*

Women And Violence

S.P. Sathe

Violence means use of physical force by one person against another. Violence is often used by
the powerful against the powerless. It may, however, in exceptional situations be used by the
powerless against the powerful as for example, when the powerless person out of despair or in
self-defence uses violence. The function of the law is to delegitimate the use of violence by
anybody other than the State. The law allows use of violence by private persons only in
self-defence1. All other acts of violence by private persons are punishable because that
amounts to taking law into one's own hands. The use of violence by the State is to be made
strictly in accordance with the procedure prescribed by law. Moral questions regarding the
desirability of the death sentence are often raised by those who do not admit the legitimacy of
unrestricted power of the State to use violence.

We do not intend to dilate on the anatomy of violence. Violence is used against women in a
variety of situations mainly to reinforce women subordination. Violence is therefore a weapon
of the patriarchal ideology, which is idealised by the prevalent role perceptions of man and
woman. Violence is considered as an exhibition of manliness and powerlessness is considered
as legitimate aspect of womanhood. Therefore we have an ideal role model of a delicate,
protection-seeking woman and a strong, ruthless and aggressive man.

Women also indulge in violence, for example, a mother-in-law uses violence against the
daughter-in-law. Such violence by a woman against another woman is backed by the
patriarchal ideology in so far as mother-in-law is acting as an agent and enforcer of the
patriarchal ideology. There have been women criminals as well as dacoits. Phoolan Devi is an
example. But she became a dacoit to take revenge against the rapes committed against her by
men holding positions of power and money. It is a rare situation of use of violence by a
powerless against the powerful.

Woman subordination is sustained by the following two premises. One is that woman is physi-
cally insecure and needs man's protection. Patriarchal ideology lays heavy emphasis on vaginal

*
This articles was first published in the journal titled The Radical Humanist Vol.61, No.5,7 p.11,
(Oct. 1997).(permission to reprint this article is granted)
1
Sections 96 to 106 IPC.

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purity and therefore any sexual attack on a woman is considered as a great calamity, which
must be avoided. A woman must therefore be willing to live a protected life, which requires
her to compromise on freedom of movement and pursuit of career. Sexual assault is violence
and the fear of such violence ensures compliance on the part of the woman to the role model
perceived by the patriarchal ideology. The second premise is that a woman cannot be
economically independent. Denial of inheritance rights, unequal opportunities of gainful
employment and threat of sexual harassment in places of work sustain such economic
dependence. Women face prospect of violence, sexual and physical, if they challenge such
hegemony. A woman who accepts the restrictions on her liberty imposed by patriarchy is a
"good" woman Therefore, in rape cases; character of the rape victim is dissected to find out
whether she is a "good woman" because only a good woman has a right not to be raped.
Woman must, therefore, accept male hegemony in return for protection and security. The
patriarchal ideology, therefore, has an inbuilt justification for the use of violence by man
against woman.

Violence against women has followed the following patterns:

(a) Homicidal violence,
(b) Domestics violence,
(c) Sexual violence, and
(d) Exploitative violence.

We will describe each of these four types of violence.

(a) Homicidal Violence

Sati was practised among certain higher caste Hindus under which a widow was required to
burn herself alive on the pyre of her husband. Although such a woman was glorified, the real
motive was to eliminate an heir to property. Under the Dayabhaga system of Hindu Law,
women were given inheritance rights. Sati prevailed more in the areas governed by Dayabhaga.
However, it occurred in the areas governed by Mitakshara also. It was an instrument of
idealization of woman subordination. A woman who dies during the lifetime of her husband is
often considered as more fortunate than a woman who survives her husband. The whole
concept of Saubhagyavati is an institutionalisation of the woman subordination. A woman
dying on the pyre of her husband obtains post-salvation benefits for her husband, not for

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herself. In fact, she is required to pray that she should again and again be born as a woman
and be the wife of the same person in all her future incarnations.

