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Analysing Domestic Violence from a Contemporary Feminist Perspective

Updated: May 18

Anjali Baskar, Nyayshastram

Introduction

Global estimates indicate that 30% of partnered women have experienced physical and/or sexual IPV[1]. India’s National Crime Records Bureau indicated the increase in violence against women from an average of 125 women each day to 160 in 2005[2]. The feminist movement broke down the root problem of domestic violence as the construction of a conservative society. Their focus shifted from family preservation to male domination, survival, mental illness, and family conflict. Feminists have initiated many methods to combat domestic violence since the 1980s, such as outreach and support work for women experiencing domestic violence, legal aid, refuge provision and campaigning for and against various legal reforms.


While the law was mainly focused on the violence of married women, these groups along with other women movements sought to address the issue of violence against single women alongside Intimate Partner Violence. They were also the pioneers in addressing violence against the LGBTQ+ community at local levels with contextual interventions. Centres for Indian feminism were the first to offer services like counselling and mediation, way before the family courts used ADR as a way to dispose of cases faster.


Feminist Intervention in Judicial Pronouncements

The feminist transplantation of small-scale feminist counselling and mediation practices was a direct consequence of feminist intervention and engagement, which led to the involvement of feminist movements in drafting the Act[3]. The PWDVA created a new post called the Protection Officer who acted as a link between the victims and the courts. The function of the PO was to help women approach the court and avail other relief services, which was termed as a “convergence model”. A Special Women’s Cell was created by the Ministry of Women and Child Development (MCDW) to work parallelly to this Act.


The solution to the lack of recourse for refugees who have faced domestic violence has been counselling and mediation by both State Governments and non-State actors. Counselling and mediation have been used interchangeably, but have different interpretations. Feminists have criticised the fact that counsellors coerce women into reconciling with violent partners and husbands even if the severity of the crime is high. They have claimed that the law works to reinforce patriarchy and violence and has failed as a tool to protect and empower women.


In the 2015 Jaya Sagade case, The Department of Women and Child Development, Maharashtra state issued a circular with regard to counselling/mediation under the PWDVA. The circular restricted the ambit of protection agencies by allowing them to do only 4 things: 1. inform the aggrieved woman of her rights, 2. help her access medical services and shelter homes, 3. enable her to file a case as an independent litigant or through a PO, 4. offer counselling or mediation only at the court’s direction and only after a case has been filed in the court.


This circular was challenged by a PIL which argued that the circular violated Articles 14 and 21 of the Constitution, being arbitrary and discriminatory in nature. Cases were referred to judges for mediation, and the services of counsellors and psychologists were not used at an optimal level, completely contradicting the fact that PWDVA provided feminist counselling services to prevent domestic violence explicitly.


The issue brought before the court was whether pre-litigation mediation and counselling was allowed under the Act. Feminists believed that the law cannot limit a woman’s freedom in terms of who and when she can approach for any type of counselling and/or mediation. In the author’s opinion, this circular was aiming to undermine the autonomy of the very organizations that brought the legislation into existence in the first place.


The Court ruled that pre-litigation mediation is allowed in other matrimonial disputes involving no violence, and guided that any settlement should be made in writing, clearly stating the terms of the settlement. And that any service provider at their discretion should file a Domestic Incident Report under Section 10 (2) of the PWDVA automatically in all cases (the meaning of this statement is unclear). The Court made an exception however and stated that joint counselling sessions should not be permitted in cases where the victim has suffered severe violence at the hands of the perpetrator.


Recent judgements are highly technical in nature, with regards to maintenance and the “prima-facie” nature of whether domestic evidence has taken place or not[4]. In Kamlesh Devi v. Jaipal & Ors.[5], the court held that a mere vague allegation was not enough to constitute domestic violence, as the petitioner and respondent did not live in the same house, and the respondents were rumoured to be neighbours. In Ajay Kumar v. Lata[6], the court stated that under Section 2 (q) of the PWDVA, which states that both the aggrieved wife or a woman in a relationship akin to marriage can file a complaint under the Act against the husband/male partner and his relatives if required.


Problems identified

One of the feminist critiques towards the Act is how the definitions of “aggrieved person” and “respondent” aren’t gender-neutral. Violence against women from marginalized communities as rape victims are not considered to be aggravated forms of the crime due to casteist and socio-political reasons, despite demands by intersectional feminists[7]. The law does not provide for protection against violence from those who are in homosexual or polyamorous relationships. In the case of S. Khushboo v. Kanniammal & Anr.[8], the Supreme Court specified that a live-in relationship is permissible only in unmarried persons of major age in heterosexual relationships, even though this restriction has not been mentioned explicitly in the PWDVA Act[9]. In Samar Ghosh v. Jaya Ghosh[10], mental cruelty was considered to be an unexhaustive list. The author’s opinion with reference to the observations made by the court in this case was that a wife refusing to cook even if she cooks for herself isn’t “cruelty” and doesn’t amount to violence. There is a struggle identified here between letting go of paternalistic and protectionist views and the enforcement of heteronormative matrimonial obligations.


Existing government officials are appointed to do the job of Protection Officers without any special training at the local level. Due to the lack of expertise, they don’t know how to deal with situations, and therefore duties under the Act are left unfulfilled. Victims of violence and feminists then start losing faith in the law as a result. Despite the Act stating that there should be an adequate amount of shelter homes in each district, not even one is found across many districts. This could be due to the fault in budgetary allocation by the government.

