THE FEMINIST APPROACH OF DOMESTIC VIOLENCE ACT: NEED TO RECOGNISE RIGHTS OF MEN

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“Rahul was abused and tortured by his wife every day before his son. His son’s behavior was also getting influenced or affected due to the daily nuisance which was happening in their house. The violence and fights were so major and far-reaching that the neighbors also came to about the situation, but still there was nothing that he could do. One day when Rahul’s wife and son were not at home, he killed himself because he was done with the never-ending violence.”

The term “domestic violence” consists of a broad range of violent acts committed by one family member or household against the other. It usually refers to the mistreatment of a child or spouse, and includes not just physical harm but also threats along with verbal, psychological, and sexual abuse.  The connection between the abuser and the victim is the most basic way to distinguish between other assault crimes and domestic violence. In a country like India, the word domestic violence is mostly always associated with woman and is believed that is inflicted only on woman. Due to this mentality the approach of our judiciary is also feministic in nature when it comes to the victims of domestic violence and their rights. Feminism basically means the belief in social, economic, and political equality of the sexes or advocacy of women’s right on the ground of equality of sexes. The phrase equality of sexes is not given due weightage to the rights of male victims as opposed to females.

Domestic violence is often seen as victim to be a female and a perpetrator to be male, but the evidence demonstrates that this is a false picture.  The feministic approach has led to limiting the understanding of domestic violence as only against women.  It should instead been given a gender neutral approach. This is so because spousal abuse is not something that is faced by only one gender. The usual presumption or the stereotypical notions that has been existing in our society since bygone is that men are supposed to be powerful and strong and should not express their emotions publicly. If they show or expose their vulnerabilities then they are labelled as being sissy, effeminate, and many other derogatory terms. This ideology has been prevalent since a long time continuing till date.

REASONS FOR DV TO BE FEMALE ORIENTED

Our legal system focuses more on female counter parts or can be called female centric. This is so because during the ancient times Indian women held a prominent position of respect in the society as stated in Rig Veda and other scriptures. Although later, due to changes in social, political and economic areas, women lost their status and were   declassed to the background. Many   egregious   customs   and traditions stepped in which enslaved the women and tied them to the boundaries of the house. India is country where the male is greatly revered. There was lack of acceptance of women’s right from the male dominant society due to which Indian women suffered substantially. The females used to get mentally and physically abused by their husbands and their in laws in their domestic household. The male dominance in the society was overriding the rights of women in the form of domestic violence.

The Indian constitution states that women are legal citizens of the country and that they have equal   rights as compared to men. In order to protect these rights of women the Domestic Violence Act was passed. The purpose of the act was to protect the rights of women and not men keeping in mind the male dominance during that time. 

WHY IS THERE A NEED TO RECOGNISE THE RIGHTS OF MEN?

The law is not static in nature it is dynamic. With evolving times there is a need to change the law as well. There are pre-conceived notions that men do not suffer from intimate partner violence. In a study conducted by National Center for Biotechnology Information it was shown that in a study of 1000 married men among the various age groups from 21-49 years of age in the rural villages of Haryana, 52.4% of males experience gender-based violence in India. 51.5% of males have experienced some sort of torture or violence at the hands of their wives or their intimate partners in their lifetime. 10.5% of males have experienced gender-based violence at the hands of their wives or intimate partners in the last 12 months. Emotional and physical abuse are the two most common types of domestic violence or spousal abuse against men. [1]

In another study by Save Family Foundation, which interviewed 1,650 husbands between the ages of 15 and 49 years, selected through random sampling using a schedule adapted from the WHO multi-country study on husband’s health and domestic violence, reports that economical violence (32.8%) is common, followed by emotional violence (22.2%), physical violence (25.2%), and sexual violence (17.7%). Study illustrates the probability of abuse or violence significantly increases with the duration of marriage, especially when the marriage is more than 7 years old. [2]

Domestic violence does not necessarily mean using of physical violence. It can be in different forms as well. Like domestic violence can be

  1. Physical Violence

This may include slapping, pushing, hitting by wife, her parents, or relatives, or throwing objects like utensils, cell phones, and crockery at the husband. In physical violence, slapping was identified as the most common form (98.3%)[3] and the least common was beaten by weapon (3.3%). Out of the total, only one-tenth of the cases faced severe physical assault.

  • Psychological Violence

In emotional violence, reported 85% [1] abuse against the men was criticism, 29.7% [1] were insulted in front of others, and 3.5% [1] were threatened or hurt. Psychological violence may even occur through mental abuse for example giving threats to husband’s family under the pretext that she would wrongly accuse them of domestic violence and dowry.

  • 3)     Sexual Abuse

This can happen if the husband denies sex. According to a study by Malik and Nadda, only 0.4% men had experienced sexual violence.

