"Violence against women is perhaps the most shameful human rights violation. And it is perhaps the most pervasive. It knows no boundaries of geography, culture or wealth. As long as it continues, we cannot claim to be making real progress towards equality, development and peace."
-Kofi Annan, Secretary-General of the United Nations
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The concept of human rights evolved largely from ideas of western political theory about rights of individuals to autonomy and freedom. Thus the international human rights law evolved to protect individuals' autonomy vis-a-vis the state. And, it held states responsible for individual rights and accountable for abuse of those rights.
The development of human rights has been expressed in terms of 'generations': The civil and political rights, as the first generation rights; economic, social and cultural rights as the second generation rights; and the group or people's rights, which are recently defined as the third generation rights.
Indeed the development of human rights movement, right from the Universal Declaration of Human Rights (1948), and the three generations of rights show that rights are defined as 'belonging to all human beings' irrespective of gender. However, though international law is gender neutral in theory, in practice it constituted men and women into separate spheres of existence - public and private, respectively. Thus men exist as public, legal entities that enjoy civil and political rights and in a way define the nature of rights discourse. Women's existence, on the other hand, is "privatized", thus, seen as existing outside the purview of the state's obligation.
Often women's exclusion from the human rights practice and discourse, their relegation to the private, has been justified on grounds of social and cultural specificity of region or a group. Thus, social and cultural norms, which become grounds for respective states' consistent relegation of women to private sphere, results in international law being either reinforcing or replicating exclusion of women's human rights abuses from the public sphere. The effects of this public/private divide in the international law are more evident in domestic violence, which literally happens in the private. Many laws are gender neutral, however, their application is gender biased. (Agnes, 1988)
Moreover the economic and social context of its (laws) application had not been considered seriously by both the governmental and at the same time non-governmental organizations, all over the world.
Harms suffered by women at the hands of private individuals or within the family had been placed outside of the conceptual framework of international human rights. Feminists have argued that a failing of international human rights norms is in not recognizing the 'gendered' consequences of their application they render invisible particular problems suffered by women.
Moreover, in addition to holding states responsible for taking action against the human rights abuses occurring in the private sphere, feminist human rights thinkers argued that domestic violence should be conceived as a form of torture. They aver that though torture with cases of disappearance and murder, is widely recognized as a core violation of human rights, that inequality on the basis of Sex is widely condemned, why is torture on basis of sex in the form of rape, domestic battering and pornography not seen as a violation of human rights?
The feminist analysis examines characteristics of domestic violence, in the light of international legal understanding, of what constitutes' torture and cruelty, the inhuman and degrading treatment it entails. They affirm that process, purposes, and consequences of torture and that of domestic violence are startlingly similar. That whether torture committed in domestic context or that inflicted officially, does not reduce its intensity of violence, nor does it demand different standards of judgments and actions on part of state.
The existing international human rights instruments, has both a separate provision for women's rights (i.e. Convention on the Elimination of All Forms of Discrimination against Women, CEDAW), and other general mechanisms which stressed formal equality of women and men. While this development is important, it is not adequate to address issue of women's subordination. Recently, non-governmental organizations have begun to document women's abuse within the context of traditional human rights law. (Mathur, 2004)
These efforts are based on and addressed within that framework of whose 'very structure is built on the silence of women'. The fundamental problem women face is not discriminatory treatment vis-a-vis men. Rather it is necessary to raise a larger problem: that, women are in inferior position because they have no power either in public or private worlds, or in international human rights law. Thus problem of domestic abuse as a human rights issue will have to be seen as a part of larger reality of subordination of women their powerlessness in terms of defining the human rights discourse.
The signs of domestic violence
Destructive criticism and verbal abuse shouting/mocking/ accusing/name calling/verbally threatening.
* Pressure tactics: sulking, threatening to withhold money, disconnect the telephone, take the car away, commit suicide, take the children away, report you to welfare agencies unless you comply with his demands regarding bringing up the children, lying to your friends and family about you, telling you that you have no choice in any decisions.
