INDIAN CONSTITUTIONAL AND INTERNATIONAL LAWS AND RIGHTS TO AVOID DOMESTIC VIOLENCE

“The manifestations of violence against women are a reflection of the structural and institutional inequality that is a reality for most women in India.” Rashida Manjoo,  Special Rapporteur on violence against women, its causes and consequences

Everyone has heard of someone amongst their families, friends or acquaintances who has suffered some form of domestic violence, i.e. some form of verbal, physical, sexual or economic abuse. We understand “domestic violence” here as it is defined under the Protection of Women against Domestic Violence Act, 2005 (‘DV Act’). 

We implore you to, if you have not so far, reflect on whether you are a person who has created an open environment around them; a safe space – where people feel comfortable about sharing such information. There are also plenty of statistics substantiating these unfortunate realities. 

1 in 3 women worldwide experience physical and/or sexual abuse from their intimate partners or non-partners (WHO 2017). In India, the definition of a ‘domestic relationship’ includes a woman’s relationship with her husband or live-in partner and with his relatives. 

As per the National Family Health Survey IV conducted in 2015–2016, 31.1% of married women aged 15-49 years experienced spousal violence at least once in their lives. To add to this, 27.3% women were married before the age of 18. 

The National Crime Records Bureau reports that, “Majority of cases under the category of ‘crimes against women’ as recognized by the Indian Penal Code were registered under ‘Cruelty by Husband or His Relatives’ (31.9%).”

These statistics go on to show how widely prevalent private violence is and how grave and urgent an issue it is, requiring our collective attention as a society.

It is clear that addressing domestic violence has become an urgent issue not only for the government, as it is a public health crisis and a criminal act but also for the society.

Laws on Domestic Violence – A Summary

There are several laws protecting a married woman from abuse from her husband or her husband’s relatives. Under Section 498A of the Indian Penal Code, harassment for dowry by the husband or his family is considered a crime. This harassment can be either mental or physical. Even though marital rape is not recognized as a crime in India, forced sex with one’s wife can be considered cruelty under this section. Section 498 A has a wide scope. It also covers any and all wilful conducts against a woman which drive the woman to commit suicide or grave injury or risk to life, limb or overall health. Again, health includes the mental and physical health of the woman.  

The practice of dowry itself is outlawed under the Dowry Prohibition Act, 1961. Despite this, if dowry has been given to and taken by anyone other than the woman, she is entitled to that money/property as the case may be under this Act. 

Furthermore, the Protection of Women against Domestic Violence Act 2005 prohibits a wide range of abuse against women — physical, emotional, sexual and economical and all these are extensively defined under the Act. The scope of the Act covers women who are in a live-in relationship and are not married. A woman has the choice to be free from violence and has various options under this Act. She has a right to get an order of protection against her husband and his family, to continue living in the same house i.e. she cannot be thrown out of her matrimonial home even if she reports her abusers, to claim maintenance, to have custody to her children and to claim compensation. Under the DV Act and also under section 125 of the Indian Penal Code, a woman does not have to necessarily file for a divorce to have a right to receive maintenance from her husband. The nature of a married relationship is such that it makes it incumbent on the man to provide maintenance for his wife (in some cases if she is unable to provide for herself and in some cases even otherwise). A petition for maintenance is maintainable even in the absence of one for divorce.

If you look at these laws in action, you will be able to spot many practical difficulties with their implementation such as the refusal of the police to file a case in some cases, the low rate of conviction in cases under Section 498A or the delays in the criminal justice system. 

There are many empowering laws as well, apart from those offering redress of wrongs against women, which aim to bolster her social, economic and legal status to make her confident and less prone to abuse as well as less likely to tolerate should such instances happen. It is quintessential to foster economic independence in women and to address the “root causes of violence- women’s powerlessness”.

For instance, the Hindu Succession Act, after its 2005 amendment recognizes that women have an equal right in ancestral properties of their families: this is their legal right which is to get the same share as their brothers may get. The brothers don’t even have any special or overarching rights in properties of their parents as compared to their sisters. For their self-earned properties, it is upon parents to divide or bequeath it in the manner they deem fit but the law does not create any fetters against women receiving the same. We find that women are unaware of this property right and even if they are, they would not want to use these rights. Another link we make is with the issue of ‘Equal pay for equal work’.

The Equal Remunerations Act, 1976 makes it mandatory for employers to not discriminate only on grounds of sex when it comes to paying their employees. The Act also mandates that employers cannot discriminate in matters of appointment on grounds of sex unless the employment of women for the job in question is prohibited by law. Similarly, the Act outlaws discrimination in matters of promotion, training, transfer, etc. There is another specific law against sexual harassment at workplaces so women can feel safe in their workspaces and can can report any violations. It is also a provision to encourage the economic independence of women by ensuring they feel safe to come out of their houses to work.