  • Emotional Abuse

It can be defined as demeaning an individual’s self- worth, self esteem or maybe both. Polsky and Markowitz (2004, p. 2)[4] defined the term as “involving (emotional) trauma to the victim caused by acts, or coercive tactics.” The types of behaviors that are defined as emotional abuse are name-calling, humiliation, low self-worth, and manipulation

Considering all the above data there is a serious need to amend the current domestic violence act and include the rights of men and laws that could protect men from intimate partner violence that is inflicted by women. The psychological and the sociological perspective of the society are also required to be changed.  There are ample number of cases which suggests that the law has changed or has been formed because the community as a whole fails to think rationally when it comes to comparing that the men and women can commit the same amount of heinous acts and hence should be equated on the same pedestal. Even if a man thinks of reporting the domestic abused caused to him the social stigmas will hold him back.

There is a great amount of social stigma against men abused by women, where most of the male victims refuse to come out in open and share their ordeal with their family, friends or colleagues. Male victims of domestic violence are mocked and considered as chicken-hearted. Such thinking is chauvinistic and it is harmful. Due to these social stigmas which surround them they often feel discriminated because of which they feel apprehensive about opening up regarding the violence which they are facing. The fear of being judged overpowers the pain or mental or physical abused that they might be going through. They think that their efforts of raising their voices against the ill-treatment or abuse will go in vain because of the gender specific laws. Men are usually conceived as protector of the family and if they speak against the violence faced by them then they would feel that they have failed to play the role of the ‘man’ of the family.  

COMPARISION WITH THE OTHER COUNTRIES

One in nine men within the United States of America go through some sort of violence from their wives. One in seven men has been the victim of some form of physical violence by their wives.

Within the United Kingdom, two out of five victims of domestic violence are men. This sets aside the ideology that men are not always the perpetrators. As per the men’s rights campaign group parity domestic violence is often overlooked and most of the time their attackers are not penalized by the authorities.

As reported by the British Crime survey, 40% of the domestic abuse victims were men, between the year 2004-2005 and 2008-2009. But in the recent years this figure has reduced to 37.7%.

Also, in Australia, One in Sixteen men are exposed to domestic violence since 15 years of age, either in the form of physical or sexual torture, either from their wives or the person with whom they are cohabiting. As per the records, at least one man is killed in a month as a consequence of facing domestic violence, either from their current or previous partner.

These surveys and studies from numerous countries reveal that the intimate partner violence or spousal abuse amongst the men is quite common at the hands of their wives. Hence, the applicable provisions ought to be brought in force in order to deal with the domestic violence in a more neutral way.

ROLE OF GENDER BIASED LAW

Gender is a social construction which is usually affected by caste, country, race, culture, sexual inclination, rituals, and ability and so on. In numerous South Asian nations like India, the gender roles are very stringent and inflexible. This rigidness leads to gender biasness and the stereotypical thinking. Men who face the intimate partner violence, partner usually being a woman can do nothing about it as women are usually immune to the provision which lays down punishment of gender based violence under the Indian Penal Code.

As per section 498A of the Indian Penal Code, only a man can be held responsible for cruelty to his wife. There isn’t any subsection or a provision that will make a woman accountable for the domestic or spousal violence that she causes. Even when the men attempt to open up and report about torment and violence which they are going through, nobody pays attention including the police. Raising a voice against domestic violence would be regarded as whining and the men would be given labels such as feeble or effeminate by the society.

Judiciary plays a pivotal role in safeguarding the interest of men and women. In the present scenario the judiciary stresses upon gender based law in clear articulation that there is involvement of ethics when it comes to gender based violence. Instead of giving the gender biased judgement by way of gender biased law, the judges should consider both national and international aspect of domestic violence against men and women before deciding a case. It is the responsibility of the three organs of the state which are legislature, executive and judiciary to take the suitable step to fend off violence against men and women. The judicial system of the country provides for procedure that would protect the innocent and at the same time also afford opportunity to be heard given the due process is followed immaterial of the litigants status and position. Although, there are a few cases through which our judiciary has dealt regarding the domestic violence against men like the Hiralal P. Harasona and others v/s Kusum Narrotamdas and others. In this case the court held that now even men can initiate the proceeding against the domestic violence faced by them. Similar judgement have been given by the court that provides justice to men in the case concerning domestic violence, given that their actions are not contradicting provisions established by law.

The Indian Judicial system of India provides for the procedure to protect the innocent person. The judiciary discover and initiates the proper action against the guilty and ensure that the due process as provided by the constitution is followed for all the litigants. It provides to redress all the matters of violence against women and guarantees that the guilty is held accountable or is punished whereas when there is violence against men by women there is hardly such provision for redressal.

Usually the honorable trial court decides the matters regarding women and children in the country while on the other hand the Supreme court has the original jurisdiction regarding Public interest litigation as well as writ petition which deals with rape and murder of women including dowry deaths.

