Domestic Violence during the Coronavirus Lockdown: Indian Legal Framework and International Obligations – By Shireen Moti, Michelle D’souza and Mahak Jain

The United Nations defines violence against women (the “VAW”) as, “any act of Gender based violence (the“GBV’) that results in, or is likely result in physical, sexual, psychological harm or suffering to women, girls, men and boys, as well as threats of such acts, coercion, or arbitrary deprivation of liberty” (United Nations Declaration on the Elimination of Violence against Women, 2013; Krantz, 2005). Increasing research has highlighted the health burdens, intergenerational effects, and demographic consequences of such violence (Ram, 2019).

GBV is widely recognized as a violation of basic human rights (National Health Family Survey, 2015-2016). GBV is a global pandemic that affects 1 in 3 women in their lifetime. It is estimated that 35 percent of women worldwide have experienced either physical and/or sexual intimate partner violence or sexual violence by a non-partner (not including sexual harassment) at some point in their lives (WHO, 2013). Domestic Violence (the “DV”) is one of the most common forms of GBV against women (World Bank, 2019).

DV is a global issue

DV is a worldwide crisis. It is not only an individual’s problem but also a problem for the community, society, and a nation with serious consequences for the victims, their families, and their workplaces (Sallh, 2018). DV has no boundaries and affects all genders, religions, racial groups and cultural groups, and different socioeconomic and sociopolitical classes (Javier and Harron, 2018, p.15). DV cuts across class, caste, age, economic strata, geographic region, employment status, and literacy level and has culminated into a social phenomenon justifying marginalization and exclusion of women (National Health Family Survey-3, 2005-2006).

The UN Women reports that an estimated 87,000 women who were intentionally killed in 2017 globally, more than half (50,000 – 58 per cent) were killed by intimate partners or family members, meaning that 137 women across the world are killed by a member of their own family every day. More than a third (30,000) of the women intentionally killed in 2017 were killed by their current or former intimate partner (UN Women, 2017). According to the World Bank violence against women is estimated to cost countries up to 3.7% of their GDP, more than double what most governments spend on education (World Bank, 2019).

DV is a serious issue in India with 37% of women reporting being beaten at some point in their lives in national surveys (Chattopadhyay, 2016). As per the National Family and Health Survey – 4 2015 -16 (the “NFHS-4”) data shows a general fall in the overall percentage of married women who experienced violence at the hands of their partners. Spousal violence of ever-married women in Haryana increased from 27.3% to 32% in 2017.

The National Crimes Record Bureau 2017-2018 (the “NCRB 2017-2018”) provides that the number of cases registered under the “crime against women” category in 2018 was 3,78,277, up from 3,59,849 in 2017 and 3,38,954 in 2016 (NCRB, 2017 – 2018; NCRB, 2016-2017; NCRB, 2015-2016). More than an increase in crime rate, it can be said that this is an increase in reporting due to factors such as, greater awareness and women coming forward to report such crimes (Mallapur, 2017).

No universally accepted definition of DV

DV is generally defined as violence that occurs within the domestic sphere perpetrated by both private and state actors, constitutes a violation of the human rights of women (Coomaraswamy, 1999). The practice of DV constitutes a breach of internationally recognized rights such as the right to be free from torture and inhuman or degrading treatment; the right to private and family life; and, in some circumstances, the right to life itself. It is only relatively recently that DV has been analysed through the lens of human rights law (McQuigg 2016, p.1009).

However, there is no universally accepted definition of DV (Department for Constitutional Affairs 2004, p.7). There is little or no consensus about the definition of DV. In part, this is because definitions of violence depend on social valuations and these, in turn, depend on changing socio-cultural conditions (Summers and Hoffmann 2002, p. 40). Different professional groups vary widely on how they define violence. Each is likely to adopt a definition that best fits its own overall mission and social function. Thus, definitions range from the very broad (“if a woman experiences it as violence then it is violence”; Schweikert, 2000, p.69) to the very narrow (the batterer’s violent conduct is recognized as such only if it violates provisions of the criminal code) (Summers and Hoffmann 2002, p. 40).

