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Published : June 09, 2015 | Author : Rajyashri B
Category : Criminal law | Total Views : 2476 | Rating :

  
Rajyashri B
Associate Advocate, SNG & Partners
 

Feminist Criminology And Integrated Theory

All men are rapists and that's all they are. (Marilyn French)

Feminist criminology contains many branches. Liberal, radical, Marxist, and socialist feminism are widely recognized, although other "strands" exist such as postmodernism and ecofeminism. Most feminist criminology involves critiques about how women offenders have been ignored, distorted, or stereotyped within traditional criminology, but there is no shortage of separate theories and modifications of existing theories. Almost all women criminologists or criminologists of women who examine gender and crime have addressed the "gender ratio" problem (why women are less likely, and men more likely, to commit crime). Others study the generalizability problem (whether traditional male theories can modified to explain female offending). Most feminists are quick to point out where stereotypical thinking and theoretical dead ends exist, although the main problem complained about in most criminology is the simple fact that gender matters and should not be ignored.

Liberal feminism operates within the existing social structures to draw attention to women's issues, promote women's rights, increase women's opportunities, and transform women's roles in society. Radical feminism looks at how women came to occupy subservient roles in the first place, what male power consists of, and how societies themselves can be transformed. Marxist feminism ties patriarchy or male privilege into the economic structure of capitalism, as when female offenders are sentenced for property or sexual crimes (by threatening male dominance of property relationships or male control of women's bodies). Socialist feminism offers ideas about more equitable roles for women as sex providers, child bearers, nursemaids, and homemakers, so that they can take their rightful place in society. Postmodern feminism substitutes language production for economic production and studies how discourse and male-dominated thinking is used to set women apart16.

History Of American Feminism

American feminism has its origins in the 1848 women's rights convention held at Seneca Falls, New York where a "Declarations of Sentiments and Resolutions" was passed. This first wave of feminism was anti-slavery oriented and wished for the emancipation of peoples everywhere who were being usurped and exploited. It ended in 1920 with passage of the 19th Amendment giving women the right to vote. Second-wave feminism started in the late 1960s and was called the "women's liberation movement", devoted to greater social, political, and economic equality. It focused on the emancipation of women and liberal correctives to the role of women in society. The third wave of feminism started in the late 1980s, devoted to an analysis of patriarchy, or the pervasiveness of male dominance. It was basically a critical or radical movement that looked into how society could be transformed.

Male Theorizing About Female Offenders

Masculine theorizing tends to be linear, rational, quick, certain, objective, and hierarchical. Feminine theorizing tends to be slower, intuitive, more circular, iterative, and tentative. Therefore, feminist criminology contains little by way of grand theories or confirmatory statistical analyses. The existing techniques for evaluating and assessing criminological theories may not apply to feminist criminology17. Nevertheless, there have been some interesting strands of thought in the criminology of female offenders, as follows:

Some Early (Stereotypical) Theories
Sigmund Freud's theory consisted of the idea that all women experience penis envy and suffer an inferiority complex over it, which they try to compensate for by being exhibitionistic and narcissistic. Freud thought that women were also basically irrational in that they weren't concerned with being builders of civilization, but with scanty, trivial matters. Freud thought, for example, that women don't have much of a sense of justice. Female crime was interpreted as longing for a penis. This is obviously a characterization of female criminals that feminists reject.

Cesare Lombroso in 1903 published The Female Offender which characterized short, dark-haired women with moles and masculine features as good candidates for becoming criminals. He thought criminal women were stronger than men, that they could handle pain better, and that prison would hardly affect them at all. This is also a characterization of the female offender that feminists reject.

W.I. Thomas in 1923 published The Unadjusted Girl which claimed that women committed crime out of wishes for excitement and new experiences. Women were seen as feeling confined under monogamy, and having a lot of pent-up sexual energy which was released in criminal acts. This notion is rejected by feminists.

Otto Pollak in 1950 published The Criminality of Women which characterized female offenders as sneaky, deceitful, vengeful, and unemotional. He claimed, for example, that they prefer professions like maids, nurses, teachers, and homemakers so they can engage in undetectable crime. He thought they were especially subject to certain mental diseases like kleptomania and nymphomania. This notion is also rejected by feminists.

Critiques of Traditional, Mainstream (Male stream) Theories
Social disorganization theory, which posits an environmental or subcultural tradition of criminal values that exist in an area, regardless of who lives in the area, is strongly criticized by feminists for only making parenthetical reference to women. Thrasher, a leading exponent of the social disorganization perspective, felt that girls and women committed less crime because they were more closely supervised by boys and men. This notion of patriarchal control forms the basis of at least one modern theory, called power-control theory by Hagan, Simpson & Gillis (1987), but the main feminist critique of the disorganization perspective involves the absence of qualitative, case-study research on the lives of women themselves.