* Disrespect: persistently putting you down in front of other people, not listening or responding when you talk, interrupting your telephone calls, taking money from your purse without asking, refusing to help with childcare or housework.
* Breaking trust: lying to you, withholding information from you, being jealous, having other relationships, breaking promises and shared agreements.
* Isolation: monitoring or blocking your telephone calls, telling you where you can and cannot go, preventing you from seeing friends and relatives.
* Harassment: following you, checking up on you, opening your mail, repeatedly checking to see who has telephoned you, embarrassing you in public.
* Threats: making angry gestures, using physical size to intimidate, shouting you down, destroying your possessions, breaking things, punching walls, wielding a knife or a gun, threatening to kill or harm you and the children.
* Sexual violence: using force, threats or intimidation to make you perform sexual acts, having sex with you when you don't want to have sex, any degrading treatment based on your sexual orientation.
* Physical violence: punching, slapping, hitting, biting, pinching, kicking, pulling hair out, pushing, shoving, burning, strangling.
* Denial: saying the abuse doesn't happen, saying you caused the abusive behaviour, being publicly gentle and patient, crying and begging for forgiveness, saying it will never happen again.
Four types of cruelty are dealt with by this law:
* Conduct that is likely to drive a woman to suicide,
* Conduct which is likely to cause grave injury to the life, limb or health of the woman,
* Harassment with the purpose of forcing the woman or her relatives to give some property, or
* Harassment because the woman or her relatives is unable to yield to demands for more money or does not give some property.
What are the forms of "cruelty" recognised by the Courts?
* Persistent denial of food,
* Insisting on perverse sexual conduct,
* Constantly locking a woman out of the house,
* Denying the woman access to children, thereby causing mental torture,
* Physical violence
* Taunting, demoralising and putting down the woman with the intention of causing mental torture,
* Confining the woman at home and not allowing her normal social intercourse,
* Abusing children in their mother's presence with the intention of causing her mental torture,
* Denying the paternity of the children with the intention of inflicting mental pain upon the mother, and
* Threatening divorce unless dowry is given.
What is a "matrimonial home"?
What rights do women have in their matrimonial home?
The matrimonial home is the household a woman shares with her husband; whether it is rented, officially provided, or owned by the husband or his relatives. A woman has the right to remain in the matrimonial home along with her husband as long as she is married, though there is no definite law regarding this right. If a woman is being pressurised to leave the matrimonial home, she can ask the Court for an injunction or "restraining order" protecting her from being thrown out.
This can usually be obtained quite easily. It is generally advisable not to leave the matrimonial home; it is easier to get a court order preventing a woman being thrown out than to get an order enforcing her right to return to it once she has left or been thrown out.
What is an 'Injunction' and how does it apply to domestic violence cases?
An injunction is a court order directing a person to do or not to do something. A woman has a lot of flexibility regarding what she can request the Court to order. For instance, if she is being stalked by somebody (including her husband), she can obtain injunctions against the person coming near her home or place of work, or even telephoning her.
What can a woman do to prevent domestic violence?
One option is to get the woman's husband to execute a "bond to keep peace", or a "bond of good behaviour "through the Executive, Magistrate who can order the husband to put a stop to domestic violence. The husband can also be asked to deposit securities (i.e. money or property) that will be forfeited if he continues to act violently.
Protection of Women from Domestic Violence Act, 2005
- Recognition of the right to residence
- Provision for the appointment of Protection officers and the recognition of Service Providers
- Training for Protection Officers and Judges
- Awareness creation
- Budgetary allocation
Implementation of laws
To make the laws concerning women the state needs to strengthen the machinery for their implementation. Important steps in this regard are:
* Appointment and empowerment of statutory authorities at the central and state levels.
* Preparation of policy statements by such statutory authorities enclosing clear guidelines on the manner of implementation of the law such as code of conduct to be followed by functionaries, provision of best practices, etc.