THE INTERNATIONAL LEGAL FRAMEWORK

International law and policy on domestic violence has developed in the United Nations and in regional organizations such as the Council of Europe, and is in the process of being developed in the European Union. The recognition that domestic violence is a human rights violation under international law required decades of work by activists around the world. Now, international legal instruments and policy statements make clear that states have a duty under international law to prevent domestic violence and punish domestic violence offenders.

Contents:

The United Nations

Treaties and Conventions

United Nations’ Conference Documents

The Declaration on the Elimination of Violence Against Women

The Special Rapporteur on Violence Against Women

State Responsibility for Private Acts of Violence

The United Nations

Treaties and Conventions

Early human rights law enacted by the United Nations is relevant to domestic violence. The International Bill of Human Rights consists of The Universal Declaration of Human Rights, adopted by the United Nations General Assembly in 1948, and its implementing covenants, the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR), which entered into force in 1976. While these documents do not explicitly address domestic violence, they, along with the Optional Protocol to the ICCPR, articulate a state’s duty to protect fundamental human rights that are commonly violated in domestic violence cases. Those rights include the right to life, the right to physical and mental integrity, the right to equal protection of the laws and the right to be free from discrimination.

The Convention on the Elimination of All Forms of Discrimination Against Women, entered into force in 1981, also does not explicitly include language on violence against women or domestic violence but guarantees the human rights listed above. In 1992, the Committee on the Elimination of All Forms of Discrimination Against Women (CEDAW), which is the United Nations committee charged with monitoring the Convention, adopted General Recommendation Number 19. General Recommendation No. 19, Committee on the Elimination of Discrimination Against Women, U.N. Doc A/47/38 (1992). This recommendation addresses the Women’s Convention’s silence on violence and states that gender-based violence is a “form of discrimination which seriously inhibits women’s ability to enjoy rights and freedoms on a basis of equality with men.” This recommendation was the first time a human rights treaty or convention was officially interpreted to prohibit violence against women. The recommendation made clear that domestic violence was included.

United Nations’ Conference Documents

United Nations conference documents address the issue of domestic violence. They are widely recognized as consensus documents—that is, documents that reflect an international consensus on the state of international law. While not legally enforceable, they are, as one writer states, “signposts of the direction in which international human rights law is developing and should influence states that have accepted a commitment of progressive development toward enhanced respect for human rights in their international conduct and domestic law.” Rebecca J. Cook, The Elimination of Sexual Apartheid: Prospects for the Fourth World Conference on Women 29 (1995).

The Report of the World Conference of the United Nations Decade for Women: Equality, Development and Peace, Copenhagen, July 1980, U.N. Doc A/CONF.94/35 (80.IV.30), was the first time domestic violence was explicitly mentioned in an official document of the United Nations. Domestic violence is referred to several times in the document. The Legislative Measures section states:

Legislation should also be enacted and implemented in order to prevent domestic and sexual violence against women. All appropriate measures, including legislative ones, should be taken to allow victims to be fairly treated in all criminal procedures

At the 1985 Third World Conference on Women in Nairobi, Kenya, domestic violence received significant attention. The final conference report called on governments to “undertake effective measures, including mobilizing community resources to identify, prevent and eliminate all violence, including family violence, against women and to provide shelter, support and reorientation services for abused women and children.” Report of the World Conference to Review and Appraise the Achievements of the United Nations Decade for Women: Equality, Development and Peace, held in Nairobi, July 1985, including Nairobi Forward-Looking Strategies for the Advancement of Women, U.N. Doc. A/CONF.116/28Rev.1 (85.IV.10).

The final conference document from Second World Conference on Human Rights, held in Vienna in June 1993, was the Vienna Declaration and Programme of Action (A/CONF.157/23), 12 July 1993. The Vienna Declaration stated:

In particular, the World Conference on Human Rights stresses the importance of working towards the elimination of violence against women in the public and private life . . . the elimination of gender bias in the administration of justice and the eradication of any conflicts which may arise between the rights of women and the harmful effects of certain traditional or customary practices.

Violence against women, including domestic violence, was a major focus at the 1995 Fourth World Conference on Women in Beijing, China. The conference document, the Beijing Platform for Action, identifies domestic violence as a human rights violation. The Platform states: “Violence against women both violates and impairs or nullifies the enjoyment by women of their human rights and fundamental freedoms.” It addresses violence against women as a separate “Critical Area of Concern” and includes it under the “Human Rights” section. The Beijing Platform outlines many specific actions governments, nongovernmental groups and others should take to confront and combat violence against women, including strengthening legal systems’ response to domestic violence.

