I spent the past week working in Bhuj with Kutch Mahila Vikas Sangathan, a women’s collective I mentioned briefly in my last entry. KMVS began in the late 1980s as a small initiative, attempting to organize Kachchhi artisan women. As drought, earthquakes, industrialization, poverty, and migration slowly eroded away the profitability of their other sources of livelihood, these women turned industriously towards textiles and handicrafts to make ends meet. However, most of their profit was consumed by the ubiquitous “middle man,” alienating the producers from the fruits of their labor, and leaving the women in a continued state of disempowered destitution. KMVS began by helping these women expand discourse and mobility beyond the gender-restrictions imposed in their communities, and to organize collectively to produce, manage, market, and sell. It’s a decentralized collective, relying primarily on smallmahila mandals to generate at the grassroots level.
Over the years, the expressed needs of Kachchhi women have led KMVS to expand into more and more arenas, ranging from microlending to vocational training to literacy to reproductive rights to governmental representation of women. In this entry, I want to focus on just one of KMVS’s interests: ending domestic violence.
In most countries of the world, the paradox of domestic violence is that it is both ubiquitous and invisible. Domestic violence often happens under a blanket of social silence, and it is very hard to get accurate figures on its incidence. In India, most estimates posit that anywhere from 35% to 50% of women have suffered physical abuse at the hands of their partners. According to the Indian Ministry of Law and Justice, in urban households, figures are even higher, at 60%. But the survey laments that, in rural areas, surveillance of—and protection from—domestic violence is inadequate. The Ministry of Law and Justice estimates that only 5% to 10% of cases are reported to the police.
This may not come as a surprise. Cultural conditioning, structural gender inequality, and economic dependence are the reality for many women in Kachchh. Under these conditions, many are unable to justify leaving the homes of their husbands or marital families, even under severe abuse. Though this is hardly unique to India, age-old customary norms create an ecology that, tacitly or explicitly, condones spousal abuse and rape. And until recently, if a survivor were to “go public” with her case by reporting it to the police and invoking the law, there were few resources to protect her. Many would be forced to return to their abusive homes. Others would be evicted, with no shelter and no source of income. Rarely would the courts take cases of cruelty or abuse seriously. Indeed, one study found that in Mumbai, a majority of cases of cruelty of husband upon wife are registered only after the woman has been found dead, often either by dowry death or by suicide.
Even if we divorce law from society, until 2005, a survivor would have had little legal recourse. The penal code criminalizes a “the husband or the relative of the husband of a woman [who] subjects such woman to cruelty,” but providing substantive proof of cruelty is almost impossible, and the courts rarely respect it unless it is causally linked to dowry demands. For that matter, giving or taking a dowry itself is a criminal act, as is dowry death, an all-too-common form of femicide emerging from dowry disputes. However, one must prove that money or articles exchanged were connected to dowry demands, and it is easy to make such demands subtle enough to be imperceptible to judicial rules of evidence. Divorce was rarely allowed except on grounds of chronic brutality, which, again, is almost impossible to prove. Rape is criminalized, but according to the code, can only be committed by a man upon a woman, and does not apply if a husband forces non-consensual intercourse upon his wife. There were no laws to protect a woman from harassment or sexual assault.
In response to these shortcomings, and with intense involvement of civil society organizations, the government passed the 2005 Protection of Women from Domestic Violence Act (PWDVA). The PWDVA is a civil law which aims to give protection and resources to any woman who has suffered from physical, sexual, verbal, emotional, or economic abuse by any man with whom she is in a domestic relationship. For those of you folks who geek out on legal mumbo jumbo like I do, the text is fascinating. Even if you don’t, though, it’s worth taking a look at some of the differences between the Indian and Indiana contexts, in terms of addressing domestic violence. Because it is handled very differently.
Perhaps the most salient difference is that PWDVA is civil law, rather than criminal law. In common law jurisprudence, civil law tends to be about restitution, and criminal law, about retribution. Indeed, under PWDVA, no arrests can be made at all, unless the accused violates a court order. Instead, working within a culture where the institution of the joint family is paramount, the laws tasks service providers with facilitatating mediated reconciliation or compromise first, leaving legal actions such as divorce or protective orders as a last resort.