Strain theories are criticized by feminists as betraying a double standard. Under strain theory, when a male offender commits a crime under certain conditions of opportunity blockage, their commission of crime is somehow seen as a "normal" or functional response. When women commit crime, strain theory views it as some sort of "weakness" which betrays the double standard. Naffine (1987) probably represents the best example of this critique, but there are other critiques, such as the characterization of females as "helpmates" or facilitators of crime in the strain theories of Cohen and Cloward and Ohlin18.

Learning theories, such as Sutherland's differential association theory, is primarily criticized by feminists for relying upon male examples, using case studies of males only, and being a male-dominated perspective that glamorizes the male criminal, or at least the sociable, gregarious, active, and athletic characteristics of the male criminal.

Control theories, such as Hirschi's social bond theory, is primarily criticized by feminists for focusing almost exclusively on social class at the expense of gender and race. Feminists tend to focus on gender, and the interaction of gender and race (women of color) as obdurate, hardened, near-group characteristics that have about the same causative influence as class.

Female Theorizing About Female Offenders

In 1975, two books, Freda Adler's Sisters in Crime and Rita Simon's Women and Crime proposed that the emancipation of women and increased economic opportunities for women allowed women to be as crime-prone as men. Simon also predicted that the criminal justice system would start treating men and women offenders equally. There is mixed empirical evidence for this emancipation or liberation thesis, and some would say that absolutely no empirical evidence exists for it and the notion is discredited (Chesney-Lind & Pasko 2004). Women are not committing the "big take" offenses (like stock fraud and other white collar crimes) men do. Instead, they are committing vastly different crimes than they did back in the 19th century (like poisoning). The chivalry thesis (that the criminal justice system treats women more leniently) also has produced mixed empirical results. In some ways, the system is more lenient; in other ways, it comes down more harshly. Sex differentials in sentencing are subject to a variety of interpretations, and not all feminists want the criminal justice system to treat women equally.

Studies of Patriarchy tend to look at everything from female membership in male-dominated professions to the "rape culture" with promotes female victimization. The study of patriarchy has allowed feminists to uncover hidden forms of violence (like leering) against women. Feminist critiques of pedagogy (how teachers teach) have also become quite common, as education, particularly criminal justice education, becomes the domain for discovering examples of male-dominated thinking and examples of the marginalization thesis (women being reminded that they are only women).

More Recent Female Theories
The role of extralegal factors in the administration of justice is a long-standing area of research. The bulk of studies have concluded that women are accorded more lenient treatment than men, however, whether this is a function of the lesser seriousness of the charges against them or something else remains unanswered. The most common hypotheses have involved the notions of chivalry and paternalism. Chivalry represents the idea that the criminal justice system puts women on a pedestal, and treats them like a protector. Paternalism is a more sinister view of the criminal justice system, that women are treated more childlike or mentally challenged. See Crew (1991) for a good review of how researchers have tried to separate the chivalry and paternalism factors.

Another area of research related to the study of chivalry and paternalism involves the evil woman hypothesis (Erez 1992), which involves a conception of female offenders processed by the system as being "unladylike" and violating gender-role expectations. Such offenders usually receive no leniency. Again, this approach, like Hagan's power-control theory, is a not-so-subtle variant of the liberation hypothesis.

Sex differentials are rarely statistically significant. This does not mean, however, that this area of study is not socially significant or meaningful in other ways. Research in this area does tend to shed light on extralegal factors (things that should not influence the justice system) as well as how systems of informal social control merge, mix, or influence formal system of social control. There is also the matter of finding a theoretical framework or model in which to do feminist scholarship in criminology. One of the problems is this last area is the seeming inability of such scholarship to find itself into refereed journals. Most feminist criminology is the subject of presentations at professional conferences or in venues other than the publication outlets that male criminologists use.

Statistics On Female Offenders

Reliable statistics on the extent of female crime are hard to come by. It is widely known, for example, that females usually account for about 15% or 17% of all violent crime and 28% of all property crime. However, there has been about a 140% increase in the number of crimes committed by women since 1970, and the upward trend is steady. Researchers typically track female offenders on FBI Part II offenses since they far outnumber men in two Part II categories: prostitution and runaway. However, they have significant numbers in embezzlement (41%), fraud (39%), forgery (36%), and larceny-theft (33%). For homicide, one of the most frequently-cited facts is a Justice Department study in 1991 which found females who were incarcerated for murder were twice as likely as men incarcerated for murder to have killed an intimate (husband, boyfriend, or child). Female serial killers also account for 8% of all American serial killers. Hickey's (2002) subsample of 62 females out of 399 serial killers found the following methods and motives19.