Even though there are multiple acts which favours men but the judiciary while handling the case of domestic violence against men should acknowledge the fact of violence and should go deeper in order to figure out the gap in our system which is faced by the society. The Supreme Court has wide discretionary power to adjudge this matter and hence can suggest the legislature the issue which is being overlooked in regards to domestic violence against men. Despite the fact that there are various judgements given by the Supreme Court in favour of men, but the judicial system is yet to find out the root cause of domestic violence and ways to curb it by the way of implementation of act and provide remedy for the same. Some of the cases decided by the courts are explained below.[5]

Rajesh Kumar & Ors v. State of U.P, it was decided that any false case which the wife makes against the husband and his relatives, should must be fist referred to the family committee established by the District Legal Service Authority (DLSA), should preferably comprises of three members and the construction of this committee may be reviewed from time to time by a district judge who is also a chairman of legal service authority. Furthermore, the members of the committee should either be social workers or retired working officer. Each matter will be referred to the committee and the committee either personally or through telephone should interact with them. After the discussion a report would be submitted to the magistrate and if he thinks that the evidence and the incriminating material is conclusive or suffices to makes a case then only the case would be admitted.

In the case of Arnesh Kumar v. State of Bihar, the court held that, given the fact of rampant misuse of the law, it would only be prudent and advisable for the police officers not to make an arrest in case of domestic of violence unless, it absolutely evident after the investigation that there is some legitimacy to the claim, now that maximum punishment under section 498-A of Indian Penal code is 3 years and under section 4 of dowry Prohibition Act is 2 years with fine. Furthermore, Section 498-A is a cognizable and non-bailable which is now acting more as a weapon for woman rather than a shield by the resentful wives, as it is the most easy way to harass the husband and his family by getting them arrested under this provision. It is has taken a place of pride but in a dubious or cryptic manner.

In quite a lot of cases even the grandparents of the husband or any of his relatives residing abroad for decades have also been arrested. Therefore, it was held that it would wiser for the general public especially men to safeguard their rights that they are not arrested without any reasonable cause and due investigation should be conducted in order to check the legitimacy of the allegations. Hence, before making an arrest under section 498A of Indian Penal Code, the police should comply with section 41 of the criminal procedure Code, so that the husband’s family is not arrested by the police officials.

CONCLUSION

Spousal abuse is not something which is being faced only by women. It is very much being faced by men as well. Large number of domestic violence reports goes underreported because of the stereotypical notions of the society and also because we try to cage our thinking when it comes to gender. Due to these stereotypical notions and ideology many men feel that the situation would shortly get better and this is the reason that they don’t tend to report about the domestic violence which they are going through. Any form of violence, it may be physical or mental is a gross violation of law and human rights. These underreported cases of domestic violence, may ultimately end up in separations, divorces even depression or anxiety which may lead to suicides.

Additionally, due to the gender biased provisions in law like the Indian Penal Code which favours women, there are plethora of fake allegations made by women against men for not only domestic violence but for heinous acts of rape as well. Since, the law supports the women it would automatically assume that men can never be at the receiving side of the crime. Women are not required to provide for any sort of evidence to order to prove the authenticity of the claim.

In today’s changing times, where we have adopted modernization and westernization, the societal values and cultural norms have changed as well. Earlier, men were considered as a protector of the family but now, since, both men and women are working equally in order to provide for the family and also managing their homes by equally contributing the incomes and dividing the expenses. So, now, if society is considering men and women at the same level and giving them equal societal status, the society should also consider that women are also capable of committing the crimes which a man can commit. It is not right to categorize the crimes on basis of gender because men are no longer stronger than women.

It is high time that the legislatures and statutes to recognize that this is more of social or society problem and issue and the society’s acceptance cannot decide the possibility of crime. Domestic Violence against men needs to be recognized and the effective changes should be inculcated in the law, by spreading and creating awareness within people and also by breaking the stereotypes and preconceived notions.

There are always three sides to a story which is, the two people telling their versions and the actual truth. It is the responsibility of the law to figure out the truth by listening to both the parties, instead of impulsively coming upon the conclusions based on the genders. The judiciary needs to come up with its version of truth or the actual truth by way of examinations, investigation and trainings. The sad reality is that men are abused, but this fact is not acknowledged by many people in our society and instead they are left with no one whom they can turn as they fear to contradict the societal standards which is established by the stereotyping a gender by placing it on them.


[1] Jagbir Singh Malik and Anuradha Nadda’s – A Cross-sectional Study of Gender-Based Violence against Men in the Rural Area of Haryana, India https://www.ncbi.nlm.nih.gov/pmc/articles/PMC6437789/

[2] Sarkar, S., Dsouza, R., & Dasgupta, A. (2007). Domestic violence against men—a study report by Save family Foundation. Retrieved from www.savefamily.org

[3] Jagbir Singh Malik and Anuradha Nadda’s – A Cross-sectional Study of Gender-Based Violence against Men in the Rural Area of Haryana, India https://www.ncbi.nlm.nih.gov/pmc/articles/PMC6437789/

[4]  Polsky and Markowitz (2004, p. 2)  https://dc.etsu.edu/cgi/viewcontent.cgi?article=2448&context=etd

[5] Ayush verma- Domestic violence against men in India  https://blog.ipleaders.in/domestic-violence-men-india/

Author: BHUMIKA KHANDELWAL, NAVRACHANA UNIVERSITY

Editor: Kanishka VaishSenior Editor, LexLife India.

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