1 in 3 women face domestic violence in India. Are we brushing this serious issue under the carpet?

BW Legal World initiated a Dialogue of Change in view of the International Women’s Day 2021, to bring real and enduring change one conversation at a time. BW Legal World in association with BW Businessworld hosted 50 women in law on March 06, 2021, at its virtual conference titled Gearing up for India@75: What Women Want—A BW Legal World Dialogue with Women Leaders in Law.

Here’s an edifying dialogue between the BW Legal World Managing Editor, Ashima Ohri and Prof Ved Kumari:

ASHIMA OHRI: Prof. Kumari, you've written extensively on criminal law and the juvenile justice system in India. What we often hear today is that laws in India are anti-men. Why in your opinion is that thought growing. We’re only trying to change things for the gender that has been suffering for a while now. How do we get everyone on the same page? 

VED KUMARI: Good afternoon, everyone. I'm happy to be here. I'm glad that you asked the questions which trouble a lot of people both men and women. My first point is that what we consider as Pro-women law is actually not pro-women. So, if something is not pro-women, how can it even be anti-men, I fail to understand. I say that they're not pro-woman, because even the laws which are meant specifically for women, for example, 498 A, which is the bane of all the male-bashing, saying that all women are misusing that law, first of all, let's get our facts correct. There are one in three women who are subjected to domestic violence. One in three married women. So, that is the extent of the problem we have. Men also get beaten up, I would want to know what is their percentage. What is the percentage of married men, who are subjected to domestic violence as a starting point of conversation? Then from there, how many of this one-third of married woman file complaints? How many of the men have been prosecuted for the violence that they caused to the women? 

All these questions are not asked because they are very difficult questions. The questions which are asked is,- are women misusing the law. I do not say that no woman would ever misuse a law like men misuse a law, women also misuse the law, but the number is so minuscule and also what counts for misuses is also an important question to ask. A woman files a complaint and then she withdraws, it is seen as if she was only trying to arm-twist, but it may that she's now trying to make her family function, family is important for her. So, if the family has turned around, or the other thing is also that her natal family pressure is so great that there might be other pressures like she does not know where to live, because she moved out of that violent house, went to her paternal house and nobody's welcoming her there either. Her children are in great trouble. There may be 1000 reasons because of which she withdraws, but we say oh, these are all suspect cases. So certainly, there is a lot the possibility of misuse that cant be ruled out. Today, the voice is a lot more because these are educated women who are into the urban setting  into the setting where they are comparatively more powerful. So, therefore, if the women are powerful, certainly, our marriages being hypergamous, they are into more powerful families, and therefore to challenge men in those families, there has to be a backlash, a poor woman abusing her husband, nobody worries about it. But if there is any misuse in middle-class families So, the man is even more powerful and gets the pinch a lot more. People in decision making, whether the judges, the policemen, they are lawyers, these are people from the same strata, they can relate to it a lot more easily. Then they vote for the agony of a poor man or a poor woman. So somewhere it resonates with us because all of us are in that scenario where we think, Oh, I know, I know my friend has been abused. So, all of us have experienced something of that kind at a personal level. But in all those experiences, our listening is only a one side, we do not know what is the other side story. So, I know my cousin I would know my uncle so I would know somebody who is related to my side, I know his story. Have we even found out what is the woman's story who's making the abuse, quote-unquote abuse? So that's one thing I think I would want to put a question on, but my other take was that the laws which are meant to protect women are actually not protecting them. It's just her namesake category there. 

For example, in the definition of 498A, it says 'if the conduct is such as is likely to cause grave injury to the woman, or to pressurize or to lead her to commit suicide so if the conduct is such. So, it is not a slap here or there or insult here and there, it has to be a grave injury. So, she should break her arm, she should break something, some grievous hurt should happen. Only that kind of injury is considered. That's not what women are complaining about. Women are complaining about the day-to-day violence they face in the house. There's no law to deal with that. And what I have noticed recently because I've been looking at the law from the gender perspective. The concept of domestic violence was recognized as early as in 1930s and 1940s by the Courts. But, as is the want of the husband they were beating their wife. As happens in most suicide, most families, the husband was beating. It's normalized there is no castigation of the husbands, and that's what we want to continue thinking about 2020 and 2021 also. The whole focus is on what the woman is doing. But what are the men doing have to stop beating their wives? “Thappad ”made such a big movie and such a controversial one. In my class every time this is a conversation, whether one thappad is enough? And they're all focusing on the woman was somewhere, some will say, No, she was right. Some will say she was wrong. Nobody none of my students say, why did the husband dare to even give one thappad? That questioning is not there. The whole questioning is whether the woman's conduct in that one thappad was right or not! The conversation is not whether that one thappad by the man was right or not! So, I think somewhere we need to change that. Then the other thing is, oh, if the husband gave one thappad, you also give one thappad. How can you give that one thappad? In our marriages, the marriages are hypergamous. The husband is taller, he's older, he is more educated, he is more financially sound, everything is more, women are not taught to give thappad’s when they were children. As siblings, we do not fight, we do not use thappad and legs and fist to deal with each other, we argue. Women argue. Men beat. So, they know how to use their hands and legs to kick and beat up, women don't know. So, when this husband who is taller and heavier and more bodyweight, how can you beat him up and if you do, do you think you're not going to get back much more retaliation. So, to say this on the spur of the moment that she should beat him up back. Does the system allow us?  I do think that there's a lot more critical analysis required, then to just get the other one 304B, comes into operation only when the woman is no more there. If she’s dead then what is the relief to her? In 1960, we got the dowry prohibition till date has it stopped? It's only increasing.  