 

 

Methods Motives
1. Poison (80%)
2. Shooting (20%)
3. Bludgeoning (16%)
4. Suffocation (16%)
5. Stabbing (11%)
6. Drowning (5%)
1. Money (74%)
2. Control (13%)
3. Enjoyment (11%)
4. Sex (10%)
5. Drugs, Cult involvement, cover up, or feelings of inadequacy (24%)

Among female offenders, minorities compose a slightly larger percentage of the inmate population than among male offenders. Female offenders are also slightly older (by at least three years) than typical male offenders, and the average age of a female offender is 30 years of age. Only 28% of all female offenders are juveniles. Between two and three million female offenders are arrested every year, and 60% of them tell the police they have experienced physical or sexual abuse in the past. The vast majority of female offenders commit their crime alone, alcohol and drugs are involved most of the time, and the most common places where the crime occurs is near a tavern, at home, or in the workplace.

Female offenders are more likely to use their fists and feet when they assault somebody, as opposed to men who are more likely to use a weapon, the exception to this being use of a knife, which is about equally likely for men as it is for women.

Every year, about 11,000 children are killed by their parents, and mothers or stepmothers account for about half of these murders, actually slightly more than half (statistics vary from 53% to 57%). The most typical pattern is for a female offender to kill a child while the child is young or still an infant. When fathers or stepfathers murder their children, the child is typically age 8 or older. Here's a comparison table of who kills whom based on 1998 data:

 

Murderer

Victim Female Male
Spouse 28% 6%
Ex-spouse 2% 1%
Child 17% 8%
Boy/Girlfriend 14% 4%
Acquaintance 32% 55%
Stranger 7% 25%

 It is somewhat controversial, and indeed, a key research question, if female crime is more violent today than in the past (Chesney-Lind & Pasko 2004). Lest the reader get the impression that female offenders are strongly involved in violent crime, it is important to remember that they are much more heavily involved in property crime, followed perhaps by drug offenses and nuisance crimes, like prostitution. Larceny-theft is not only the most common crime in America, but it is the offense category in which female offenders predominate. Larceny-theft entails a variety of crimes characterized by the taking away of someone else's property. Examples of larceny-theft include shoplifting, credit card fraud, bad check writing (naive check forgery), price tag switching, welfare fraud, telemarketing fraud, con games, improper title transfers of property, real estate fraud, motor vehicle registration fraud, intellectual property theft, theft or false complaining about food, lodging, or services. In all these offense categories, female offenders are heavily involved, and qualitative research suggests that they typically see their behavior as an entitlement, habit, or way of life. In fact, almost all female crime is concentrated in just two offense categories: larceny-theft and drugs.

Concentration In Larceny-Theft And Drugs

Larceny-theft by women is composed first and foremost of arrests for shoplifting, and the study of shoplifting has a long legacy in criminology (Cameron 1953). Some estimates are as high as 80% of all shoplifters being women, and although men sometimes engage in shoplifting, women are far more likely to steal more items than men, steal items from several stores, and steal items of lesser value. Men shoplift by knowing what they want, coming in the store, and stealing it. Women shop around, and are often so mesmerized by the seductive properties of an object they see for the first time that they feel they have to steal it. Women tend to steal clothing, cosmetics, jewelry, and personal hygiene products, in that order. Both women and men are equally likely to steal something they don't really need, but women are more likely to steal necessities. Studies of modern shoplifting patterns among women (e.g. in Morris 1987) indicate that women may be more frequently caught for this offense simply because store detectives are on the lookout more often for women than men.

Embezzlement is the next most common type of offending in the larceny-theft category, and a good deal of this is bank embezzlement. 60% of women convicted of embezzlement were bank tellers. Pilfering or stealing from one's own employer is also quite common, and generally doesn't support the legal charge of embezzlement, but is counted as some type of fraud or business offense. Studies that have been done on female embezzlers (Zietz 1981) indicate that most are fairly careless or foolish in how they go about it, often forgetting to cover or disguise their tracks20.

With drug offenses, female offenders are much more likely to be arrested and charged with possession, as opposed to males, who are more likely to be charged with trafficking or intent to deliver. Likewise, with public order offenses, such as driving while intoxicated, where women are much more likely than men to receive probation. With nuisance offenses like prostitution, it depends upon the jurisdiction where there might be variable degrees of community tolerance. Finally, there are some interesting regional variations in female crime. States like Texas and California (followed by Florida, New York, Ohio, Illinois, Georgia, Louisiana, Oklahoma, and Michigan) tend to have inordinately large female offender populations. This may be because those states are tougher on female criminals, or there may be something in those regions that is associated with the causes of female crime. Women arrested for DUI tend to be older than men who are arrested for DUI, and the average age range for male DUI arrest is the mid-thirties. Women also tend to drink alone, for escapist reasons, and to deny treatment (Coles 1991). Any substance abuse counselor will tell you that there are significant gender differences in addiction and alcoholism. Women tend to rationalize their addiction in gendered ways with drugs being used as appetite suppressants (tobacco, cocaine, meth) or as refuge from strained family relationships (alcohol and marijuana). A body of research indicates that women are more likely to become polydrug users than men, and to be more ready to experiment with drugs such as heroin. Another line of significant research has looked at crack cocaine, and specifically the notion of "crack pipe as pimp" which means that an exploitative form of prostitution has been developed by men around women's addiction to crack cocaine. Men are to blame for developing the crack culture since men have discovered that crack is extremely good at reducing a woman's inhibitions. Harrowing stories of crack-for-sex abound in the literature.

