Recent statistics show an increase in domestic violence cases in India. This is despite the enactment of so many laws and statutes for the protection of women from domestic violence in India.
How far are social and religious conditioning responsible for the misogynist attitude towards women in Indian society?
In this article, we shall attempt to seek some historical, sociological, religious, and jurisprudential answers to the questions of domestic violence in India. Read this to learn more about domestic violence in India.
Domestic Violence in India
In India, the definition of domestic violence and domestic relationship under the Protection of Women from Domestic Violence Act 2005 (PWDVA) is very wide and the latter has been interpreted by the Supreme Court to include in its ambit even live-in relationships.
Barring marital rape which still remains non-penalized in India, the term domestic violence covers all kinds of physical or mental harm inclusive of any kind of physical, sexual, mental, verbal, economic, and emotional abuse to an aggrieved person (within a domestic relationship) resulting from any act of commission or omission by the respondent.
In order for an act to constitute domestic violence, it is not necessary that the aggrieved person should have actually suffered the harm but it is sufficient if she has been endangered with such harm or abuse by the respondent.
However, the act envisages only women as aggrieved persons and not men ie it does not provide any relief to men who are victims of domestic violence.
Similarly, the act excludes women from the definition of the respondent which has been defined as an adult male person who is or has been in a domestic relationship with the aggrieved person and against whom the aggrieved person has sought any relief under the PWDV Act.
This was done primarily to prevent unfair victimization of women and to prevent misuse of the law given the peculiar social conditions and inherently patriarchal setup of Indian families which often label women as guilty.
Some ambiguities regarding definitions were cured by the Supreme Court in the case of Harsora v Harsora in 2016.
Stakeholders of Domestic Violence in India
Stakeholders of domestic violence in India include all individuals and entities who are affected by acts of domestic violence.
They include the aggrieved person, her family members, her well-wishers, the respondent, his family members, his well-wishers, society, and the state.
It has been found that domestic violence has short and long-term physical, mental, and phycological ramifications not only for the aggrieved person but also for others around her.
It also affects the overall well-being of the community. Social and community cost of domestic include costs of services (health, social, justice) incurred by victims and families, loss of workplace productivity, costs to employers, and most importantly the perpetuation of violence and its normalization in many cases.
Opinion of Feminist Scholars
Feminist scholars view domestic violence not as random and sporadic acts of physical and mental abuse in a family or any domestic relationship but portray it as a systematic and deliberate act of patriarchal violence being committed on women for thousands of years in order to control her autonomy and subject or tame her to the authority of men.
Some Feminists even object to the use of the word “domestic” as a prefix to the word violence as the term makes the violence seem like an intimate and private matter and hence they vehemently stress the use of patriarchal violence to define such kind of systematic abuses and violence being committed on womankind for centuries.
Do Social and Cultural Norms justify Domestic Violence in India?
Several religious scriptures promote and entrench crude stereotypes related to women.
Even ancient Hindu-Brahmin scholars of high repute like Chanakya referred to women as deceitful entities and did not hesitate in sexually objectifying her.
For instance, in Chapter 7, verse 11 of Chanakya Niti, he says- “The power of a king lies in his mighty arms; that of a brahmana in his spiritual knowledge; and that of a woman in her beauty youth and sweet words.”
The Ramcharitmanas written by a Brahmin named Tulsidas in 16th century is often recited in North India.
A verse in this book allegdelly compares women with drums, fools, lower classes, and animals that require a constant beating.
Does Patriarchy Normalises Domestic Violence in India?
The perpetuation of violence on womankind has also been achieved and entrenched by various other gross, subtle, sophisticated, and barbaric techniques all intended to restrict her autonomy and free will.
In addition to the demonization, subjugation, and suppression of women through religions, Feminists also question certain cultural practices specific to women. They view it as means to control and subjugate them.
It may sound preposterous but they allege that women are decked in heavy jewelry and uncomfortable clothing so that they do not run fast.
They allege further that the aim of making her fast on so many religious occasions is intended to deprive her of the physical and psychological strength to challenge men.
However, such cultural practices are not endemic to India alone. Such social and cultural practices can be observed in other cultures and in other parts of the world as well.
In certain communities, they even go to the extent of female genital mutilation with the aim of controlling women’s sexuality and desires.
Many other religions also perpetuate violence and subjugation of women at least in practice if not in theory.
The history of India is ripe with much more horrendous acts of violence against women. These include the Sati system where women were burnt alive on the funeral pyre of their husbands.
Thankfully many such cruel and degrading practices regarding women were gradually brought to an end by the Mughal and colonial dispensations. After Independence, the government enacted several legislations for women’s welfare and empowerment.