Five years later, at the United Nations’ conference, Beijing plus 5: A Special Session on Women 2000: Gender Equality, Development and Peace for the Twenty-First Century, the final document detailed obstacles for women and included domestic violence. The language of the document is strong and very specific:

14. Obstacles. Women continue to be victims of various forms of violence. Inadequate understanding of the root causes of all forms of violence against women and girls hinders efforts to eliminate violence against women and girls. There is a lack of comprehensive programs dealing with the perpetrators, including programs, where appropriate, which would enable them to solve problems without violence. Inadequate data on violence further impedes informed policy-making and analysis. Sociocultural attitudes which are discriminatory and economic inequalities reinforce women’s subordinate place in society. This makes women and girls vulnerable to many forms of violence, such as physical, sexual and psychological violence occurring in the family, including battering, sexual abuse of female children in the household, dowry-related violence, marital rape, female genital mutilation and other traditional practices harmful to women, non-spousal violence and violence related to exploitation. In many countries, a coordinated multidisciplinary approach to responding to violence which includes the health system, workplaces, the media, the education system, as well as the justice system, is still limited. Domestic violence, including sexual violence in marriage, is still treated as a private matter in some countries. Insufficient awareness of the consequences of domestic violence, how to prevent it and the rights of victims still exists. Although improving, the legal and legislative measures, especially in the criminal justice area, to eliminate different forms of violence against women and children, including domestic violence and child pornography, are weak in many countries. Prevention strategies also remain fragmented and reactive and there is a lack of programs on these issues . . . .

69. (a) As a matter of priority, review and revise legislation, were appropriate, with a view to introducing effective legislation, including on violence against women, and take other necessary measures to ensure that all women and girls are protected against all forms of physical, psychological and sexual violence, and are provided recourse to justice;

(b) Prosecute the perpetrators of all forms of violence against women and girls and sentence them appropriately, and introduce actions aimed at helping and motivating perpetrators to break the cycle of violence and take measures to provide avenues for redress to victims;

(c) Treat all forms of violence against women and girls of all ages as a criminal offence punishable by law, including violence based on all forms of discrimination;

(d) Establish legislation and/or strengthen appropriate mechanisms to handle criminal matters relating to all forms of domestic violence, including marital rape and sexual abuse of women and girls, and ensure that such cases are brought to justice swiftly . . .

Other United Nations conference documents address the issue of domestic violence. The Programme of Action from the 1994 International Conference on Population and Development (ICPD) in Cairo, Egypt, articulates the need for government attention to all forms of violence against women. This need was emphasized again in the “Cairo plus 5” document, the Programme for Action, from the second International Conference on Population and Development (ICPD) in 1999. The Copenhagen Declaration on Social Development from the 1995 World Summit for Social Development in Copenhagen also calls on governments to take effective measures to combat and eliminate all forms of violence against women.

The Durban Declaration and Program of Action from the 2001 World Conference against Racism, Racial Discrimination, Xenophobia and Related Intolerance in Durban, recognizes that the intersection of gender and race, ethnicity or other status can make women particularly vulnerable to certain kinds of violence and calls on governments “[t]o consider adopting and implementing immigration policies and programs that would enable immigrants, in particular women and children who are victims of spousal or domestic violence, to free themselves from abusive relationships.”

The Declaration on the Elimination of Violence Against Women

In 1993, the United Nations General Assembly adopted the Declaration on the Elimination of Violence Against Women (DEVAW). This landmark document was a result of efforts within the United Nations Commission on the Status of Women (CSW) and the Economic and Social Council (ECOSOC). While DEVAW does not have the binding legal authority of a convention or treaty, as a United Nations General Assembly declaration, it is universal in coverage and a strong statement of principle to the international community. Identifying the subordination of women as a principle cause of domestic violence, DEVAW states, “violence against women is a manifestation of historically unequal power relations between men and women, which have led to domination over and discrimination against women by men.” DEVAW condemns the crucial social mechanisms by which women are forced into a subordinate position as compared with men” and defines violence as that occurring both in “private or public life.” Importantly, DEVAW provides specific steps member states should take to combat domestic violence, including legal system reform. DEVAW provides that states should investigate and punish acts of domestic violence, develop comprehensive legal, political, administrative and cultural programs to prevent violence against women, provide training to law enforcement officials and promote research and collect statistics relating to the prevalence of domestic violence.