None of the UN Human Rights Treaties make any express reference to DV.  However, the UN Human Rights bodies have brought the issue of DV within the scope of right to life; right to not be subjected to torture, or other forms of cruel, inhumane and degrading treatment; the right to equality; the right to be free from all forms of discrimination; the right to the highest standard attainable of physical and mental health (McQuigg, 2017). 

It is noteworthy that Radhika Coomaraswamy, the former United Nations Special Rapporteur to violence against women, its causes and consequence in her 1996 report on ‘violence in the family”, provided a framework for model legislation on DV. The report defines violence in the family as violence perpetrated in the domestic sphere which targets women because of their role within that sphere or as violence which is intended to impact, directly and negatively, on women within the domestic sphere. Such violence may be carried out by both private and public actors or agents (Radhika Coomaraswamy, 1996).

This conceptual framework intentionally departs from traditional definitions of DV, which address violence perpetrated by intimates against intimates, or equates DV with woman ­battering. It is more in keeping with the United Nations Declaration on the Elimination of Violence Against Women which, in article 2, defines violence as encompassing, but not being limited to “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” (Radhika Coomaraswamy,1996).

International Law and DV

International instruments relevant to the issue of DV include Convention on Elimination of Discrimination against Women (the “CEDAW”), General Recommendation No. 19 of the CEDAW Committee, resolutions of the UN General Assembly, including the UN Declaration on the elimination of discrimination against women, its causes and consequences, and the resolutions on the Commission on Human Rights. Of these instruments in strict legal terms, only CEDAW is binding on states. The Convention was adopted by the UN General Assembly in 1979 and came into force in 1981 (McQuigg, 2017). 

The protection of human rights has advanced significantly since India achieved independence. The adoption of the first democratic Constitution in 1949 marked progress towards developing a normative framework conducive to the protection of women’s human rights. India has ratified numerous international human rights instruments, including the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, the CEDAW (Manjoo 2014, p.9).

The Indian Constitution, special legislation and DV

The Indian Constitution 1950, is a significant instrument for the protection of women in India (Misra, 2007). The preamble of the Constitution seeks to secure to its citizens justice – social, economic, political, liberty of thought, expression, belief, faith and worship, equality of status and opportunity, and promote fraternity assuring the dignity of women (Preamble, Constitution of India, 1950). It provides for equality (Article 14), non-discrimination on the basis of sex (Article 15), positive discrimination in favour of women (or affirmative action) (Article 15(3)), equality and non-discrimination in employment and service conditions (Article 16), and right to life and liberty (Article 21) (Agnes, 2009).

The Government of India has enacted several laws to tackle DV, including the Dowry Prohibition Act, 1961 (the “DPA”) which is applicable in cases of violence inflicted in connection with demands for dowry. The DPA codified and made explicit the definition of “dowry” as “any property or valuable security given or agreed to be given either directly or indirectly. Dowry death refers to when a husband or his family abuses or kills a bride in retaliation for his not having received sufficient dowry from the bride’s family either by one party of the marriage to another, or by any other person; or by the parents or any other person to either party or any other person. The DPA provides a penalty of imprisonment for a minimum of six months and a maximum of two years for demanding a dowry (Wilcox, 2012).

Another legislative measure to combat DV includes the amendment of the IPC and introduction of Section 498A in the year 1983 to protect married women from being subjected to cruelty by the husband or his relatives. ‘Cruelty’ has been defined comprehensively and includes inflicting physical or mental harm to the body or health of the woman and indulging in acts of harassment with a view to coerce her or her relations to meet any unlawful demand for any property or valuable security. Harassment for dowry falls within the definition of cruelty in the IPC.  The IPC prescribes a punishment extending to 3 years and fine. The offence under Section 498A is cognizable, non-compoundable and non-bailable (Government of India, Law Commission of India, Section 498A, Report 243, 2012).