Domestic Violence Against Women In India

In India where almost half of the population is women, they have always been ill-treated and deprived of their right to life and personal liberty as provided under the constitution of India. Women are always considered as a physically and emotionally weaker than the males, whereas at present women have proved themselves in almost every field of life affirming that they are no less than men due to their hard work whether at home or working places. Behind closed doors of homes all across our country, people are being tortured, beaten and killed. It is happening in rural areas, towns, cities and in metropolitans as well. It is crossing all social classes, genders, racial lines and age groups. It is becoming a legacy being passed on from one generation to another. But offences against women which reflects the pathetic reality that women are just not safe and secure anywhere. According to a latest report prepared by India’s National Crime Records Bureau (NCRB), a crime has been recorded against women in every three minutes in India. Every 60 minutes, two women are raped in this country. Every six hours, a young married woman is found beaten to death, burnt or driven to suicide.

Violence against women is not a new phenomenon. Women have to bear the burns of domestic, public, physical as well as emotional and mental violence against them, which affects her status in the society at the larger extent. The statistics of increasing crimes against women is shocking, where women are subjected to violence attacks i.e. foeticide, infanticide, medical neglect, child marriages, bride burning, sexual abuse of girl child, forced marriages, rapes, prostitution, sexual harassment at home as well as work places etc. In all the above cases women is considered as aggrieved person.

The term used to describe this exploding problem of violence within our homes is ‘Domestic Violence’. This violence is towards someone who we are in a relationship with, be it a wife, husband, son, daughter, mother, father, grandparent or any other family member. It can be a male’s or a female’s atrocities towards another male or a female. Anyone can be a victim and a victimizer. This violence has a tendency to explode in various forms such as physical, sexual or emotional. ‘Domestic Violence’ includes harms or injuries which endangers women’s health, safety, life, limb or well being, whether mental or physical. It may also be through physical, sexual, verbal, emotional and economic abuse.

According to ‘United Nation Population Fund Report’, around two-third of married Indian women are victims of Domestic Violence attacks and as many as 70 per cent of married women in India between the age of 15 and 49 are victims of beating, rape or forced sex. In India, more than 55 percent of the women suffer from Domestic Violence, especially in the states of Bihar, U.P., M.P. and other northern states.

What amounts to domestic violence against women? -Domestic Violence undoubtedly a human right issue where it is very important to know what actually leads to act of domestic violence. The most common causes for women stalking and battering include:- exploitation of women for demanding more dowry, discrimination of women, alienation of women’s self acquired property fraudulently, torture by husband and in-laws of the husband, arguing with the partner, refusing to have sex with the partner, neglecting children, going out of home without telling the partner, not cooking properly or on time, indulging in extra marital affairs, not looking after in-laws, cruelty by husband or in-laws mentally or physically, abusing & insulting by using vulgar language, sexual harassment, molestation, immoral traffic, rape, sodomy and all other inhuman acts. In all above stated causes women are subjected to torture and will be considered as the aggrieved person. Usually violence takes place due to lack of understandings between the couple as well as in the family.

The consequences of domestic violence attack on women, which will affect victim as well as family of the victim. Domestic Violence affects women’s productivity in all forms of life i.e. assaulted women will always get agonized and emotionally disturbed and remain quite after occurrence of the torment. The suicide case of such victimized women is also a deadly consequence and the number of such cases is increasing day by day. A working Indian woman may lose her efficiency in work or drop out from work in some cases. Domestic Violence may affect the life of children at the larger extent because child will be having greater attachment with her mother and once the mother’s grief and sufferings revealed then child may turn silent, reserved and express solace to the mother. In some of the cases violence will lead to maintain distance from the partner whereby sexual life gets affected adversely. Sometimes marriage life will become a burden to the spouse and one of the spouses will opt out for divorce or separation which again affects life of the children.

In a case where wife is beaten up by her husband doesn’t amount to domestic violence unless a sufficient reason of violation of right to life is shown. In another case where the women just not given food, it amounts to domestic violence if it is intended to achieve the ultimate purpose of necking her out of the benefits of shared household.

