Indian Supreme Court

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 includes in its ambit even live-in relationships. Barring marital rape which still remains non-penalised 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 as 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 victimisation of women and to prevent misuse of the law given the peculiar social conditions and inherently patriarchal set up of India 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 include all individuals and entities who are affected by the 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 other 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. 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 since 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 on the use of patriarchal violence to define such kind of systematic abuses and violence being committed on womankind for centuries.

History of domestic violence in India is as old as the Brahmanic-Hindu religious social order which does not portray women in very dignified light and all of the stereotypes related to women have been deeply entrenched in countless Hindu-Brahminic scriptures over the years which resurgent Hindu-Nationalists proudly describe as “Sanatana” or the eternal endless chain of wisdom. Even ancient Hindu-Brahmin scholars of high repute including Chanakya (who is today viewed with much regard in the West) referred women as deceitful entities and did not hesitate in sexually objectifying her. 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.” Ramcharitmanas written by Tulsidas (a Brahmin) commands a great respect in North Indian states especially in UP and Bihar and the book expressly compares women with drum, nerd, impure, and beasts and exhorts them to be beaten up in order to make sense out of them. Unfortunately people of all ages residing in these areas especially the elders greatly relish in reciting this verse with smug on their faces clearly visible. Sometimes when confronted on this issue, rather than expressing remorse, they can be found stubbornly giving weird explanations and justifications.
Apart from normalization and justification of demonization, subjugation, and suppression of womankind through Hindu-Brahmin religious scriptures, perpetuation of violence on womankind has also been achieved and entrenched by various other gross, subtle, sophisticated and barbaric techniques which restrict her autonomy and free-will and they include- decking her in heavy jewellery and uncomfortable clothing so that she does not run fast; making her fast several times in order deprive her of strength; punishing her by torture and honor killings and making her always financially dependent on men, etc. Similar other social and cultural practices can be observed in other parts of the world. In certain communities, they even go to the extent of female genital mutilation with the aim of controlling women’s sexuality.
Many other religions also perpetuate violence and subjugation of women at least in practice if not in theory but they are not as punitive as Hinduism. Though ancient India was ripe with much more horrendous acts of violence on women including ‘sati system’ where women were burnt alive on the funeral pyre of their husbands, thankfully such practices were gradually brought to an end by the British Indian dispensation and after them by the post-independent authorities who enacted several women welfare legislations. Despite enactment of many progressive statutes like 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, violence against women still persist at large in India though there have been conflicting reports about the nature and extent of such violence. While some reports provide that that 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. India’s own National Crime Records Bureau report on domestic violence is not alarming probably due to less reporting of such incidents in India compared to western countries.

Whereas most jurists and legal philosophers would invariably 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 respects 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. Same is echoes 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 is rigorous as a person can be said to be acting autonomously only when he/she acts according to a law that he/she has given to herself/himself. One acts heteronomously if one’s actions are determined by other factors and desires. Since domestic violence has the effect of depriving the victim of his/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 universalised and do not involve commitment of resources. Thirdly and most importantly it violates the Kantian maxim of 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 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 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 is the principle of liberty which endows everyone with the most extensive form of liberty which is consistent with 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 other or any other like motive. Since this restriction is not for the sake of liberty, it is not justified.

There are many stakeholders of domestic violence and they include all individuals and entities who are affected in one way or other 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 than provide for suitable mechanism of redressal to remedy such situations. In case of India, though the state has enacted a legislation on domestic violence but 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 mould people’s belief 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 law on domestic violence should not only provide temporary and emergency reliefs but should also ensure a long lasting solution to this grave social evil and malpractice rampant in our society. As far as the India law on domestic violence is concerned, it is not fully inclusive and comprehensive as it caters to the needs of only female victims of domestic violence and even in that case excludes marital rape which is a grave incursion on liberty, privacy, and dignity of an individual. In such a scenario, the law is yet to fulfil 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.

O ye who believe! Ye are forbidden to inherit women against their will. Nor should ye treat them with harshness, that ye may Take away part of the dower ye have given them, except where they have been guilty of open lewdness; on the contrary live with them on a footing of kindness and equity. If ye take a dislike to them it may be that ye dislike a thing, and Allah brings about through it a great deal of good.

Al-Quran 4:19

Peace! 🌹