Female Infanticide and Fetus Infanticide

Female infanticide meant the killing of a girl child by the mother. Having a girl is a great lia-
bility because of heavy demands of dowry, which a girl's father has to meet. Now with the
advance in technology, not the girl child but the female fetus itself can be eliminated through
amniocentesis. Sati surfaced again in Deorala, Rajasthan and fundamentalism and
obscurantism combined to legitimise it. A fresh legislation to ban sati was passed and a law
banning amniocentesis has been enacted in Maharashtra. The Prime Minister recently declared
in his Independence Day speech that the Central Government also proposed to impose such a
ban. Although female infanticide is forbidden by law it exists in some parts of the country
even now.

Dowry Death

One more addition has been made to this category of violence. It is known as dowry death.
Section 304 B was added to the IPC to define the offence of dowry death. In recent years,
women have been killed by their husbands or his relations for their failure to bring adequate
dowry. Some times death takes place from such torture or some times she may commit
suicide or she may be killed. Dowry has been a practice since long but has taken such
dangerous and violent form in recent years due to the growth of consumerism and
acquisitiveness in society. This is a very good example of how disparities of income and
wealth affect social relations and marginalise the powerless.

(b) Domestic Violence

Home was always considered to be a place where the law was supposed to intervene least.
Home is governed by the law of family, which for a long time was held, to be autonomous and
outside the control of the State law. But this autonomy of the home could be a license to the
male members to impose their will on its women members. Wife/Woman beating and even
battering took place within the four walls of the home. Market, which means place of work,
was not open to women and the home was a place where they lived subject to control of the
menfolk. The State authorities were reluctant to entertain complaints from wives against their

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husbands. The common law as well as the statutory law treated woman as the property of man.
With the growth of the Feminist movement, the home could not continue to be the impregnable
citadel of male dominance.

Specific legislations have been passed against domestic violence in advanced countries. In
India, in recent years, many new provisions were added to the criminal law, which made acts
of cruelty against women punishable 2. If such cruelty and harassment lead to the death of a
woman in abnormal circumstances, and such cruelty or harassment was in connection with
the demands for dowry, the husband or his relations to whom such cruelty could be traced
would be held guilty of causing her death. Various changes were made in the Code of
Criminal Procedure as well as in the Indian Evidence Act to support the prosecution for the
above offences. The onus of proof was shifted to the accused after the basic preliminaries were
proved3.

The trial of Kiranjit Ahluwalia in England, which resulted in her release from prison recently,
shows the complexity of domestic violence. Kiranjit was a housewife who had withstood vio-
lence from her husband for a long time. She was terribly afraid of him and could not have put
up any physical resistance to his muscular advances. He inflicted on her burns of a cigarette
end. Only the earlier night she had been subjected to torture of an unbearable type. In the
morning while her husband was asleep, she threw petrol on him and set it to fire merely to
show him how painful such burns could be. Although she did not intend to kill him, he died
and she was prosecuted for murder. According to the established law, she could not plead that
she did it in self-defence or out of sudden and grave provocation. The torture was inflicted at
night whereas her retaliation had come some hours later. It could therefore be called a
pre-meditated murder. She was sentenced to 10 years of imprisonment for the offence of
murder. Woman's organisations crusaded on her behalf and her appeal was admitted on the
ground that the judge had misinformed the jury regarding the law of provocation. The Court
of Appeal set aside her conviction for murder and ordered retrial. The most significant gain
was that the definition of provocation was relaxed so that any temporary cooling off period
could be considered as a boiling over period. In the retrial, the judge admitted that she had
suffered violence and abuse and reduced her punishment to three years' imprisonment. The

2
Section 498 A of Indian Penal Code.
3
See Sathe 1993, Towards Gender Justice, Research Centre for Womens Studies Gender Series, Series Editor- Meera
Kosambi

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Ahluwalia case shows that traditional legal doctrines of self-defence or sudden and grave
provocation have to be re-examined in the light of the reality of domestic violence and the
powerlessness of women.

