Tag Archive for domestic violence

SC judgment on anti dowry law sparks protests from women’s groups

dowry-death-india

Women’s rights activists are outraged as Supreme Court directs the police not to make immediate arrests under section 498A

By Team FI
Sparking nationwide outrage from women’s rights activists, the Supreme Court of India on Wednesday ruled that Section 498 (A) of the Indian Penal Code is used as “ weapon rather than shield by disgruntled wives” against the husband and his relatives.

The Apex court has further directed that the summary arrest on registration of the complaint must be stopped. Instead, the police must seek approval from a magistrate, stating good reasons for the need to arrest.

Section 498A of the Indian Penal Code was enacted in 1983 following a large number of dowry related murders where brides were murdered (mostly by burning) for not bringing enough dowry to the husband’s household as part of the marriage. Section 498A is a non- bailable offence and it protects women from being subjected to harassment and cruelty by her husband and his family.

After the introduction of the 498(A) several women came forward to lodge complaints of harassment against their husband’s relatives. The dowry demands were often accompanied by physical and mental violence. In these cases arrests following complaints were useful to stop the physical abuse. Indeed in the face of considerable societal consent and toleration both of dowry related torture and torture of women in the home, that these provisions of immediate arrest were found useful.

The judgment was delivered by Justice Chandramauli Kr. Prasad and Justice Pinaki Chandra Ghose in petition filed by Anresh Kumar. “The fact that Section 498-A is a cognizable and non-bailable offence has lent it a dubious place of pride amongst the provisions that are used as weapons rather than shields by disgruntled wives. The simplest way to harass is to get the husband and his relatives arrested under this provision” states the judgment.

“It is a terrible judgment that takes the clock back over four decades” says Kavita Srivastava of People’s Union for Civil Liberties (PUCL). Kavita Srivastava demands that the Bihar government should move a curative petition challenging the judgment.

The court has also issued a set of directions to the state and the Police ‘to prevent unnecessary arrest and causal and mechanical detention.” The directions are:

a) All the State Governments to instruct its police officers not to automatically arrest when a case under Section 498-A of the IPC is registered but to satisfy themselves about the necessity for arrest under the parameters laid down above flowing from Section 41, Cr.PC;

b) All police officers be provided with a check list containing specified sub- clauses under Section 41(1)(b)(ii);

c) The police officer shall forward the check list duly filed and furnish the reasons and materials which necessitated the arrest, while forwarding/producing the accused before the Magistrate for further detention;

d) The Magistrate while authorising detention of the accused shall peruse the report furnished by the police officer in terms aforesaid and only after recording its satisfaction, the Magistrate will authorise detention;

e) The decision not to arrest an accused, be forwarded to the Magistrate within two weeks from the date of the institution of the case with a copy to the Magistrate which may be extended by the Superintendent of police of the district for the reasons to be recorded in writing;

f) Notice of appearance in terms of Section 41A of Cr.PC be served on the accused within two weeks from the date of institution of the case, which may be extended by the Superintendent of Police of the District for the reasons to be recorded in writing;

g) Failure to comply with the directions aforesaid shall apart from rendering the police officers concerned liable for departmental action, they shall also be liable to be punished for contempt of court to be instituted before High Court having territorial jurisdiction.

h) Authorising detention without recording reasons as aforesaid by the judicial Magistrate concerned shall be liable for departmental action by the appropriate High Court.

i) We hasten to add that the directions aforesaid shall not only apply to the cases under Section 498-A of the I.P.C. or Section 4 of the Dowry Prohibition Act, the case in hand, but also such cases where offence is punishable with imprisonment for a term which may be less than seven years or which may extend to seven years; whether with or without fine.

j) We direct that a copy of this judgment be forwarded to the Chief Secretaries as also the Director Generals of Police of all the State Governments and the Union Territories and the Registrar General of all the High Courts for onward transmission and ensuring its compliance “

Copy of the judgment

Featured photo courtesy: Zubaan Books

Tackle root causes of violence against women, UN rapporteur

Rashida Manjoo

Report of Rashida Manjoo, Special Rapporteur for the United Nations urges India to end the culture of impunity and the inequality and discrimination so as to eliminate violence against women in India

By Team FI

Rashida Manjoo, Special Rapporteur for the United Nation for violence against women, its causes and consequences, in the conclusive statement of her fact-finding mission in India, stated that violence against women was both a cause and consequence of de facto inequality and discrimination.

Mandated by the Human Rights Council to gather information on the causes and consequences of violence against women and recommend measures to eliminate the same, Manjoo urged the Government of India to link the violence against women with the “other systems of oppression and discrimination prevalent within societies.” In her statement delivered on May 1st 2013, Manjoo pointed out that creating legislations and policies alone will not bring about the needed change, “if it is not implemented within a holistic approach that simultaneously targets the empowerment of women, social transformation, and the provision of remedies that ultimately address the continuum of discrimination and violence, and also the pervasive culture of impunity.”

