Introduction
This article introduces the discussion of legal responses to female violence. It provides the context for the more detailed examination of those legal questions that the courts can answer to. Its aim is to demonstrate the many ways in which violence is relevant to legal disputes, even when it is not the direct issue and is often overlooked. First, it discusses examples of various legal remedies that have been or might be usefully invoked in cases where violence is the central issue, the reason for bringing the lawsuit. The examples briefly illustrate the possible role of areas of law other than criminal or quasi-criminal legislation. The paper presents examples of cases where, while the legal issue before the court did not directly involve violence, the judgment reveals that it was an underlying factor in the case. In these examples violence was not a focus of the discussion in the case but it emerges clearly from the judgment.
Definition
The United Nations defines violence against women as “any act of gender-based violence that results in, or is likely to result in, physical , sexual or mental harm or suffering to women, including threats to such acts, coercion or arbitrary deprivation of liberty, whether in public or private life.”
Intimate partner violence refers to the conduct of an intimate partner or ex-partner that causes physical , sexual or psychological harm , including physical assault , sexual coercion, psychological abuse and control.
Sexual violence is’ any sexual act, attempt to obtain a sexual act, or other act directed against a person’s sexuality by coercion, by any person, irrespective of his or her relationship with the victim, in any setting. It includes rape, defined as a physically forced or otherwise coerced penetration of the vulva or anus with a penis, other body part or object.
Effects of violence against women:
“Violence against women restricts women’s options in almost every sphere of life, both public and private, at home, at school , at work and in more community spaces. It restricts their choices directly by destroying their health, disrupting their lives and constraining the scope of their activity, and indirectly by eroding their self-esteem and self-confidence. In all these ways, violence hinders women’s full participation in society, including participation in the full spectrum of development. WHO also reported that women and girls who experienced violence in 15 years are at risk of poor health. Women’s stress may weaken their immune system and result in high blood pressure and gastrointestinal problems. Besides all these, it is not only women who suffer violence that jeopardizes their basic human rights, but also their children and their families, and the barricade to achieve equitable and sustainable development goals. Another WHO (1997) research has shown that one more effect of violence on children is that girls who have witnessed violence from their male members at home are more likely to have the same violence as a normal part of marriage in the future, and boys who have witnessed domestic violence are more likely to have the same behavior of violent male adults as husbands and fathers. UN also stated that VAW is harmful to families and also responsible for the spread of other forms of inequalities in societies by humiliating communities.
Law and Violence
As explained, abuse committed by men against women is a chronic issue and is still prevalent. Until recently, disrespect to the rule was approved. While it may not be possible to envisage a complete and systematic legislative solution to abuse, either by the Commonwealth or the State and Territory, it is important to analyze and resolve the degree of acceptance in various areas of the law. A quick analysis of judicial rulings across a variety of specific legal topics reveals that abuse is most much part of a legal dispute ‘s precedent or history that is often overlooked or viewed as meaningless. However, this is not to say that in cases involving domestic relationships, courts always ignore or miss violence when the case is not legally classified as ‘about violence.’ Indeed, the cases discussed below point to the courts being able to respond to male violence against women. From the women’s response to the law, however, it was obvious that such judicial sensitivity to violence issues was by no means uniform.
Gender bias and the justice system
Recently, the Senate Special Committee on Legal and Constitutional Affairs discussed the question of gender disparity within the judiciary. Its report from May 1994 focuses on issues of sexual violence against women. The Committee found that the use of stereotypes deriving from historical , social attitudes that did not accept the status of women as equal, autonomous citizens continues. While the Senate Committee focused on specific sexual assault cases that had received widespread media coverage, they suggested that it was not an adequate answer to the gender bias issue merely to hold individual judges accountable. They saw the problem as a real, significant but largely unconscious systemic problem which calls for multiple solutions.
Violence and education at law
Violence against women in traditional legal education is not typically a subject in the course of law in its own right nor, more importantly, is it a subject in a compulsory general course such as property law, contract law, equity or administrative legislation. While it is an important and comparatively noticeable part of criminal law in Australian law school curricula, it should also be a popular part of all mainstream law subjects. Violence is always part of a case ‘s history, or important to understanding the conflict between the parties, even though it is not the case’s main emphasis.