How many women are actually claiming property? The men don't ask this question to each other, They can have a partition without much problem between two brothers. But if the sister asks partition, then it is seen as they are destroying the family. So, the whole attitude challenging of status quo so women should remain dependent on men, there is no effort in the law to change the structure, recognizing the work they do and putting economic worth to that work. Why every woman has to work outside and do double duties? Why can't her work at home be recognized as an economic activity of the house? Money comes to her if she's not spending money, she's saving a lot of money in the household and saving a lot more in terms of the mental health of people, providing comfort to the men. Men are able to go to work on time and be happy because the woman is looking after their needs. She ensures that he leaves the house on time. Then she should go to work also and the children should not be neglected too. Oh, she is working then who will look after the kids? Why did you not ask this question to the husband when he goes to work? So somewhere, we are not breaking away from this division of work between men and woman. In the public sphere, they should be equal. There should be no discrimination. But that is not sufficient.  I was listening to Ms. Khaitan’s conversation and a point she was making about retaining women.

Women can be retained only where married women are provided with childcare  So, it's not really just my goodwill to this woman, I have to ensure that the family care is taken care of. Fewer people will take up longer leaves to go for maternity leave, Even with this law which says childcare leave for two years, so, which employer would want to have women workers if they will bargain away for two years and you have to pay their salaries as well. So, if they are there for making money, why would they want to employ women! So, why should the law not say that when looking at promotions, we will want to see how much effort you put in your childcare for both men and women? So, maternity leave is fine because it is the body of the woman which is involved and she needs to recoupe, but why should be only women when it comes to the question of childcare? And it should be in the appraisal, that if you have children have you looked after them? What kind of a human being are you? So, when you are assessing appraisals you must consider the component of human care. How much time have they devoted to human care, if they cannot take care of their own families? If they cannot find time for their families, can they care for your company? There's no emotional attachment to the people they have given birth to. Can they have an attachment to the company? So, if the company starts thinking on those lines that human worth, human care is as important because your attachments to things come only when you take care. Otherwise, people will come and go.  They'll go somewhere else when they are offered more money. There's no kind of commitment. So, when we say women are taking care, women should continue to take care, we are saying women continue doing double or triple work. And then they are expected to be as efficient as men are. The recent thing which Procter & Gamble said, that is a good example - share the care. And they have done it across boundaries not only limited to married couples. They're not limited to only heterosexual couples. So, I think these are the kind of examples now we need to promote and think about and focus a lot more on that like Flexi timing, job- sharing, there are lots of examples available to ensure that women get into the workplace on an equal footing. Criminal Law is not the only area where we need intervention. Look at the commandments in the criminal law and rape laws. To date, we have still said she is the sexual property of the husband. From the age of 18, she cannot say no to the husband. Does she continue to be by law, not treated as subservient to the man? But we are far away from even normative equality, forget about substantive equality. 

ASHIMA OHRI: Very true, ma'am. That leads me to my next question: how do we course-correct? Perhaps organisations need to have better policies and mandates for having a crèche for small children at all workplaces if they truly wanted to retain them. 

VED KUMARI: Ashima, this one also on creche, the law says creche will be only when there are 20 or more women. Do men never have children? So, when you have a job even then you want women to look after the children. At the time of breastfeeding, it's okay for them to get the breastfeeding break. That's perfectly fine but after that why should not the men also look after their children? Why should not they also take the children to the crèche? Why should only the woman take the children to the crèches? So, while crèche is a good start, it should not be limited to women.

ASHIMA OHRI: Thank you so much, ma’am for sharing that powerful message with us. We hope India@75 will be brighter and better for all.

Note: The automatic transcription has been lightly edited for a better reading experience. Some names and parts of the transcription may carry inadvertent errors that we are in the process of editing. Thank you for your understanding.