To prevent violence against women and to protect the rights of aggrieved women, the legislation ‘The Protection of Women from Domestic Violence Act, 2005’ was passed by the parliament. According to this act every women who have been deprived of their right to life by the act of husband or relatives of the husband, can file a complaint to the protection officer, police officer or magistrate in the form of ‘Domestic Incident Report’ (Similar to FIR). Complaint can be filed by the victim /aggrieved person or relatives, it will be considered as the prima-facie evidence of the offence. Every ‘Domestic Incident Report’ has to be prepared by the Protection Officer which will assist in the further investigation of the incidence. The protection officer will pass certain orders i.e. protection of the women, custody of respondent and order of monetary relief to the victim.

The Government of India should come out with some more stringent laws to protect the rights of women who are victims of violence of any kind occurring within the family, so that it will work as the preventive measure to eradicate the crime. A strict law to be passed to punish those women who are filing a false compliant against husband or relatives by misusing of Domestic Violence Act so that there will be fair justice to all.

Fighting the ‘Domestic Violence’ Evil
A recent study has concluded that violence against women is the fastest-growing crime in India. According to a latest report prepared by India’s National Crime Records Bureau (NCRB), a crime has been recorded against women in every three minutes in India. Every 60 minutes, two women are raped in this country. Every six hours, a young married woman is found beaten to death, burnt or driven to suicide.

The response to the phenomenon of domestic violence is a typical combination of effort between law enforcement agencies, social service agencies, the courts and corrections/probation agencies. The role of all these has progressed over last few decades, and brought their activities in public view. Domestic violence is now being viewed as a public health problem of epidemic proportion all over the world – and many public, private and governmental agencies are seen making huge efforts to control it in India. There are several organizations all over the world – government and non government – actively working to fight the problems generated by domestic violence to the human community.

Violence against women is a centuries-old phenomenon that has been perpetrated in the name of religion, social customs and rituals. The violence may manifest itself in different forms, like child marriage, witch-hunting, honour-killing etc. Many a time violence against women is due to defiance of the stereotyped role model of daughter, sister, wife and mother and, of course, as daughter-in-law. It is not the focus of this paper to go into the details of the numerous kinds of violence justified by as many reasons.

While talking about India, it is Raja Ram-mohan Roy who can be called the pioneer of the movement for women’s rights. He was to a great extent responsible for bringing about socio-legal changes pertaining to the de-legitimisation of child marriage, sati and legitimisation of widow remarriage. Roy’s mobilisation of Hindu thought against the system of sati created the necessary public opinion to make the practice a criminal offence in 182921.

IPC and CrPC Provisions on Domestic Violence
Till 1983 there were no specific legal provisions pertaining to violence within home. Husbands could be convicted under the general provisions of murder, abetment to suicide, causing hurt and wrongful confinement.
In Section 304B, IPC, where the death of a woman is caused by burns or bodily injuries or occurs due to reasons other than normal circumstances within seven years of her marriage and if it is established that the wife is subjected to cruelty by her husband or his relatives, the death is termed as ‘dowry death’. The husband or relatives who subject the wife to cruelty is/are presumed to have caused the dowry death and will have to prove that the death was not a result of the cruelty.

According to Section 305, IPC, often victims of domestic violence, especially brides harassed for dowry, are driven to commit suicide. Abetment of suicide of a delirious person is an offence punishable with death or life imprisonment. Abetment of suicide is also an offence punishable with ten years imprisonment (Section 306).

Under Section 319, causing bodily hurt is a common form of domestic violence. The IPC defines hurt as causing “bodily pain, disease, pain or infirmity to any person”. A hurt may be ‘grievous’ if it results in serious injury such as a fracture, loss of hearing or sight, damage to any member or joint, etc. (Section 320).

The IPC makes it an offence to voluntarily cause hurt (Section 321) or grievous hurt (Section 322 read with Section 323, IPC). Also criminalised is voluntarily causing of grievous hurt by dangerous weapons (Section 326, IPC) and voluntarily causing hurt to extort property (Section 327, IPC).

Another common form of domestic violence is in the form of the wrongful restraint (Section 349) or confinement (Section 340) of the spouse within her matrimonial home. Use of force and assault on the spouse, other common forms of domestic violence, are also punishable under the IPC.

In 1983, matrimonial cruelty was introduced as an offence in the IPC (Section 498A, IPC). Cruelty was defined as “any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman”. It includes harassment of the woman in connection with demands for property and the like.

The Dowry Prohibition (Amendment) Act, 1986
Dowry death or related harassment is a unique kind of crime practised in the Indian subcontinent. A legal ban was put on the practice of dowry way back in 1961 (Dowry Prohibition Act, 1961). The Act was amended 1984 and then in 1986 to make it more stringent.

