Image reproduced with the permission of Shalu Nigam
After a long wait, the National Crime Record Bureau of India has recently published its report pertaining to crimes in India in 2017. According to this report, 104,551 cases have been filed under section 498A IPC, a criminal law dealing with `cruelty’ against married women by their husbands and in-laws. A further 7,466 cases have been registered under section 304B, which pertains to dowry deaths, while 10,189 cases have been registered under the Dowry Prohibition Act, a law that bans the giving and taking of dowry. In addition, 5,282 cases have been registered for abetment of suicide among women and 616 cases have been registered under the Protection of Women Against Domestic Violence Act, for breaching the civil orders granted under this law in favor of the victims of domestic violence.
The NCRB report further indicates that the conviction rate was as low as 9.5% under section 498A cases in 2016, but which rose to 15.9% in 2017. In cases pertaining to dowry deaths, the conviction rate is 41.1% in 2017. These figures indicate that majority of women who knock on the doors of the court are not receiving justice. Compounding this, violent men are being acquitted by the courts.
This data shows that a large number of women are not safe in their own homes. They are being physically and psychologically assaulted, verbally and emotionally tortured, discriminated, sexually harassed, murdered, forced to commit suicide and attacked in numerous ways. Serious complaints of violence are normalised and trivialised, framed as ‘disputes’ or `ego tussles’. Myths and misogyny operate in society and the courtrooms alike to deny justice to women survivors of violence.
The role of the Supreme Court
Despite the fact that a large number of women are approaching the police and the courts with their complaints of violence within homes, police are rarely arresting violent men and the courts are failing to hold them accountable. In some instances, the courts are actually making the problem worse. For example, in 2014, the Supreme Court decided the matter of Arnesh Kumar v State of Bihar. It delivered a sweeping statement that section 498A, a criminal law provision relating to domestic violence, is being ‘misused and abused by disgruntled women’ and directed for the dilution of the provisions relating to the arrest and bail of accused persons.
Then, in 2017, in Rajesh Sharma v State of UP the Supreme Court passed a directive to police and magistrates that no arrests were to be made or coercive actions taken without ascertaining the veracity of the complaints lodged under section 498A. It suggested the formulation of Family Welfare Committees to scrutinise every complaint of domestic violence to ensure that no ‘false cases’ were registered. Without examining the on-the-ground realities, the court concluded that the law is misused by ‘vengeful’ women, and saw men as victims of this ‘cruel’ law. While himpathising (a term coined by Kate Manne) with the accused persons, the bench remarked that there was “violation of human rights of innocents”. In contrast, no compassion is shown towards the women who are abused, abandoned, burned, murdered, killed, raped and brutalised.
However, after protest by several women’s organizations and petitions filed in the Supreme Court, the Court heard the matter of Social Action Forum for Manav Adhikar v Union of India in 2018. It ordered the Family Welfare Committees be done away with, while retaining the provision relating to arrest and bail for the accused persons. Even earlier, the Law Commission and several other state institutions too, have recommended the dilution of the domestic violence laws.
The legal system provides a platform for women to raise their concerns; however, there is a lack of commitment in implementation. Over the years, concerted actions have been taken by state actors to dilute the provisions of law. The system is being manipulated to serve the logic of the patriarchy, protecting the interest of the dominant group while reinforcing the prevailing biased stereotypical norms. The state more broadly is treating domestic violence as a social crime and using manipulative tools –including mandatory mediation – designed to compel women to arrive at a ‘compromise’ or ‘settlement’ with the accused persons without any assurance for their safety (and that of their children), and without punishing the abusive men. In many other cases pertaining to domestic violence, dowry deaths and suicide by married women, the courts have granted immunity to violent men by placing weight on the principle of ‘family harmony’, and in the process, disregarding the constitutional rights of women as citizens.
We, the Women, are Warriors and We Will Persist!
Yet the survivors, who may be seen as powerless and vulnerable, through their sheer grit, are demanding justice, breaking the codes of prolonged imposed silence, shaking the system and forcing it to respond. They are not feminists or experts but they are everyday women who, with their own sense of justice, and with scant resources or little support, are seeking a violence-free life for themselves and their children. They are fighting battles not only against abusive men but also against the patriarchal structures within homes, misogyny in courts, and androcentric culture and sexism in society. In doing so, they are reclaiming ownership of their lives with persistence, courage and resilience.
The law is currently implemented in a way that means complainants are being revictimised in the process. Despite this, women are using the law to reclaim their rights and resist violence. Those who are registering their complaints are negotiating their rights and contesting their claims while challenging the stubborn patriarchy. While writing their own stories of emancipation, they are shifting the inegalitarian structure within families, creating democratic spaces within society and – in fighting to seek freedom, or aazadi, from violence – they are demanding the recognition of their dignity.
For the state, as well as national and international organisations working on the issue of violence, it is essential to focus on women’s autonomy and agency in a patriarchal society and to provide support measures that help them to attain socio-economic self-sufficiency while countering ingrained misogyny. Many women are compelled to stay and bear violence because they lack any other options. There is therefore a need to create a mechanism whereby women can access support that is specific to their circumstances. Until then, through their tough persistent legal and social battles, the simple message women are giving is this: “We, the women warriors, are unstoppable; unless violence is eliminated, we will persist”.
Shalu Nigam (@ShaluNigam) is an advocate, researcher and an activist working at the intersection of gender, law, governance and human rights issues. She is currently practicing at the courts in Delhi and is associated with the People’s Union for Civil Liberties, Delhi, Indian Social Institute, Delhi, as well as the Centre for Women’s Development Studies, Delhi. She was awarded a Senior Fellowship by the Indian Council for Social Science Research, Delhi. She has published several books, the recent one is Women and Domestic Violence in India: A Quest for Justice. She has been a regular contributor to countercurrents.org and has published her essays in journals such as the Indian Journal of Gender Studies, South Asia Journal, Social Action, International Journal of Gender and Women’s Studies, Women’s Link, Legal News and Views among others. You can read some of her work here and here