In her mission in India, Manjoo held meetings in New Delhi, Rajasthan, Gujarat, Maharashtra and Manipur, and gathered information from other states, including Tamil Nadu. She met with civil and human rights activists, representatives of state and centre authorities, human rights institutions and United Nation agencies and shared the experiences of individual women who suffered from the loss of their human rights.
Manifestations of Violence.

Manjoo described the various manifestations of violence against women as per the information gathered as sexual violence, domestic violence, caste-based discrimination and violence, dowry related deaths, crimes in the name of honour, witch-hunting, sati, sexual harassment, violence against lesbian, bisexual, and transgender people, forced and/or early marriages, deprivation of access to water and basic sanitation, violence against women with disabilities, sexual and reproductive rights violations, sex selection practices, violence in custodial settings and violence in conflict situations, among others.

The statement also recognised information about the forms of violence experienced by women with disabilities “including sexual violence, forced sterilization and/or abortions and forced medication without their consent. In addition, their experience of discrimination, exclusion and marginalisation reinforces the need for greater attention and specificity.”

“One interlocutor described violence against women and girls as functioning on a continuum that spans the life-cycle from the womb to the tomb,” said Manjoo. She stated that these manifestations are strongly linked to women’s social and economic situation, and the deeply entrenched norms of patriarchy and cultural practices linked to notions of male superiority and female inferiority. “The current focus by state actors on preserving the unity of the family is manifested in the welfare/social approach and not in the human rights based approach. It does not take into consideration the nature of relationships based on power and powerlessness; of economic and emotional dependency; and also the use of culture, tradition and religion as a defence for abusive behaviour,” informed the statement.

While she welcomed the Centre’s speedy response after the Delhi rape incident in the appointment of the late Justice Verma committee, she regretted that the new amendments did not fully reflect the Verma Committee’s recommendations. Describing it as unfortunate, she stated that this was an opportunity was lost that could have addressed the de facto inequality and discrimination of women. “This development foreclosed the opportunity to establish a holistic and remedial framework which is underpinned by transformative norms and standards, including those relating to sexual and bodily integrity rights. Furthermore, the approach adopted fails to address the structural and root causes and consequences of violence against women,” said the statement.

Though the Protection of Women from Domestic Violence Act is a positive development, Manjoo pointed out that one of the recurring complaints availed to her was the discrepancy between the provisions of the laws and its effective implementation. “Despite provisions intended to offer legal, social and financial assistance to victims, many women are unable to register their complaints. Furthermore, prevention of violence, as a core due diligence obligation of the State, does not feature in the implementation of this law,” the statement said.

She reiterated that despite the recent amendments, “the unfortunate reality is that the rights of many women in India continue to be violated, with impunity as the norm, according to many submissions received.” Manjoo stated that women experience violence not just in situations of conflict, post-conflict, and displacement but also in situations of peace. “The denial of constitutional rights in general, and the violation of the rights of equality, dignity, bodily integrity, life and access to justice in particular, was a theme that was common in many testimonies,” she said.
Conflict-related Sexual Violence.

The statement also said that it in relation to conflict- related sexual violence, it was crucial to acknowledge that violations are perpetrated by both state and non-state actors. She pointed out that the Armed Forces (Special Powers) Act and the Armed Forces (Jammu and Kashmir) Special Powers Act (AFSPA) has mostly resulted in impunity for human rights violations broadly. “In the testimonies received, it was clear that the interpretation and implementation of this act, is eroding fundamental rights and freedoms – including freedom of movement, association and peaceful assembly, safety and security, dignity and bodily integrity rights, for women, in Jammu & Kashmir and in the North-Eastern States.” She said that it was unfortunate that peaceful and legitimate protests often elicited a military response.

The statement recognized that the victimization of women from the Dalit, Adivasi, other Scheduled castes, tribal and indigenous minorities. “Their reality is one where they exist at the bottom of the political, economic and social systems, and they experience some of the worst forms of discrimination and oppression – thereby perpetuating their socio-economic vulnerability across generations.”

Manjoo heard anguished stories of young women disappearing without a trace in Manipur. The police she was informed are generally apathetic and are likely to put the cause as elopement. However Manjoo expressed concern that these disappearances could be linked to sexual abuse, exploitation or trafficking.

“Generally tribal and indigenous women in the region are subjected to continued abuse, ill-treatment and acts of physical and sexual violence. They are denied access to healthcare and other necessary resources, due to the frequency of curfews and blockades imposed on citizens,” the statement informed.

Testimonies also highlighted child marriages and dowry-related practices, sorcery, honour killings, witch-hunting of women, and communal violence perpetrated against cultural and religious minorities. On the issue of communal violence, the statement remembered the women “who were beaten, stripped naked, burnt, raped and killed because of their religious identity, in the Gujarat massacre of 2002.”
Manjoo also expressed concern over the declining female sex ratio in India. “The implementation of (government) interventions is resulting in the policing of pregnancies through tracking/surveillance systems and is resulting in some cases in the denial of legal abortion rights, thereby violating the sexual and reproductive rights of women,” she said.

Workplace violence
The Special Rapporteur’s statement also marked the widespread sexual violence and harassment “perpetuated in public spaces, in the family or in the workplace. There is a generalized sense of insecurity in public spaces/amenities/transport facilities in particular, and women are often victims of different forms of sexual harassment and assault.”