In 2005, the Parliament passed the PWDVA, which was a result of a consistent campaign by the women’s movement which also played a role in its drafting (Patherya, 2017). It is a wide-ranging law that protects women from various types of violence (physical, sexual, verbal, and economic) and imposes positive obligations on the state to protect women from violence (Jain and Abeyratne, 2012). It was enacted with a view to provide for more effective protection to the rights of women who are victims of violence of any kind within the family (The Government of India, Law Commission of India, Section 498A, Report 243, 2012).

The PWDVA provides a comprehensive definition of DV. It includes not only physical, but also verbal, emotional, sexual and economic violence. The PWDVA provides for criminal sanctions and civil reliefs of protection and injunction. The act includes within its scope urgent, protective injunctions, dispossession from the matrimonial home or alternate residence. In addition, it provides for economic rights including maintenance and compensation (Agnes, 2019).

The Government of India has taken measures for the successful implement of DV laws in India. One such measure is the founding of the National Commission for Women (the “NCW”) and the National Human Rights Commission (the “NHRC”) have, which have mandates related to DV. The NCW’s main function is to look into the implementation of safeguards provided for women under the Constitution and other laws and to make recommendations to the central government on how to improve these measures. The NHRC has a broad to investigate human rights violations, including cases relating to DV (Wilcox, 2012).

DV during COVID-19: Pandemic within a Pandemic

As countries around the globe go on lockdown due to the current pandemic, victims of DV have been confined at home with their abusers. Isolated from their families, the general public and resources that could aid them; most perpetrators have used the lockdown to further isolate victims. Protecting individuals from the virus has adversely affected victims of domestic violence.

DV encompasses intimate partner violence as well as family violence and refers to patterns of coercive and abusive behavior by a partner or members of a family or household in order to maintain power and control over an individual (Hasselbacher, 2010). It is a form of gender-based violence which has its roots in exploiting power dynamics between genders. In 1989, the UN Report on Violence against Women in the family stated that DV can be associated with the notion of inequality between men and women. Indian society with its strong patriarchal norms has provided women with little to no autonomy and has treated them as second class citizens from birth. There is no reduction in crimes against women even during the lockdown. In April 2020 alone, 27 dowry deaths were recorded while 22 dowry deaths occurred in April 2019 and overall a rise of 30.4% has been recorded (Thakur, 2020).

Reports on the increasing rates of DV cases in various countries around the world are beginning to surface. China has reported that the cases of DV have tripled during the lockdown, France observed a 30% increase in DV cases, reports of DV in Brazil have increased 40-50%, calls to DV helpline have increased in Cyprus and Singapore by approximately a third (Sandoiu, 2020). Calls to helpline services in Argentina has risen by 25%, a charity centered around domestic abuse in the UK reported a 700% increase in calls by victims while the separate line for perpetrators who wish to change their behavior only saw an increase of 25% in calls (Sandoiul, 2020). Italy, one of the countries severely hit by the pandemic, has also reported that the cases of DV are on a rise (Campbell, 2020).

In Spain, a DV related homicide has been reported (Campbell, 2020). In the United States, across 15 metropolitan cities, the lockdown led to a 10.2% increase in DV cases reported (Grierson, 2020). The World Health Organization’s regional director for the European Union, Hans Kluge, stated that countries are reporting a 60% increase in calls by women experiencing DV at the hands of their intimate partners in April 2020 as compared to April 2019 (AFP, 2020). The Technical Officer for Gender and Health at the WHO also reported an increase in reporting of DV cases from almost all countries. The UN agency for sexual and reproductive health (UNFPA) estimates 31 million more cases of DV in the world if the lockdowns are extended for another six months (AFP, 2020).