Abuse goes deeper than criminal legislation
As a result of how legal categories are structured, there is a tendency to see violence as relevant only to criminal or quasi-criminal law, largely the responsibility of states and territories, and not to see it as relevant to a range of other non-criminal issues. There might also be a propensity in many places not to consider it at all. In Australia, considerable efforts have been made to reform law regarding criminal law issues such as rape and sexual assault, domestic violence by men against women, child sexual abuse and homicide laws. Male violence against women in its clearest and most direct forms has been the focus of attention. This work, evident in reports from various task forces, committees and inquiries, including the National Committee on Violence Against Women, was essential in order to make violence against women a more prominent concern in traditional criminal legislation. Much less attention has been paid to violence that arises less directly in the law, and may take other forms. Women , for example, suffer a variety of different injuries.
Judicial approaches to domestic abuse
As an examination of violence against women in the home illustrates, the law can respond to violence against women in a number of different ways. These responses include enforcement of existing criminal laws, such as the assault law; recourse to quasi-criminal laws, such as the use of protective / restraining / apprehended violence orders; the use of administrative law remedies, such as mandamus written to compel police to exercise their criminal law powers in appropriate cases.
Outbreak of violence against women
Abuse against women could not be a topic for trial in certain situations. A history of abuse, however, can arise from a review of the case’s context. It can is a key part of the case history. The first three examples below provide a case study on how non-criminal law aspects respond to homicide at home. Such and the other examples here illustrate how its widespread occurrence and consequences in many legal and social settings can be readily ignored when analyzing violence against women solely by criminal or quasi-criminal legislation. The examples can also highlight the link between abuse and economic injustice among women.
Assault or assault on women
While dealing with section 354, the apex court in State of Punjab v. Major Singh had interpreted the term ‘women’ denoting female of any age. It further held that under the sweep of section 354, IPC, an offense that does not amount to rape may occur.
The decision in the case of State v. Musa is worthy of note in this context. The aforementioned offense caught the nation’s eye when a senior police officer misbehaved with another senior officer who belonged to the IAS cadre. The lady officer got slapped in front of the elite society members. Their lordships (Supreme Court) observed the FIR ‘s observations were neither absurd nor inherently unlikely. The accused was eventually acquitted.
The Supreme Court said in Rupen Deo Bajaj v. Kanwar Pal Singh Gill that the offense under this section should not be treated lightly as it is quite a serious offence. In some Western countries, the privacy of individuals and even the privacy of procreation are considered to be very sacrosanct rights, and if this offense is studied in that perspective, the offense would clearly show that it affects the dignity of women and should therefore be properly addressed to the accused of this offense, if proven.
In People’s Union for Democratic Rights v. Police Commissioner, Delhi, Police Headquarters and another, the Supreme Court, having found that the perpetrator was guilty of an offence under section 354 of IPC, granted the claimant money to be collected from the pay of the convicted policemen.
Rape
I’m going to deal with the crime of abuse at the time. Rape offence is considered one of the most heinous crimes. The physical body of each human being is a temple in itself. No one is entitled to encroach and create turmoil. When any kind of invasion or trespass occurs it offends one’s right. A woman’s freedom to reside with modesty in her physical body is an epitomisation of sacrosanct. An impingement or incursion creates a sensation of trauma in the person’s mind. The body not only hurts but the mind still goes through such pain and suffering that one may not be in a state to forgive it throughout one’s life.
In the eyes of society, she becomes a different person for no fault of hers. That apart from the offense of rape, it is an offense that creates a dent in the social marrow of the collective and a concavity in the morals of society.
In State of Haryana v. Mange Ram, their lordships (Supreme Court) emphasized that the evidence in the case of this nature should be assessed on broader probabilities and that there should be no insignificant contradictions on the part of the judge.
The State of A.P. V. Ganula Satya Murthy, the Supreme Court noted that it is ironic that while we celebrate women’s rights in all spheres, we show little or no concern for their honor. Their lordships also noted that the courts had to deal with rape cases with the utmost sensitivity and to appreciate the evidence of the totality on the background of the entire case and not on isolation.
