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July 25, 2004

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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


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