In India, between March 23 and April 16, 587 DV complaints were received by the National Commission for Women’s Complaint and Investigation Cell which was a significant increase from the 396 cases reported between February and March (Agarwal, 2020). Tamil Nadu police reported that they had received a total of 5740 complaints of DV since the lockdown began, of these only 5702 were settled while 38 cases were registered and the perpetrators were arrested (Nair, 2020). The growth in the DV cases around the world is likely to continue throughout the pandemic and the present cases may only be a minute representation of the actual instances of violence as victims cannot report abuse in the presence of their perpetrators.

Some reasons for the sudden surge in DV cases

DV involves a pattern of psychological, physical, sexual, financial and emotional abuse. Acts of assault, threats, humiliation, and intimidation are also considered acts of violence. Social distancing and isolation during lockdown has put women suffering from DV at a higher risk. Children as well have faced increased vulnerability to DV during this hard time. The pandemic lock down has created a harsh financial crisis with increased expenses and lower incomes. This lockdown has resulted in financial stress in the shape of pay cuts coupled with job cuts including lower morale and expectations of getting employment opportunities post-lockdown. This has been the reason which has contributed to higher levels of stress, uncertainty, anxiety and other such emotions adversely affecting mental health of all the members of the families (Jha, 2020). Disturbed mental health of abusers has become a justifiable reason and defence for the beating and the bruising of their wives and children.

Another prominent reason for a spurt in cases of DV all around the world has been disconnect from social support systems. Absence of vent has added to the build-up of frustration in all family members. Due to lack of social activities and dissociation from social groups have pushed the male members of the family to take their frustration out on their wives and children through quarrels, humiliations and assaults. This lockdown in no way has been merciful on women, they don’t just have to deal with intimate partner violence but also perform all household duties.

The absence of any household help in congruence the patriarchal mindset of participating in household chores has added salt to the misery of the women. Alongside this burden they have to run their households with minimum financial resources and restricted access groceries and other utilities. These victims of DV are facing severe physical and mental health difficulties like depression, sexual disorders, unwanted pregnancies, chronic diseases and post-traumatic stress disorder.

There is another complication in the Indian family system, where the wives living in joint families are subjected to double harassment and violence (Deshapnde, 2020). The situation could not have been worse for women members of the family to escape from domestic violence, with limited or no access to police, distress women help centres and even courts. On one hand the police stations were either closed for the general public or police personnel were busy in pandemic related duties and on the other Courts were handling only the urgent cases. This is the reason why the abusers have not hesitated in assaulting and hurting their family members.

Other contributing factors of intimate terrorism includes the possibility of the husbands to exercise constant surveillance over their wives through monitoring phones and inability to travel to counselling centres for seeking remedies and recourse (Kasarla, 2020). “Additionally, increased home drinking or forced abstinence from alcohol due to the closure of local wine shops has aggravated the complicated relationship between alcohol and domestic violence” (Kasarla, 2020). It is ironic that the quote “Stay Home, Stay Safe” is not of much significance to women who are subjected to this unwanted domestic brutality and cruelty also during the Coronavirus pandemic lockdown. These are some of the dominant reasons of stress of confinement that have caused such an unforeseen multiplication of intimate partner violence.

Potential solution

The sudden rise in DV cases in India, compels the stakeholders to adopt a multi-pronged approach. Free movement of social workers and categorizing support services for DV survivors as ‘essential services’, by the government, is one potential solution. Better policy frameworks for mental health and volunteering amongst professional counselors, lawyers, trained mediators, psychiatrists, and psychologists, is the need of the hour. The Government should announce a financial support package of non-governmental organizations providing support in terms of helplines, counselling, access to shelter homes, medical treatments and other support services to victims of DV (Sinha, 2020). The media should act more responsibly and refrain from sensationalizing cases of DV, especially during times of distress (Joy, 2020). While the intervention by police under normal times, proves to be an effective tool to deal with DV cases, during these unprecedented times, approaching the police for their services should be a matter of last resort.

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Shireen Moti is Assistant Professor of Law and Director of Alumni Relations at O.P.Jindal Global University. Michelle D’souza and Mahak Jain are both third year law students at JGLS. 

Disclaimer: The views or opinions expressed are solely of the author.