An aspect that needs to be stated here is that a woman who has been raped is not an accomplice. She’s the victim of a carnal desire. In the case of rape, corroboration must not be sought by the judge if, in the particular circumstances of the cases before him, he is satisfied that it is safe to rely on the evidence of the prosecution. If the prosecution is able to give a vivid account of how she has been sexually harassed and sexually harassed, the same can be relied on and the conviction can be recorded.
In the State of Maharashtra v. M.M. Madikar, it has been empathically stated that there is a rule or prudence requiring the corroboration of the victims in the case of rape.
At this juncture, I may state that the courts sometimes emphasize the lack of physical injury, the lack of corroboration of medical evidence, the lack of alarm, the lack of evidence of resistance and other ancillary factors. From this point of view, the prosecution is unbelieved or the court comes to the conclusion that there is consent.
The Court of First Instance in the case of State of H.P. V. Mange Ram, has clearly stated that if the prosecution submits its body to fear or terror, the same would never amount to consent. In that case, their lordships also held that, in all circumstances, in the absence of any violence against the victim’s body, there would be no inference of consent.
In Rajasthan state v. N.K. , where the Supreme Court held that the absence of injury on the person in charge of the prosecution was not necessary to falsified the allegation or to be regarded as evidence of consent on the part of the prosecution.
The cruelty of Dowry and the death of Dowry
Other offenses that relate to women and have become false and excessive are offenses under Sections 304-B and 498-A. The apex court has given a broader meaning to the concept of cruelty enshrined in Section 498-A of IPC. A case may not be referred to in Section 304-B where the ingredients are not satisfied but where cruelty is otherwise established, the judge is entitled to record the conviction referred to in Section 498-A. The components necessary to be satisfied for the offense referred to in Section 304-B are as follows:
- The death of a woman is caused by burns or bodily injuries.
- It happens otherwise than under abnormal circumstances.
- And the above two factors have emerged in the seven years of the girl’s marriage, and
- Shortly after her death, she was subjected to cruelty and harassed by her husband or her relatives;
- This is related to the demand for a dowry.
Suggestions and comments
- A broader social movement to educate women about their rights, to overcome the threat, is needed more particularly in rural areas where women are still largely uneducated and less aware of their rights and easy to exploit.[1]
- It is expected that the courts would deal with such cases in a more realistic manner and not allow the criminals to escape due to procedural technicalities or insignificant lacunae in the evidence, as otherwise the criminals would be encouraged and the victims of the crime would be totally discouraged by the unpunished crime.[2]
- The courts are expected to be sensitive to cases involving crimes against women. The verdict of acquittal of the Court of Justice in the case is a fitting illustration of the lack of sensitivity on the part of the Court of Justice.[3]
- Another fact is that the delay in filing F.I.R. in the case of rape depends on the facts of each case. The victim doesn’t rush to the police station immediately to lodge and F.I.R. has to overcome the trauma. The family members are consulted and a decision is taken. All these circumstances must be kept in mind[4].
- It is noted that some judges needlessly emphasize the presence of sperm in the private parts of the victim. It must be borne in mind that the definition of rape has a different connotation. Mild penetration would have met the ingredients of the crime. There may be a number of circumstances that affect the presence of spermatozoa, and therefore the emphasis on spermatozoa is unjustified.[5]
Concluding
Violence is part of the background to many legal disputes, even though it is less often the central issue before a court or tribunal. The examples above are just illustrations. A lot of others could have been chosen to make the same point.
[1] Joti journal, October 2002, Vol.3, Judicial Officers’ Training & Research Institute, High Court of Madhya Pradesh, (2002).
[2] Agnes, Flavia, Law and gender inequality- the politics of women rights in India, Oxford University Press, New Delhi, (1999)
[3] Graycar, R., & Morgan, J., The Hidden Gender of Law, Federation Press, Sydney (1990).
[4]. Commonwealth to Stamp Out Gender Bias in Law Curricullum, Media Release from Minister for Employment, Education and Training 23 March 1994
[5] Manorama Yearbook, 2003, 38th publication, Malayala& Manorama, Banglore, (2003).
Author: Arvind Bhati,
Lloyd law college 3rd year BA.LL.B student