The Special Rapporteur on Violence Against Women

In 1994, the Commission on Human Rights appointed Radhika Coomaraswamy, from Sri Lanka, to the position of Special Rapporteur on Violence Against Women, Including Its Causes and Consequences. The mandate of the Special Rapporteur as articulated by the Commission is to “see and receive information on violence against women, its causes and consequences, from Governments, treaty bodies, specialized agencies and other special rapporteurs . . . [and] recommend measures, ways and means, at the national, regional and international level to eliminate violence against women and its causes, and to remedy its consequences . . . .” U.N.C.H.R. Res. 1994/45 (ESCOR 1994), paras. 6 and 7. Rapporteurs are seen as one of the most effective tools within the United Nations to monitor human rights violations. Since taking office in 1994, Ms. Coomaraswamy has issued 28 reports (as of February 2003) on violence against women. The reports focus on many different forms of violence, in many different countries and many include references to domestic violence.

In 1996, Ms. Coomaraswamy’s reports addressed domestic violence at length and included model legislation on domestic violence. The model legislation includes a definition of domestic violence, a declaration of purpose and both civil and criminal provisions. It is discussed further below in the Model Legislation section.

Ms. Coomaraswamy’s 2001 report to the Preparatory Committee for the 2001 World Conference against Racism, Racial Discrimination, Xenophobia and Related Intolerance in Durban, Racial Discrimination, Xenophobia and Related Intolerance on the subject of race, gender and violence against women (A/CONF.189/PC.3/5), 27 July 2001, describes some of the ways in which race, gender and violence against women intersect and emphasizes that battered women who belong to marginalized groups often confront additional obstacles, such as language barriers or cultural insensitivity, to protecting themselves from violence.

Links to the Special Rapporteur’s reports on violence against women are available under the Domestic Violence: Research and Reports section of this website.

State Responsibility for Private Acts of Violence

One of the most significant obstacles to overcome in the effort to define domestic violence as a human rights violation was the traditional view that international law is applicable only to governments and their representatives, but not to private actors as in the case of intimate partner assault. In fact, even before the United Nations and other institutions explicitly named domestic violence as a human rights violation, there was significant authority that states have a duty to protect individuals from offenses by private actors. When the International Covenant on Civil and Political Rights was drafted, it was contemplated that governments had a duty to protect individuals from violations by private citizens. The Human Rights Committee of the United Nations, the European Commission of Human Rights and the European Court of Human Rights have concurred with this view. From Andrew Byrnes, Women, Feminism and International Human Rights Law—Methodological Myopia, Fundamental Flaws or Meaningful Marginalisation?, 12 Austl. Y.B. Int’l Law 205 (1992).

Case law interpreting international and regional human rights law also supported this position. In the Velasquez Rodriguez Case, Inter-American Court of Human Rights, Ser. C, No. 4, Judgment of 29 July 1988, 1989 28 ILM 291, for example, the Inter-American Court of Human Rights held that Honduras was required to “take reasonable steps to prevent human rights violations and to use the means at its disposal to carry out a serious investigation of violations committed within [its] jurisdiction, to identify those response, to impose the appropriate punishment and to ensure the victim adequate compensation.” Other cases supporting this position include the Case of Plattform Arzte fuer das Leben v. Austria, Judgment of 21 June 1988, Ser. A, No. 139, 32, 13 EHRR 204; and X and Y v. Netherlands, Judgment of 26 March 1985, Ser. A, No. 91, 23, 8 EHRR 235, 81 ILR 103.

This human rights law dictates that, although one act of domestic violence may not invoke the protections of international law, a state’s institutionalized inaction in the face of a pervasive domestic violence problem violates its international obligations. From Kenneth Roth, Domestic Violence as an International Human Rights Issue, in Human Rights of Women 326 (Rebecca Cook ed.,1994); Dorothy Q. Thomas & Michele E. Beasley, Domestic Violence as a Human Rights Issue, Hum. Rts. Q. 15 (1993). In addition, a state may violate its international legal obligations if it applies its laws in a discriminatory fashion, giving more attention and resources to crimes other than domestic violence. However, Joan Fitzpatrick, in her article, The Use of International Human Rights Norms to Combat Violence Against Women, in Human Rights of Women 532, 539 (Rebecca Cook ed., 1994), makes the important point that an equal treatment approach for battered women leaves important issues unaddressed. She emphasizes that domestic violence survivors “operate under pressures not felt by other crime victims.” They may not be able to sever ties to their assailants in a way that accommodates the application of general criminal laws. Instead, domestic violence survivors may require additional services to truly achieve equal treatment.