Introduction
The coronavirus is one of the biggest threats that the world is facing, but it’s not the only one. We fail to see another equally dangerous crisis: domestic abuse. Domestic violence is an umbrella term for coercive, controlling or threatening behavior, violence or abuse faced by an individual from an intimate partner or a family member. The acts that constitute domestic violence may be classified in the following three broad categories:
a. Physical abuse: beating, battering, sexual violence, etc.
b. Mental, psychological or emotional abuse: humiliation, intimidation, unfaithfulness, etc.
c. Financial or economic abuse: creation of forced dependence by control of or limiting access to assets or earning potential of the victim, etc.
Contrary to popular beliefs, domestic abuse is prevalent in different forms throughout the classes and not restricted to only the rural areas and poor households. Earlier, the conventional notion that international human rights do not apply to “private” harm was the major hindrance in considering domestic violence as a human rights violation. However, with the passage of time, various international human rights institutions recognized the devastating effects it has on women, children and families, as a result of which, a plenitude of international law instruments now acknowledge it as a human rights violation.
Since majority of the domestic abuse is gender-based violence towards women, this article restricts its scope to intimate partner violence, with concentrated focus on India. The article first analyzes the human rights violated by domestic abuse and studies the spike in the number of cases during the lockdown phase. It then explains the remedies available to the victims in the current Indian legal framework and the problems they face in this endeavor. The article concludes by looking into concrete short-term and long-term measures that must be implemented to reduce the menace of domestic violence in India and the world.
Human rights violated by domestic violence
Contemporary theories have explained that the aim of violence is to establish power and control over another using intimidation and coercion. Domestic violence violates three core fundamental human rights as guaranteed under the Universal Declaration on Human Rights: i. right to life (Article 3), ii. right to bodily integrity (Article 3), and iii. the right to be free from inhuman or degrading behavior (Article 5). In addition, human rights scholars posit that a state is responsible for the violation of human rights in cases of domestic abuse where:
a. State authorities fail to exercise due diligence to prevent, investigate and punish the acts of violence against women; and
b. States fail to ensure equal protection of laws for all citizens, i.e. discrimination between the victims of domestic abuse and victims of any other crime perpetrated by strangers.
The UN Committee on Elimination of All Forms of Discrimination Against Women (“CEDAW”), in its eleventh session, officially adopted General Recommendation 19 interpreting the CEDAW Convention to have prohibitive effect on violence against women in public as well as private sphere of a country. In addition to the above, Article 2 of the Declaration on the Elimination of Violence against Women gives an opportunity to the victim of domestic abuse to seek protection on an international forum, when it was denied by her own state. In Jessica Lenahan (Gonzales) v. United States, the Inter-American Human Rights Commission (“IAHRC”) held the United States responsible for violating the human rights of the petitioner by not enforcing the legal protection given to her against her abusive husband. The US police administration failed to prevent the killing of the petitioner’s three daughters by the husband, which prompted IAHRC to recommend reformation of the enforcement of laws to prevent gender-based violence, including domestic violence.
In order to curb the spread of COVID-19, the lockdowns imposed globally have resulted in the shift of the focus of authorities, due to which the human rights of victims are being flouted excessively. The gravity of the situation has risen manifold and needs urgent attention.
Spike in domestic violence during Covid-19 lockdown
In the times of the current pandemic, where unemployment, disease and disappointment are rampant, abusers have more excuses to take their “frustration” out on women. The lockdown has served as the perfect opportunity for the abuser to practice “intimate terrorism” on his partner, which is evident globally, even in developed countries like the United States, France, Russia and Australia. The increase in the number of domestic violence instances globally is so disturbingly drastic that it is being referred to as “the shadow pandemic”.
The lockdown imposed has resulted in increase of domestic violence incidents reported in India, with a higher effect in red zones as compared to green zones. In the first three weeks of the lockdown, the cases registered online by the National Commission of Women (NCW) recorded a more than two-fold increase, which are nowhere close to the actual number of such incidents. As registration of complaints with NCW is done primarily through the online mode, reporting depends on accessibility of internet, and women with access to internet constitute around one-tenth of the total population of our country. To ease the reporting procedure, the NCW had started a new WhatsApp helpline number. The rise in the figures compels one to ponder upon the menace of domestic violence and the need for a prompt solution for the same.