* Evaluation and auditing the effectiveness of particular laws and the periodic publication and submission of compliance reports
* Upgrading the quality of statistics maintained on women. Each statutory body to conduct yearly surveys in their particular field.
* Building capacity of the functionaries appointed under the law such as statutory authorities, police personnel, health personnel, counselors, etc by conducting regular trainings on the law including aspects of gender sensitisation as well as improving practices followed by them.
* Introducing mechanisms to ensure quicker and simpler procedures for women to obtain legal redress to their problems. This would include the provision of legal aid, assistance at the time of registering complaints, making applications, provision of information on the legal options available to the women etc.
* Raising awareness of the services and support available to women facing discrimination, from both governmental and non governmental sources.
* Ensuring adequate representation of women in statutory advisory bodies/ policy making bodies.
* Sustained interactions between different governmental agencies to promote multi agency working.
* Allocation of adequate budgets for the proper functioning of the statutory authorities.
* Constant monitoring and auditing of accounts by a central authority.
* Submission of financial reports to the Auditor General for it to be placed before on the floor of the Parliament or State Legislature as the case may be.
Conclusion:
There is a need for an affirmative action to protect girls, young and elderly women from domestic violence and establish human rights for women. It must address the following areas of intervention.
1 – Improve Women's Economic Capacities: Improve women's access to and control of income and assets, recognize women's shared right to the family home, and incorporate the principle of division of community property in divorce laws. Productive assets and property are critical to strengthening the economic and social status of women, providing income opportunities and improved respect for women outside marriage and family.
2 – Strengthen and expand Training and sensitization Programs: Programme designed to train, sensitize and inter-link those working at critical entry points to identify and treat abused women should be a priority, with one aim being increased accountability across institutions. Such programmes should be tailored for medical personnel, the judiciary, counseling and other support service providers.
3 – Effective use of the Media to build Public Awareness: Mobilisation of communities around campaigns such as that for "Zero Tolerance of Violence" requires improved skills and capacity among NGOs to enter new forms of dialogue with journalists and media personnel to heighten awareness of human rights and their significance for addressing domestic violence.
4 – Programmes designed for the batterers: must be introduced in both the state and voluntary sectors. In order to promote a holistic approach to prevention as well as intervention, the deficiency in programmes designed for men needs to be addressed.
5 – Addressing Domestic Violence through Education: Prevention of domestic violence ultimately depends upon changing the norms of society regarding violence as means of conflict resolution and traditional attitudes about gender. To achieve this, there must be introduction of gender and human rights in the curricula of schools, universities, professional colleges, and other training colleges. Along with this, there must be recognition and commitment to the principle of free compulsory primary and secondary education for girls.
6– Dilaasa model of one stop crisis centre housed in the public hospital to facilitate collective intervention of medical staff, police and NGO must be replicated throughout the country.
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References :
- Agnes, Flavia "Our Fight Against Wife beating" in Rehana Ghadially Women in Indian
Society-A Reader, Sage Publications, Delhi, 1988.
- CWDS Crimes Against Women: Bondage and Beyond Centre for Women's Development
Studies, New Delhi, 2002.
- ICRW Domestic Violence in India: A Summary Report of a Multi-site Household Survey, New Delhi, 2004.
- Jagori "Didn't We Ban It 40 Years Ago?" (2003), New Delhi www.jagori.org.in
- Lohia, Shaila " Domestic Violence in Rural Areas", in Shirin Kudchedkar and Sabiha al-Issa Violence Against Women and Women Against Violence, Pencraft International, Delhi, 1998.
- Mathur, Kanchan Countering Gender Violence: Initiatives Towards Collective Action in Rajasthan Thousand Oaks (California), Sage Publications, London. 2004.
- Jaising, Indira (Ed.) Law of Domestic Violence: A User's Manual for Women, The Lawyers Collective, Delhi, 200 I.
- Patel, Vibhuti Women's Challenges of the New Millennium, Gyan Publications, Delhi, 2002.
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