The statement expressed dismay at the numerous violations faced by female domestic workers including sexual harassment by their employers. “Many of them, often migrant and unregistered women, work in servitude and even bondage, in frequently hostile environments; performing work that is undervalued, poorly regulated and low-paid,” said Manjoo.

Conclusion
The statement concluded with several recommendations which included the ones from human rights organisations.

The negative effect of personal status laws on the achievement of overall gender equality (CRC, CCPR, and CEDAW) was noted with the statement that such laws need to be reformed to ensure equality in law (CEDAW).
The statement has asked the government to ensure that all victims of domestic violence are able to benefit from the legislation on domestic violence. The Protection of Women from Domestic Violence Act and Section 498-A of the Indian Penal Code must be enforced effectively (CESCR).

The statement recommended the repealing of the Armed Forces (Special Powers) Act, the Public Safety Act and the National Security Act, and the Armed Forces (Jammu & Kashmir) Special Powers Act should be repealed, as it perpetuates impunity, and is widely used against Human Rights Defenders, .
The statement noted with grave concern the culture of impunity for violations of the rights of Dalit women, the failure to properly register and investigate complaints of violations against scheduled castes and tribes, the high rate of acquittals, the low conviction rates, and the alarming backlog of cases related to such atrocities. The statement expressed that the impact of mega-projects on the rights of women should be thoroughly studied, including their impact on tribal and rural communities, and safeguards instituted.

The statement exhorted the government to expedite the proposed Communal Violence (Prevention, Control and Rehabilitation of Victims) Bill, 2005 “with the incorporation of: sexual and gender-based crimes, including mass crimes against women perpetrated during communal violence; a comprehensive system of reparations for victims of such crimes; and gender-sensitive victim-centred procedural and evidentiary rules, and to ensure that inaction or complicity of State officials in communal violence be urgently addressed under this legislation.”

The comprehensive findings from Rashida Manjoo’s mission in India will be discussed in the report that will be presented to the United Nations Human Rights Council in June 2014.

Making a Case for Patriarchy

Domestic Violence

Karnataka High Court judge K Bhaktavatsala’s misogynistic comments during a divorce petition proceedings sets a dangerous precedent that would make laws such as the Domestic Violence Act ineffective

Padmalatha Ravi

‘If you can tolerate birth pangs, can you not tolerate the husband’s beatings’ reads the headline of a leading Kannada daily quoting Justice K Bhaktavatsala of Karnataka High Court’s observation while hearing a divorce petition. The wife had filed for divorce citing domestic violence as a reason.

The judge went on to say that in marriage “these kind of things happen and she should just move on”. He also referred to the Kannada actor Darshan’s case, where he was first arrested for domestic violence and then let go because the wife retracted the complaint, and said ‘see now they are living quite happily why can’t you learn from them.’

As per news reports, despite the facts – the description of domestic violence (the woman had bruises and boils all over her body) and the photographic evidence, the judge said that there was no merit in the case. It is not clear whether this was just an observation during the hearing or the words in the ruling denying the divorce. Either way, this was a disturbing remark. What was worse was the suggestion he made for the husband to take the wife and children out for a snack to sort it out. How different is this from the police officials who invariably end up brokering a compromise when a woman goes to file an FIR in a domestic violence case?

Though his recent observations have created uproar among women’s rights activists who are campaigning to remove him, with an online petition gathering steam, Justice K Bhaktavatsala is known for his patriarchal comments in divorce cases.  He had famously argued with a female lawyer that since she was single, she had no business arguing a divorce case. Reports quote him saying, “You are unfit to argue this case. You do not know real life….Family matters should be argued only by married people, not spinsters. You should only watch….You better get married and you will get very good experience to argue such cases.”

Justice K Bhaktavatsala

This is not the first time judges have made inappropriate remarks in divorce cases. Earlier in May, division bench judges in Bombay High Court observed that a ‘wife should be like goddess Sita who followed her husband Lord Ram.’ In this case the husband was filing for divorce because the wife was refusing to move with him to Port Blair, where he was being transferred on work.

There have been reports of family courts in general being a nightmare of humiliation for a woman seeking divorce. It is no secret that there have been systematic efforts to change the section 498(A) in order to ‘Save Indian families’. Every attempt to make the divorce process woman-friendly is termed as a new ploy to exploit men. The recent amendment to the Marriage Laws (Amendment) Bill has upset the conservative forces in the country. The amendment suggests that the woman will get a certain share in husband’s property post divorce.

Comments such as the ones given by Justice K Bhaktavatsala’s not only re-enforce patriarchy in the mainstream psyche but also give impetus for those arguing against the Domestic Violence Act. These comments have become a part of public record. If the presiding judges also decide that these laws are harmful to men or Indian families and hence deny divorce applications, they set a very dangerous precedent.

Padmalatha Ravi is based in Bangalore and works as an Associate Editor with www.Citizenmatters.in

Featured Image:  Trapped – Art by Sherrie Thai of Shaireproductions