Gendering Legal Discourse: A Critical Feminist Analysis of Domestic Violence Adjudication in India

By Chattopadhyay, Sreeparna | Law, Social Justice and Global Development Journal, December 2016 | Go to article overview

Gendering Legal Discourse: A Critical Feminist Analysis of Domestic Violence Adjudication in India


Chattopadhyay, Sreeparna, Law, Social Justice and Global Development Journal


ARTICLE INFO

Issue: 2016 (2).

This article was published on: 16 Jan, 2017.

Keywords: Gender, Domestic Violence, Law, Feminist Jurisprudence, India.

ABSTRACT

Domestic violence is a serious issue in India with 37% of women reporting being beaten at some point in their lives in national surveys. While this is likely to be an undercount given the stigma associated with intimate partner violence and women's lack of access to the justice system, it is noteworthy that conviction rates continue to be extremely low even for the those cases that end up in the Courts. Drawing from critical legal anthropology and feminist jurisprudence, I argue that legal language, procedures and discourses attempt to normalise domestic violence by deploying discursive strategies such as consistent and pervasive use of the passive voice diminishing perpetrator responsibility, trivializing violence by avoiding the use of violent attributions in describing violent acts, and shifting blame to victims. Of the 787 cases registered under Section 498(A), disposed by the Bombay High Court between 1998 and 2004, just 6% obtained a conviction where the victim was alive, and 35% to 39% were convicted where victims had committed suicide or had been murdered. Conviction rates were extremely variable with many judges acquitting all the cases that they tried and just two judges convicting a third or more of the cases brought for trial. This disparity was further consolidated by procedural inconsistencies including the treatment of evidence, extent of documentation required to prove a history of abuse, the classification of interested witnesses and retractions by medical examiners, who were seldom cross-examined. The findings present a very troubling picture for gender justice in India, suggesting that what we need are not additional laws but a gender-aware approach to the implementations of existing laws.

INTRODUCTION

Domestic violence (DV) is a serious problem in India with nearly 39% of women reporting physical, sexual or emotional abuse at some point in their lives (Gupta 2014). However most cases of DV are never reported to the police, as evidenced through the reporting gap between the National Family and Health Surveys, a representative, anonymous reproductive health survey in India and the National Crime Records Bureau, a central repository of all crimes in India (Ghosh 2013). While reported cases of DV have been increasing with a 55% increase between 2005 and 2009, there has been a commensurate decrease in the rates of the police filing a formal complaint by 2%, and arrests from a low of 2.19% to 1.95%. The slight increase in conviction rates for DV, up from 19.58% to 21.02% is negligible, and much lower than the average convictions obtained for all crimes (41.7%) and crimes against women (27.8%) (1).

In the last three years, there has been an expansion of women's protections in India through the legal system; for example new laws have been passed to prosecute sexual harassment at the workplace, acid attacks and stalking. These have been partly as a result of the extensive recommendations of the Justice Verma Committee, constituted after the brutal gang rape and murder of a Delhi student Jyoti Singh in 2012 inside a moving bus (2). Simultaneously and perhaps as a backlash, there have been demands from Men's Rights Organizations to repeal some of the more progressive laws, for instance Section 498(A), that protects women from DV, by arguing, that most of these cases are false and women are using these to extract alimonies during bitter divorce battles and to secure favourable child custody arrangements (Basu 2016; Oxfam 2013) (3). Men's rights groups and conservative groups such as Repeal498A.org and Save the Indian Family are discomfited by the expansion of laws to guarantee women greater rights in India, and argue that they allow for "persecution of men at every level (4), including through "fake" rape cases, prosecuting mothers and sisters' of husbands during "fake" dowry harassment and DV cases and other criminal offences against women. …

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