(c) Sexual Assault

The legal provisions contained in the Indian Penal Code regarding sexual offences clearly reflect
the gender bias and the hold of the patriarchal ideology. Section 375 of the 1PC, which
defines the offence of rape, lays a great emphasis on vaginal purity by making penetration of
the penis as an essential condition of such offence. Any molestation of a woman short of such
penetration is not rape and is most often treated under section 354 as amounting to outraging the
modesty of a woman. There are cases in which the accused has walked out with a
punishment of 2 years' imprisonment for serious molestations such as inserting fingers in
the vagina or stripping the woman. In recent years, the Supreme Court has held that
penetration need not mean penetration of the male organ with emission of semen and
rupture of hymen. But we feel that the offence must be redefined so as to punish acts
which constitute sexual assault on a woman. Sexual assault need not be defined in terms of
vaginal abuse alone but should include acts which cause molestation which are more
serious than mere outraging the modesty but do not result in actual sexual intercourse.

Section 375 of the IPC requires the prosecution to prove that the sexual intercourse had been
without the consent or against the will of the prosecutrix. In order to imply her consent, the
defence often undertakes character assassination of the victim in the course of her
examination in chief and cross examination. There has been an opinion in favour of
disallowing questions regarding past sexual history of the rape victim except the questions
relating to her sexual relations with the accused. However, such exclusion has not been
legislated. The Supreme Court has in recent judgments held that even a prostitute is entitled to
the fundamental right to live with dignity and therefore her being a prostitute would not
mitigate the evil of a rape on her 4 . The law also did not treat the rape victim on par with
the complainant in any other offence. Her testimony was required to be corroborated. The
Supreme Court has now done justice to her by treating her testimony like the testimony of
any other complainant 5 . Her testimony can now be admitted without corroboration if it is
4
Maharashtra v. Madhukar Narayan Mardikar, AIR 1991 SC 207.
5
Maharashtra v. Chandraprakash Kewalchand Jain, AIR 1990 SC 658

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otherwise trustworthy.

The law of rape does not punish a man for having sexual intercourse with his wife without her
consent or against her will. This provision on marital rape is based on patriarchal notion of
marriage. A woman who enters into a wedlock is supposed to have consented to sexual
intercourse as and when the husband wishes. This feudal concept of marriage has survived the
equalitarian provisions of our Constitution. What is surprising, however, is this that the age
of consent for such marital rape remains at the age of 12 years even after the age of consent
for rape in general in section 375 was raised to 16 years. Therefore sexual intercourse by a
man with his own wife, the wife being not under 15 years of age, is not rape. Section 376
provides punishment for rape which is minimum 10 years imprisonment. The punishment for
rape against a wife who is above 12 but below 15 is 2 years. If the wife happens to be less
than 12 years of age, the person will be guilty of rape and be liable to 10 years imprisonment.
What is most surprising is this that a sexual intercourse with a wife who has been judicially
separated by the husband without her consent or against her will is punishable only by 2 years
of imprisonment. This provision was made as late as in 1983. This shows how strong is the hold
of the patriarchal ideology on the law makers of India even today. In Mathura case6, the
Supreme Court acquitted two police constables who had been accused of raping a tribal girl
Mathura. This decision was severely criticised. Parliament in 1983 made special provisions
against rape by police of women in custody and prescribed stringent punishment against those
guilty of custodial rape. The law now prescribes minimum punishment of 10 years for
custodial rape by the police.

It has, however, been observed that mere prescription of higher sentence is not sufficient to
ensure adequate punishment of the offender The law gives discretion to the judges to give
lesser sentence below the statutory prescription if there are good reasons for it. In recent years
it has been observed that even the Supreme Court has reduced the sentence below the
statutory period on most unconvincing grounds In Suman Rani the period of sentence was
reduced on the ground that the rape victim's character was not above board. In the review
of the case, the Court reaffirmed the lesser sentence on the ground that the offence had been
reported late by the victim. In a recent case, rape convicts were sentenced to three years
imprisonment on the ground that one of them was only of 21 years of age and another of 24
years of age. The fact that the rape victim was also only 21 years of age hardly seemed to

6
Tukaram v. Maharashtra AIR 1979 SC 185

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matter in the determination of the punishment. These cases show that the judges of the
Supreme Court have thought of rape as a human lapse caused by irresistible sexual desire and
condonable as a human weakness.