The Commission of Sati Prevention Act, 1987
‘Sati’ means the burning or burying alive of a widow along with the body of her deceased husband or any other relative, or with any article, object or thing associated with the husband or relative. The practice of ‘sati’ was declared unlawful during the colonial period itself. No Act, however, was drafted in post-colonial India to prohibit the occurrence of sati. It was only after the shocking incidence of sati in Rajasthan in 1987 that a law was enacted in 1987; that Act declares the observance, support, justification or propagation of sati as criminal activity.

The Pre-Natal Diagnostic Techniques
(Regulation and Prevention of Misuse) Act, 1994
It is not only that women face violence during their lifetime but also even before birth. Female foeticide using the Pre-Natal Diagnostic Technique is widely prevalent in India. A law was drafted for the purpose of curbing female foeticide unless medically required.

Civil Law
In India the problem of domestic violence has always been looked upon from the perspective of both criminal and civil laws. Under Indian civil law also several provisions are available to deal with different types of domestic violence.

Dissolution of Muslim Marriages Act, 1939 (DMMA)
The DMMA stipulates cruelty as a ground for divorce. Cruelty is defined to include
• Habitually assaulting the wife or making her life miserable by cruelty of conduct even if such conduct does not amount to physical ill-treatment
• Associating with women of ill-repute or leading an infamous life
• Attempting to force the wife to lead an immoral life
• Disposing of the wife’s property or preventing her from exercising her legal rights over it
• Obstructing the wife in the observance of her religion

The Hindu Marriage Act, 1955 (HMA)
Under the HMA, cruelty is a ground for divorce as well as judicial separation (Section 10, HMA). However, the term ‘cruelty’ is not defined in the HMA. It is through decided cases that the term has been understood to mean acts of physical as well as mental cruelty.

Other Matrimonial Laws
The Special Marriage Act, 1954 (SMA), the Indian Divorce Act (IDA), and the Parsi Marriage and Divorce Act (PMDA)—all allow ‘cruelty’ as a ground for divorce. However, all these laws are not sufficient as they do not elaborate the nature and extent of domestic violence.

Drafting of Domestic Violence Act 2005: Needs and Challenges
The phenomenon of domestic violence is basically rooted in the socio-cultural fabric of India. Indian society is highly patriarchal. It not only discriminates between a son and a daughter but also the former is highly preferred and latter unwanted. In many cases preference for a male child is so intense that it results in the death of a female foetus. Gender discrimination culminates into and is manifested in various types of violent practices within ‘home’. Since ‘family’ and ‘home’ denote ‘private space’, an area free from state as well as non-state interventions, therefore, domestic violence has largely remained free from legal restraints and remains even unacknowledged as a crime. Even if there were laws, victims were hardly taking recourse to law as women are socialised right from their childhood in patriarchal values. Consequently violence within ‘home’ and by their own relatives is not perceived as a crime or something wrong by women themselves. Thus the law was simultaneously used for the twin purposes of guaranteeing ‘equality’ (Articles 14-18 of India’s Constitution declare sex based equality as a Fundamental Right) on the one hand and also to legalise the ‘private space’ by not making a law exclusively on domestic violence on the other hand. The state has also failed in making required arrangements like sensitisation of masses; bringing the entire family in the purview of the domestic violence law; legal awareness, economic empowerment of women etc. for preventing the occurrence of domestic violence. The state, despite declaring women at par with men, really did not do much until the decade of the 1990s for making women safe in the so-called ‘poor man’s castle’, that is, home.

As mentioned earlier, before 1983 there were no specific provisions pertaining to violence within the home. Husbands could be convicted under the general provisions of murder, abetment to suicide, causing hurt and wrongful confinement. But none of these provisions take into account the real problem of domestic violence in its totality, that is, in terms of its magnitude, type and of course nature of perpetrators. All these provisions target only the ‘husband’ and ‘in-laws’ as perpetrators or else only the violence faced by the daughter-in-law was addressed. The domestic violence faced by the daughter, sister, mother, girl friends etc. was all missing and they were denied legal protection. Also the violence committed by the husband and in-laws had to be proved ‘beyond reasonable doubt’. Since the crime is committed within four walls of the house, getting witnesses to corroborate their evidence is extremely difficult. Besides complaints can be registered only after an offence has been committed. But in cases of domestic violence the woman is living with her assaulter and on whom she is emotionally dependent. Over and above these, the attitude of the law-enforcement agencies is highly non-cooperative. Since the problem of domestic violence is rooted in social values and cultural practices that shape the attitude of police as well, therefore many a time the police refuses to register the cases of domestic violence. The law enforcement agencies also presume that the husband has a right to beat his wife 22.