These include the enactment of many progressive statutes like the Hindu Marriage Act 1955, Dowry Prohibition Act 1961, Domestic Violence Act 2005, etc which granted certain rights to Hindu women and were aimed at progressive upliftment of womankind.
However, the violence against women still persists in India and other parts of the world. While some reports provide that the rate of domestic violence in India is one of the lowest in the world, others provide that India is the most dangerous country for women in the world.
According to a National Crime Records Bureau report, over 90,000 cases related to crimes against women were registered in 2018 alone. Domestic violence topped the list of categories of violence against women in India.
India also suffers from less reporting of such incidents compared to western countries.
Jurisprudential Analysis of Domestic Violence in India
Most jurists and legal philosophers would condemn domestic violence of any kind on the pretext of liberty, equality, and other invaluable rights that all human beings possess and are entitled to without any exclusion based on any morally arbitrary criteria such as race, caste, color, gender, etc.
Immanuel Kant offered a radically different idea of duty and rights which is dependent not on the idea of self-ownership or on nature but is based on the premise of dignity and respect which all human beings possess on account of being rational beings.
Kant’s notion of dignity and respect is aligned with the Universal Human Rights and Universal Declaration of Human Rights (UDHR) which in its various provisions asks states to bring an end to all kinds of violence directed against women.
The same is echoed in various other UN treaties and conventions such as ICCPR, ICESCR, UN Declaration on Violence Against Women, and most importantly the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) 1981.
Kant explains freedom by the contrast of autonomy versus heteronomy and he says that true freedom lies in the former and not the latter.
The criteria of Kantian autonomy are very rigorous. A person can be said to be acting autonomously only if he acts according to a law that he has given to himself.
O the other hand, one acts heteronomously if one’s actions are determined by other factors and desires.
How Domestic Violence violates the Kantian idea of Freedom?
Since domestic violence has the effect of depriving the victim of her capability to act autonomously, it violates the Kantian idea of freedom.
Secondly, it also violates the Kantian idea of negative obligation which is owed by one person to another and under which one is required not to hurt others and use them as means for his/her benefit.
Kant vigorously vouches for negative obligations because unlike positive obligations, they can be universalized and do not involve the commitment of resources.
Thirdly and most importantly it violates the Kantian maxim of the categorical imperative (of not using instrumental reason) which advocates treating Human beings as an end in themselves and further enjoins not to treat them as a means to achieve some other ends.
In the case of domestic violence, the victim ends up being used as a means for the perpetrator to achieve his/her desired end which might be anything ranging from dowry demands to patriarchal subjugation or anything else.
Domestic Violence and John Rawls Theory of Justice
Domestic violence also impinges on the liberty of an individual who is generally a woman in most cases. This impingement of liberty violates the first principle of justice formulated by John Rawls in his theory of Justice.
The first principle of John Rawls is the principle of liberty which endows everyone with the most extensive form of liberty consistent with the similar liberty of others.
Rawls furthers provides that this liberty is not to be curtailed ordinarily but has to be curtailed for the sake of liberty itself in order to ensure its continued operation.
But in the case of domestic violence, the liberty of the victim is curtailed by the perpetrator (whether male or female) by systematic or sporadic acts of violence and abuse with the intention of asserting one’s dominance over another or any other like motive. Since this restriction is not for the sake of liberty, it is not justified.
Also Read: John Rawls Theory of Justice: How Just and Fair?
Conclusion
There are many stakeholders of domestic violence and they include all individuals and entities who are affected in one way or another by the acts of domestic violence.
These individuals and entities include victims, perpetrators, their families, society, and the state. Since the state has been entrusted with the task of securing the safety, liberty, and well-being of individuals and society as a whole, it is its prime responsibility to prevent such violence from occurring, and if they occur then provide for a suitable mechanism of redressal to remedy such situations.
In the case of India, though the state has enacted legislation on domestic violence it has been found ineffective due to various reasons including the deeply rooted misogyny and patriarchy in the Indian society that views women with suspicion and skepticism.
All this can be cured not just by enacting laws but by other means including the exercise of the soft power of the state to mold people’s beliefs which are against the values of universal human rights (enshrined in the constitution) and which impinges on liberties, freedoms and dignified life of others.
The laws on domestic violence should not only provide temporary relief but should also ensure a long-lasting solution to this grave social evil and malpractice rampant in our society.
As far as laws on domestic violence in India are concerned, they are not fully inclusive and comprehensive. Most laws on domestic violence cater to the needs of only female victims of domestic violence and even, in that case, exclude marital rape which is a grave incursion on liberty, privacy, and dignity of an individual.
In such a scenario, the law on domestic violence in India is yet to fulfill the Kantian requirement of viewing human beings as an end in themselves and not as means. Its exclusionary character also violates the Rawlsian concept of liberty.