Solutions available to victims
In India, the Protection of Women from Domestic Violence Act, 2005 (“DV Act”) is the primary legislation specifically addressing the issue of domestic violence and is a laudable attempt to fill the void in the legal framework governing this sphere. The term ‘domestic violence’ is elaborately defined under Section 3 of the Act. Under the Indian legal framework, a victim of domestic abuse may resort to any of the following recourses:
Under Section 12 of the DV Act, the victim can directly file a complaint with a magistrate against her ‘abuser’, the meaning of which is not restricted to her husband. Upon such complaint, the magistrate may bar the abuser from communicating with or approaching the complainant, to let her reside in the shared residence as a matter of her right, and/or to award her a monetary compensation.
After the 2015 decision of Bombay High Court in the PIL filed by Dr. Jaya Sagade, no court order is required before a victim of domestic violence approaches a ‘service provider’, which includes NGOs, counselors and police officers.
The victim, or any of her relatives, who has filed a complaint under the DV Act, can also file a complaint under Section 498A of Indian Penal Code, 1921 (“IPC”), or under the provisions of Dowry Prohibition Act, 1961, or both simultaneously, if an offence mentioned thereunder, such as acts of cruelty by the husband or any of his relatives, has been committed. Cruelty under the IPC is not restricted to physical or sexual violence, but also includes intimidating to give up her property, mental torture, denying food, locking in or out of the house, inter alia.
A zero-FIR of an incident of domestic violence can be filed at any police station, even if the place of offence does not fall within the jurisdiction of that police station. In cases of cognizable offences, a police officer cannot refuse to lodge a Zero-FIR, after the enactment of Criminal Law Amendment Act, 2013.
Crime Against Women cells are found in police stations on district level across India to address the incidents of violence against women by an intimate partner or a domestic relative.
Problems in the available solutions
Although the most advisable solution given to a battered woman is to abandon the abusive relationship, it comes with great dangers of, inter alia, further torture and death threats from the abuser, no support from her own family, loss of financial support from the abuser and loss of self-esteem. The society also looks down upon this issue with shame and guilt. Moreover, the social construct of patriarchal societies is such that most forms of domestic violence are sometimes expected and accepted. According to an NFHS study, 52% women and 42% men believed that a husband is justified in beating his wife. Most women are oblivious to the signs of abuse and of the laws that are enacted for their protection. Even if women do initiate legal action, the legal process is arduous and involves great struggle before finally getting relief.
All the above-mentioned problems existed when women had open access to help and legal remedies. However, in the current scenario of lockdown, the problems of women have aggravated as they are now “locked down” with their abusers. Ironically, these helpless women either have to be cautious while reporting the violence meted out to them, or silently suffer, praying for earliest possible freedom from the hell they have been pushed into.
Measures in other countries
To address the spike in cases, the steps taken by governments of certain countries may be taken as guidance by India. The French government has planned to establish pop-up counseling centers as well as to bear the cost of stay of the domestic violence victims in hotel rooms, to protect them from the abuser. The victims of the abuse may also reach out to pharmacies to seek assistance. The Italian government has launched a mobile application called “YouPol” which allows the victim to report abuse against her without making a phone call.
The way forward
Domestic abuse had been rampant around the world even before the coronavirus pandemic. The condition of women globally has only worsened with the imposition of the nation-wide lockdowns, exposing them to increased violence within their own homes, with little to no recourse. There is a pressing need to take strong measures to stop violence within supposedly the closest and the safest relationships: families.
The immediate measures include i. setting up warning mechanisms at grocery stores and pharmacies without alerting the abuser, ii. investing in online services and women’s assistance organizations, iii. classifying assistance to women in distress as an essential service, iv. arranging for temporary shelter homes where women can be shifted to safety, and v. ensuring that health workers are the first point of contact for abused women, with joint support from panchayats and women’s self-help groups.
Some long-term measures include i. introducing proper education on gender sensitization through school curricula to alter the status quo, ii. promoting greater awareness about gender-based violence through family discussion, and iii. inculcating the habit of financial independence. Although the provisions of the DV Act are wide enough to remotely punish marital rape, it is absolutely necessary to acknowledge marital rape as a crime for a better future for married Indian women.
This article is authored by Stuti Kaushik and Akshat Krishna, students of Gujarat National Law University, Gandhinagar. This article was first published on HRLPR Blog on August 6, 2020. <https://www.hrlrblog.com/post/domestic-abuse-during-lockdown-is-safety-at-homes-only-a-dream-for-some-by-hrlpr>
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