During the Fourth World Conference on Women at Beijing, the world community reaffirmed the rights of women as an integral part of the international human rights paradigm. During this Conference, 189 UN member-states adopted the Beijing Declaration and Platform for Action which specified the need to take steps to eliminate violence against women. Under its guidance the Government of India undertook some steps to protect women against domestic violence23.

In view of the fact that domestic violence is not simply a legal problem, the Indian the state adopted a number of legal as well as non-legal measures to combat or to enable women to combat violence against them24.

Under the non-legal measures the following steps were initiated:
1. Gender Sensitisation of police force; setting up of all-women police stations; Voluntary Action Bureaus and Family Counselling Centre in police stations; regular “Gender Sensitisation” programmes included in the regular programmes of the National Judicial Academy.

2. Women Empowerment and Rehabilitation Schemes were given special emphasis, for example,
(a) ‘Swadhar’, a scheme for holistic rehabilitation of women in different circumstances like destitute women, widows deserted by their family, women released from prison, trafficked girls or women rescued from brothels, victims of sexual crimes;25
(b) helplines for women in distress;
(c) family courts to adjudicate cases relating to maintenance, custody and divorce;
(d) Parivarik Mahila Lok Adalat (PMLK) evolved by the National Commission for Women (NCW) is an alternative justice delivery system which is a part of the Lok Adalat (peoples’ court) for speedy justice26.

3. Amongst the non-state interventions development of ‘community based strategies’ for combating domestic violence have been employed like neighbourhood committees; Mohalla committees etc. ‘Nari Adalat’ and ‘Mahila Panch’ have emerged out of collectives formed under the ‘Mahila Samakhya Programme’ in select districts of UP and Gujarat which use community pressure and social control and system of punishing the perpetrators’ of violence within the family. Similar groups, working on the same lines, are the ‘Sahara Sangh’ in the Tehri Garhwal district of Uttaranchal and ‘Shalishi’ (traditional system of dispute resolution) in West Bengal. Other examples of such community policing initiatives to combat domestic violence are the ‘Mahila Suraksha Samiti’ and ‘Women State Committee’ in Gujarat which operate at district and the State levels. They are basically concerned with strategies to promote prevention, pressurise state bodies and mobilise public awareness programmes.27

4. Legal awareness programmes initiated by the NCW in 1996.28

However, all these efforts failed to make a pan-Indian impact on a consistent basis.

Legal measures taken by the Indian state included (1) review of the existing law, (2) drafting new laws if needed. In fact the PWDVA 2005 was a product of this strategy of the state to combat domestic violence.

Protection of Women from Domestic Violence Act 2005
The Act defines domestic violence to include actual abuse or threat of abuse—physical, sexual, verbal, emotional or economic violence. Section 3 of the Act says that any act, omissions or commission or conduct of the respondent shall constitute domestic violence in case it
(a) harms or injures or endangers the health, safety of life, limb or well-being, whether mental or physical, of the aggrieved or tends to do so and includes causing physical abuse, sexual abuse, verbal and emotional abuse and economic abuse; or
(b) harasses, harms, injures or endangers the aggrieved person with a view to coerce him or any other person related to her to meet any unlawful demand for any dowry or other property or valuable security; or
© has the effect of threatening the aggrieved person or any person related to her by any conduct mentioned in clause (a) or clause (b); or
(d) otherwise injures or causes harm, whether physical or mental, to the aggrieved person.

For the purpose of Section 3:
(i) “physical abuse” means any act or conduct which is of such a nature as to cause bodily pain, harm, or danger to life, limb, or health or impair the health or development of the aggrieved person and includes assault, criminal intimidation and criminal force;
(ii) “sexual abuse” includes any conduct of a sexual nature that abuses, humiliates, degrades or otherwise violates the dignity of woman;
(iii) “verbal and emotional abuse” includes

(a) insults, ridicule, humiliation, name calling and insults or ridicule specially with regard to not having a child or a male child; and

(b) repeated threats to cause physical pain to any person in whom the aggrieved person is interested.
(iv) “economic abuse” includes

(a) deprivation of all or any economic or financial resources to which the aggrieved person is entitled under any law or custom whether payable under an order of a court or otherwise or which the aggrieved person requires out of necessity including, but not limited to, household necessities for the aggrieved person and her children, if any, stridhan, property, jointly or separately owned by the aggrieved person, payment of rental related to the shared household and maintenance;

(b) disposal of household effects, any alienation of assets whether movable or immovable, valuables, shares, securities, bonds and the like or other property in which the aggrieved person has an interest or is entitled to use by virtue of the domestic relationship or which may be reasonable required by the aggrieved person or her children or her stridhan or any other property jointly or separately held by the aggrieved person;

and prohibition or restriction to continued access to resources or facilities which the aggrieved person is entitled to use or enjoy by virtue of the domestic relationship including access to the shared household.
Thus the Act prima facie appears to be comprehensive. The term “domestic violence” has been defined for the first time in such a detailed manner which includes actual abuse or threat of abuse that is physical, sexual, verbal, emotional or economic. Even harassment by way of unlawful dowry demands to women or her relatives would also be covered under this definition.