PWDVA describes itself as endeavoring to protect the right of women to a violence free life, to charge the state with facilitating that right, and to expand the legal understanding of domestic violence, so to allow women to act upon a much wider range of abuses. It does this in a variety of ways. First, it creates access to medical, legal, counseling, childcare, shelter, and protection services. If called upon, these service providers are required to provide the survivor with the requested services, free of charge, and to whatever degree of confidentiality she desires. Second, the survivor is able to choose her services. If she wants, she can bypass the police altogether, only seeking counseling or legal services. Third, it creates a class of “protection officers,” individuals whose sole duty is to facilitate the protection of the survivor. These are not police officers—in fact, they can belong to NGOs. A protection officer’s charge is to assist a survivor in filing a report, to coordinate and liaise with service providers, to educate the survivor as to her rights and options, and to ensure that the survivor is protected from further acts of violence. Fourth, the magistrate can issue court orders in response to the expressed needs of survivor, including protective orders, monetary relief, child custody, and residence orders preventing the abuser from removing the survivor, her belongings, or dependents from a shared household. Fifth, because this is a civil law, the burden of proof is much lower. Though orders can be appealed by the accused, a survivor only needs to submit a report of domestic violence for a magistrate to begin issuing orders. And third-parties can issue reports, as well, with the liability protection of a Good Samaritan clause. It also means that everything from minor verbal abuse to rampant physical abuse has the potential to be viewed on the same spectrum of domestic violence, if it is interpreted as a gender-based abuse of power and control, allowing the possibility of an early intervention. This is in line with the emerging spectral view of sexual violence in the states, beginning with sexual harassment and ending in sexual assault or rape.
I was curious about the choice of the term “domestic violence,” and its legal meaning in PWDVA. In the United States, many advocacy groups are pushing to replace the term “domestic violence” with the term “intimate partner violence.” The thinking is that intimate partner violence broadens the scope to include many forms of power violence, including ones that occur in intimate relationships which are not confined to a household, marriage, or domestic setting. It also inherently includes sexual violence, such as sexual harassment, sexual assault, and rape. Finally, it transcends boundaries of class, gender, and sexuality, to some extent, by not presuming that domesticity is inherent to intimacy.
In India, however, the term “intimate partner violence” may constitute not a broadening, but a narrowing. Part of this is because PWDVA takes an interpretation of domestic violence that lies somewhere in between intimate partner violence and family violence. In the context of PWDVA, abuse of a woman by any man in the marital household equally constitutes domestic violence. That is, a husband, brother, father, brother-in-law, father-in-law, or any other male figure sharing a household can be held responsible for domestic violence in the exact same manner under PWDVA.
At first, that sounded a little strange to me; after all, only the husband-wife relationship is sexually intimate. Isn’t that power of a different kind? I was then reminded that a majority of married couples in India do not live alone, but live together in a joint family, where a range of different power relationships abound and interact, of which intimacy is only one. There are also economic relationships, social relationships, career relationships, residential relationships, familial relationships, cultural relationships, and age relationships.
I was also reminded that many Indian marriages are brought about not by love, but by arrangement. That’s a false dichotomy, of course. Many arranged marriages are also loving marriages, and arrangement is not the same as force. In many cases, it’s similar to having a friend set you up on a date. And it’s not like people in arranged marriages aren’t having mutually consensual recreational sex. But, nonetheless, especially in more traditional households, I can’t escape this transactional feeling surrounding an arranged marriage.
Now, here’s where I have to check myself, and try not be too hasty to pass judgment without reflecting on history and context. I have to remind myself that without machinery or servants, the duties of cooking, cleaning, washing, feeding, and caregiving are full-time. I remind myself that maintaining a steady livelihood, be it hunting or harvesting food, building protective shelter, or generating income to pay for both, is also full-time. It should be possible to split these jobs equally, but instead, these two full-time jobs were designated to gender roles: the first for the wife, the second for the husband.
I remind myself that elderly parents with only one daughter require a source of livelihood, which under these gender roles could only be achieved by marrying that daughter to a man. That elderly parents with only one son also relied on him as a source of livelihood, and the addition of a wife and children may require the additional support of a dowry if a woman is not permitted to work. That many people care to see their family name continue, and many communities care to see their traditions carry forward, and everybody loves an Indian wedding, and everybody loves babies. That these latter desires were often easiest to achieve by marrying within one’s own caste. By marrying not individuals, but entire families.
That’s one way of understanding the causal dynamic, anyways. But it conspicuously ignores the collateral inequities generated by the institutions of marriage and the joint family. The commodification of women. The fact that the woman’s role is inherently stationary and the man’s is inherently mobile. The mandate that each gender is required to fulfill their role and only their role. The household dynamic where the needs of the husband are the needs of the household, and the needs of the wife are silenced. In such a dynamic, the husband is a subject, and the wife is an object, a machine of labor, a helpless victim, anything but a being with agency.
I have no idea if this perspective is fair or delusional — I’m an outsider. But to the extent that this dynamic can be found — a marriage which is less of an intimate partnership, and more of an economic one — such a relationship naturally lends itself less to intimate partner abuse, and more to economic abuse. It’s a different sort of power, and it is abused in a different way. Indeed, the perpetrators of dowry violence are as likely to be in-laws as husbands. Outside of the dowry, you find other forms of economic abuse. You find wives who are refused food or shelter. You find prohibitions to enter certain rooms, to use the latrine, to bathe, to sleep on a bed. You find theft of a wives’ parents’ household, alienation of assets, disposal of household effects.