Violence for Woman's Flesh

Woman is considered as property of man and is not treated as a human being or a person of
independent existence in the man's world. Adultery is an offence in criminal law only in
respect of a married woman. If a woman is seduced, the father or husband can claim
compensation only for the loss of services. Woman is used for advertisements and often the
consideration given to her for posing for an advertisement is higher in proportion as she
exposes her body. The extreme example of this commoditisation of woman is of
prostitution where she is required to sell her body. Prostitution is recognised by the
patriarchal ideology as a necessary evil. It fulfills inherent male desire for promiscuity
without jeopardising the patriarchal institution of family. It also serves the purpose of setting
an example of bad womanhood before women in general so that they accept the position of
subordination accorded to them by the patriarchal ideology willingly. The law against
prostitution does not punish those who buy female body. It punishes those who offer their
bodies publicly. Violence is used to kidnap or abduct girls for prostitution, it is used to force
such girls to sell their bodies and it is also invoked against those who attempt to escape
from it. The law against prostitution does not punish women who sell their bodies willingly. It
punishes those who compel others to sell their bodies and live on the earnings of such sale
of body. However, the law acts more often against the helpless women whom it is supposed
to protect.

Constitution and Gender Justice

The Constitution of India is a social document and visualises social transformation leading to
a just social order7. It contains a charter of fundamental rights, which cannot be taken away or
abridged by the State whether by law or by executive action or even by judicial process 8. The
Constitution provides that the State shall not deny equality before the law and equal protection

7
Article 38
8
Article 13.

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of the law9. The Constitution forbids discrimination on the ground of sex10. Women are
entitled to vote11 and are entitled to contest election to any office. A woman is entitled to the
fundamental right to life and personal liberty guaranteed by article 21 of the Constitution,
which includes the right to live with dignity. It is therefore necessary to examine our laws as
well as judicial decisions from the perspective of the ideal of gender justice. Our laws even
today are very much dominated by the patriarchal ideology. They discriminate against women
in a number of ways. In the interpretation of these laws, the courts have also added their
own patriarchal bias.

The members of various political parties have exposed themselves in their true colours by
opposing the bill for women's reserved seats in Parliament and the state legislatures. Their
objection that the bill did not provide for reservation in favour of women of the backward
classes and the minorities is a facade for their real grievance that men would lose so many
seats Since there is no reservation in legislatures for men belonging to backward classes or the
minorities, why should only women of those categories be provided such reservation? If
women are given reservation as being women, those seats would obviously be divided among
women of all categories. Electoral considerations would definitely weigh in favour of seats
being given to the backward class women.

What is therefore required is a campaign for sensitising men to gender issues. Men need to be
educated and made conscious of such male chauvinism, which exists in them in spite of their
formal education and cultural sophistication. Even women share such male chauvinism and
often are seen to be upholding the patriarchal ideology. A campaign to conscientise men and
women against violence and, in particular, against violence against women has to be
intensified. Of course, mere education will not achieve such social transformation. Structural
changes in the political economy also would be necessary. Reservation of seats for women in
panchayats and municipalities provided by the Constitution (Seventy-Third Amendment)
Act, 1992 and the Constitution (Seventy-Fourth Amendment) Act, 1992 respectively,
preference to women in the appointments of the Judges on the Family Courts and the re-
quirement of a woman being a member of the grievance redressal agencies under the Consumer
Protection Act, 1986 are some of the measures taken for the empowerment of women. These

9
Article 14
10
Article 15(1), 16(2)
11
Art. 326 and Art. 325.

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might sound as tokenism but they could play a very significant role in bringing about change
in societal outlook towards women and women's issues.