare.
Does
law works as a stick to stop domestic violence
In one hand law definitely holds the societal perception of right and
wrong. It acts like mirrors where what should be the guiding principles
of our life is reflected. But on the other hand a law if not carefully
enacted for societal changes will end up being an ornamental instrument
that may give us a pseudo satisfaction of having a good law for women,
but ultimately will fail to reach out to the monumental problem of domestic
violence.
Now what
to do then. I can write down a number of points that needs to be done,
but the thing is the practice of seeing law in isolation and taking
it as the sole life saver in a society driven by many complexities is
one limitation that must be dealt with. Liberating women seems to be
the in thing in the recent world. Lets hope this one will not be an
eyewash in the name of women. Sometimes it's better to change the practices
and attitudes first rather than fighting for quick amendments in imperfect
laws. For when a law is passed in parliament it's very difficult to
change it afterwards, we wouldn't want to be part of the process that
made an imperfect law, do we? It's better to wait, assess our leanings
and then work for a law that will take into consideration the manifold
complexities of domestic violence.
Shohana
Shabnam is a legal researcher.
Sources: Ain O Salish Kendra