Conclusions and Suggestions

An earlier report in 2010[11] suggested that a policy can be successful only when it takes local needs into account. MCWD should monitor the allocations made under the Flexible Pool under the National Rural Health Mission and make sure states have enough funds as per their requirements. This was a failure because states were not given enough flexibility in drawing up their plans, otherwise, this model would have only a limited impact, despite warnings.


The Jaya Sagada judgement was appreciated by feminists because it did not encourage victims to go back to the abuser for reconciliation to protect the “sanctity of marriage”. Feminists argue that the institution of marriage has been entrenched in patriarchy, and often supports the abuser. The feminist model states that violence and gender-specific crimes have been to dominate a person in a weaker position. The author proposes that counselling is a good way to make the conversation more victim-centric and sheds light on society’s role in shifting to more progressive opinions.


When we look at the current situation under the COVID-19 pandemic, the National Commission for Women and many other women’s rights collectives have been busy due to the rise in domestic violence cases because of the lockdown. This goes to show that no matter the evolution in judicial pronouncements and amendments of statutes at the hand of the legislature, policy recommendations are futile if not implemented at the grass-root level. Despite various directions by different High Courts at Allahabad and Bombay, the only solution to this rise during social distancing is government helplines and counselling centres[12]. The author realises that e-counselling may become the norm in the future, but the problem to tackle would be the lack of digital access to women in rural areas.


Implementation of the PWDVA is a policy recommendation arising from the demands of the feminist movement, but the inclusion of homosexual relationships and broadening the ambit to make laws more gender-neutral would also align with the Indian feminist movement as well. The Act should also include relationships where the couples aren’t currently in co-habitation with each other[13]. Thus, feminist responses to violence against women are hybrid in nature, incorporating legal reforms and counselling. The Western feminist movement has encouraged defunding of the existing domestic violence policing systems that does more harm than good to domestic violence victims[14].


Law has thus used many ideas and solutions offered by the feminist movement and takes into account non-law experts like psychologists and counsellors to make a difference, but there is a long way to go as some demands of the feminist movement have not been yet realised.

___________

[1] Sophie Namy et al., 'Towards a feminist understanding of intersecting violence against women and children in the family' [2017] 184 (184) Social Science and

Medicine <https://doi.org/10.1016/j.socscimed.2017.04.042> accessed 15 August 2020.

[2] Ravneet Kaur and Suneela Garg, 'Addressing Domestic Violence Against Women: An Unfinished Agenda' [2008] 33 (2) US National Library of Medicine National Institutes of Health <http://dx.doi.org/ 10.4103/0970-0218.40871> accessed 13 August 2020.

[3] Gopika Solanki and Geetanjali Gangoli, 'Defining Domestic Violence and Women’s Autonomy in Law' [2016] 12 (1) Socio-Legal Review <http://docs.manupatra.in/newsline/articles/Upload/FE356E56-891D-4929-BFCA-031146FFC70E.pdf> accessed 15 August 2020.

[4] Parth Thummar, 'In Domestic Violence Case, Court Should Prima Facie Be Satisfied Of Violence Before Issuing Notice In Complaint: SC' (Law Street Journal, Jan 23) <https://lawstreet.co/judiciary/domesticviolence-supremecourt> accessed 15 August 2020.

[5] Kamlesh Devi v. Jaipal & Ors., Special Leave Petition (Criminal) 9320 of 2019.

[6] Ajay Kumar v. Lata alias Sharuti [2019] SCC OnLine SC 726.

[7] Debolina Dutta and Oishik Sircar, 'India's Winter of Discontent: Some Feminist Dilemmas in the Wake of a Rape' [2013] 39 (1) Feminist Studies <https://www.jstor.org/stable/23719318> accessed 15 August 2020.

[8] S. Khushboo v. Kanniammal & Anr., SLP (Crl.) No. 4010 of 2008.

[9] Malavika Ravi, 'Everything You Need To Know About The Domestic Violence Act (PWDVA), 2005' (Feminism in India, 13 September 2016) <https://feminisminindia.com/2016/09/13/domestic-violence-act-india-pwdva/> accessed 15 August 2020.

[10] Samar Ghosh v. Jaya Ghosh, [2007] 4 SCC 511.

[11] Bhumika Jhamb, 'The Missing Link in the Domestic Violence Act' [2011] 46 (33) Economic & Political Weekly 45-50.

[12] Petlee Peter, 'Domestic violence calls up from 10 to 25 a day during lockdown in Bengaluru'Jessica Pishko, 'The Defund Movement Aims to Change the Policing and Prosecution of Domestic Violence' (Type Investigations, 28 July 2020) <https://www.typeinvestigations.org/investigation/2020/07/28/the-defund-movement-aims-to-change-the-policing-and-prosecution-of-domestic-violence/> accessed 15 August 2020.

[13] Abhaya Tatavarti, 'India’s Domestic Violence Laws Don’t Protect Couples Who Live Apart, Leaving Them Vulnerable and Stigmatized' (The Swaddle, 11 Jun 2020) <https://theswaddle.com/indias-domestic-violence-laws-dont-protect-couples-who-live-apart-leaving-them-vulnerable-and-stigmatized/> accessed 15 August 2020.

[14] Jessica Pishko, 'The Defund Movement Aims to Change the Policing and Prosecution of DomesticJessica Pishko, 'The Defund Movement Aims to Change the Policing and Prosecution of Domestic Violence' (Type Investigations, 28 July 2020) <https://www.typeinvestigations.org/investigation/2020/07/28/the-defund-movement-aims-to-change-the-policing-and-prosecution-of-domestic-violence/> accessed 15 August 2020.

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