The Act seeks to cover even those women who are or have been in a relationship with the abuser, where both parties have lived together in a shared household and are related by consanguinity, marriage or adaption. Also, relationship with family members living together as a joint family are included. Legal protection is thus available to women who are sisters, widows, mothers, single women or living with the abuser. Besides, the Act protects the rights of women to secure 29. Moreover, the Act is not relying only on law enforcement agencies for protecting women against domestic violence. It refers to “protection officers” and allows registration of NGOs as “service providers for legal aid, medical examination or shelter for women in distress”30.

The term ‘cruelty’, as defined under section 498A of IPC, is covered in the new Act as well. Further, the new law has widened the meaning of the word ‘WOMAN’ and it covers the woman facing violence outside matrimony.26 Also the secular outlook of the Act is clearly reflected as it deals with domestic violence regardless of the religion of the parties. The term ‘woman’ here is religion neutral.

Critical Evaluation of PWDV Act 2005
Despite the above mentioned positive features contained in the new law, still some lacunae can be seen in this law. Firstly, though the Act covers physical abuse, sexual abuse, verbal or emotional abuse as well as economic abuse, it does not speak anything regarding ‘forced sex’ or ‘sex without the wife’s consent’, that is, ‘marital rape’. While the West has legally recognised the consent of women even in marital relationship violation/rejection of which is equivalent to a criminal act, in India this is an area still awaiting legal recognition.

Secondly, there has been significant research indicating a direct correlation ship between women’s economic status and violence faced by them.31 Therefore, it is very necessary to provide economic security to women in order to fight back domestic violence. In this context, several suggestions have been made from time to time. According to one such suggestion, a necessary step to make the woman economically secure would have been to make available a fixed share of the husband’s salary. This was one of the recommendations of the Sub-Committee on Women within the broader framework of the “National Planning Committee” in 1939-4032. Any such reference regarding this aspect is missing in the Act and this shows the apathy of the law-makers towards a comprehensive and effective strategy to tackle the issue of domestic violence against women in India. The law-makers are looking upon domestic violence only as a legal problem and are concerned more about “protection” and less about “prevention”.

The larger section of victims who have used the PWDVA 2005 comprises married women. This is an indication of its wider non-acceptance yet or non-recognition of domestic violence in the non-marital plane.
*****************
16. Women’s aid, British Crime Survey statistics-2006-7Women’s Aid Published on the Internet.http://www.womensaid.org.uk/domestic-violence-articles.asp?itemid=1445&itemTitle... Accessed 7thMay2008
17. Creighton S J (20O1) Published on the Internet http://www.nspcc.org.uk/Inform/research/Breifings/physical abuse_wda48220.html.
18. Dobash R E and Dobash R P (1992)Women Violence and Social Change Routledge London and New York
19. Mc Laughlin E and Muncie J (2006)The SAGE Dictionary of Criminology SAGE Publications Ltd London
20. Richardson Published on the Internet Accessed May2008
21. Kumari Jayawardena, Feminism and Nationalism in Third World, Kali for Women, 1986.
22. Agnes Flavia, “Violence against Women: Review of Recent Enactments” in In the name of Justice, Women and law in Society, Swapna Mukhopadyay (ed.), Manohar, 1999.
23. The Beijing Declaration and the Platform for Action – Fourth World Conference on Women—Beijing September 4-15, UN Department of Public Information, UN, New York, 1996.
24. Platform for Action: Ten Years after Beijing, India Country Report Dept. of Women and Child Development, Ministry of HRD, Government of India.
25. http://www.wcd.nic.in/chap2.htm
26. People’s Court: A Study on Legal Status of Women in Maharashtra, SAK and NCW, 2002.
27. ‘Review of Women Studies’, EPW, April 26, 2003, pp. 1658-1673
29. Raman Richa, “The Protection of Women from Domestic Violence Act 2005”, Cri Law Journal Jour/2/Feb. 2009.
30. Sundersan Harini and Ramakrishnan Nirupama, “Domestic Violence Act Constitutional Perspectives”, NALSAR. www.legalsrviceindia.com/art
31. Agarwal Bina, “Landmark step to Gender Equality”, The Hindu Sunday Magazine, September 25, 2005
32. S.R. Batra v. Tareen Batra 136 (2007) DLT 1 SC, Hindustan Times, March 26, 2009 in Venkatesan V., ‘Lacunae in Law’, Frontline, January 4, 2008, Vol. 25, No. 25.

 

The author can be reached at: Rajyashri@legalserviceindia.com




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