So the term “domestic violence” in India includes domestic intimate partner violence, but makes other forms of domestic violence actionable as well. Of course, the problem still stands that thousands of women who are in non-domestic intimate partnerships could be excluded from legal remedies. This is most problematic in areas where dating is taboo, where people cannot talk about their relationships openly or consult with others on what a healthy, loving relationship consists of, except within the context of a domestic marriage. And that sort of secrecy may actually encourage intimate partner violence, if only because many survivors would be hesitant to report it, for fear of revealing their relationship. Even if such abuse is reported, the culture surrounding it is a victim-blaming one. “She shouldn’t have been dating boys before marriage.” “She shouldn’t have been so scandalous.” “She should have told her parents.” You’ve heard it all before.
But even if the term “intimate partner violence” were to be introduced in India to try to capture these issues, the term “domestic violence” should not be abandoned. It’s possible that broadening a term too much can dilute our understanding of the gravity and seriousness of some power abuses in the context of intimate relationships, blurring them with other sorts of abuses such as elder abuse. But I think advocates here are right to argue that the term carries weight in the Indian context thatwill last for some time.
And it seems to be working. Support, both by women and by men, both by rural villagers and the urban elite, is growing for the PWDVA approach, and after counseling and mediation sessions with places like KMVS, rates of recurrence of violence are decreasing–and, perhaps more importantly, women are much more likely to speak out in the case that recurrence does occur.
Now, by now, I’m sure many of you have noted how gendered my language is. Indeed, the entire law is gendered. As with rape, under PWDVA, only women can be victims, and only men can be perpetrators. In any patriarchal society, this is still better than nothing. But of course, reality is always a bit goopier. Scores of cases exist where a woman in a marital household, such as a mother, mother-in-law, elder sister, or wife, is the primary perpetrator of domestic violence, be it economic, emotional, verbal, physical, or even sexual. You also have many cases of spousal abuse where the husband is the victim. Other than a protective order, no action could be taken in response to any such violence under PWDVA. None of India’s gay and lesbian couples in shared households would be able to use this law to seek protection or assistance in case of domestic violence. And thousands of Indians fall outside of the law’s neatly sliced binary categories of gender. Just last year, a tribunal on the rights of transgendered women was held in Bangalore. Most were survivors of intense violence and discrimination by their families and communities. Rarely were they able to obtain any work other than sex work. They explained how they were disenfranchised from government benefits, often simply because of bureaucratic forms which could not comprehend how one’s gender can be listed differently from last year’s form to this year’s. While a legally designated woman, transgendered or not, can appeal under PWDVA in theory, getting one’s status changed is almost impossible here, effectively disenfranchising the entirety of people who do not fit into the category of “woman” neatly enough.
The law strives to be inclusive of divorcees, widows, second wives, and other non-traditional survivors of domestic violence. But the gendered language of the law perpetuates the patriarchal notion that all power belongs in the hands of men, and that a woman can only seek relief by appealing to the state. For example, in Indian criminal procedure, you find a strangely-worded law called “Order for Maintenance of Wives, Children, and Parents”:
If any person having sufficient means neglects or refuses to maintain (a) his wife, unable to maintain herself…a Magistrate of the first class may, upon proof of such neglect or refusal, order such a person to make a monthly allowance for the maintenance of his wife…
It sounds like the wife is a plumbing system, doesn’t it? This property language is extended to children (as it is in the states) and to elderly parents, as well. And it’s alienating, as it so deeply institutionalizes a notion than men are the sole agents in a household.
The inscription of the gender binary onto the structural geography of Gujarat is considerably more marked than I’ve seen in the states. Here, women have their own lines in airport security, their own cars on trains, their own police stations, with women police officers at their disposal. Understandably, few people I’ve spoken to here want to give these institutions up, expressing that they are necessary buffers against patriarchy.
How can a fluid understanding of gender identity be reconciled with such a systemic bindary? It’s the age-old dilemma: do we revolutionize from the ground up, or do we accept the system, but try to work within it to mitigate its harmful consequences? I never know the answer. But I suppose PWDVA tries to do a bit of both. It’s a revolutionary step, in many ways. But it comes to force by both challenging and reinforcing gender roles.
In any case, no matter how well-written, every law takes material form through the people who implement it. And the cops and magistrates are old dogs. This law, and the civil society that supports it, are going to have to teach them new tricks. How they’ll bark, and if they’ll bite, remains to be seen.